International
Justice Map
March 2010 // An overview
on
the
latest developements in the field of international criminal law
British “universal jurisdiction”
doesn’t apply against its Israeli ally
A Westminster
magistrates’ Court sent in December 2009 an arrest warrant
against Tzipi Livni under a request of the lawyers who defended some
Palestinian victims of the last “Operation Cast
Lead” carried out by Israel from December 2008 to January
2009. At that time, Tzipi Livni was the Foreign Minister of Israel and
a member of the war cabinet during the Gaza offensive and for that; she
was accused of having committed war crimes. The judge refused to issue
the arrest warrant before being sure that Tzipi Livni was in England
for a conference in which she should participate. So, after an
erroneous tip-off of her presence, the arrest warrant has been dropped
out, under a general embarrassment of the British Government. It is not
the first time that an English Court sends an arrest warrant against
political representatives of Israel, as against the Defense Minister,
Ehud Barak two months before (September 2009).
The possibility to send such an arrest warrant against a national of
another state for crimes committed against nationals of a third state
derives from the 1988 Criminal Justice Act, which gives to English
courts the power to use the “Universal
Jurisdiction” to punish all those who commit, inter
alias, war crimes, based on the principle for which grave international
crimes have to be punish everywhere in order to avoid impunity.
Anyway, the arrest warrant against Tzipi Livni has created not only
political reactions by Israel menacing to exclude Britain from the
Middle East peace process, but also intense reactions from the same
British Government. Indeed, it is trying to increase the power of the
Attorney General, who is a political figure, giving him from one side,
the power to intervene each time when an arrest warrant has to be sent
by a court in order to approve it, and from the other side, the power
to block individually prosecutions. To sum up, the English Government
is coming back to a past situation, in which ministers could intervene
in individual cases. It represents an anomaly in the context of a
mature democracy in which the justice should be completely independent.
On the contrary, a new process of reform should affect the power of the
Attorney General to intervene into prosecutions, leaving to the
impartial courts the freedom to decide, in case of
international crimes, if prosecute or not persons without following the
political alliances, but only according to the objective evidences in
the hands of the judges.
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Cyberspace and the Law of Armed Conflict
Whether it is
between Russia and Georgia (Further information here) in summer 2008 or more
recently between China and the US (Further information here), the presence of cyber
attacks in the strategic environment of the States has been growing.
But can the Law of Armed Conflict (LAOC) regulate military actions in
cyberspace? Can an attack by a hacker, whether funded by a government
or acting on its own, be considered as an “armed
attack” under international law?
Recently, several Think Tanks (Further information here)
and US governmental agencies (Further information here)
have tried to develop appropriate answers to these questions. According
to them, challenges related to the development of cyber warfare force
us to look primarily at the consequences of these attacks. If the
effects, direct or indirect, of the attack could have been caused by a
conventional attack (destruction of critical infrastructure, human
casualties, etc.) then we might consider the cyber attack as a standard
“armed attack”. With this definition, the LAOC
doesn’t regulate minor attacks. In other words, the
definition of a “cyber armed attack” requires
further developments to include low intensity warfare.
To answer properly to an “armed attack”, we need to
identify the source of the attack. In cyberspace, it is almost
impossible to be certain about the source of the attack. More over, the
level of knowledge required to cause critical damage is relatively easy
to acquire, making traceability more complicated. Is the attack coming
from a foreign government? A private organization? An individual
revolted against the regime? Is the attacker using a third-computer to
conduct its strike in the anonymity?
These two questions challenge the tradition definition of
“armed attack” and show that cyberspace needs more
than the traditional LAOC to be regulated. The international community
needs to develop a comprehensive answer to the challenge of cyber
warfare within the next years. A first start could be the European
Convention on Cyber Crime that proposes preliminary
regulations of cyberspace, on the condition that the next international
framework on cyberspace includes the question of cyber warfare between
States.
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UN experts issue global study on secret detention linked to
counter-terrorism
The UN experts
on counter-terrorism and torture, and the two UN expert bodies on
arbitrary detention and enforced or involuntary disappearances issued a
wide-ranging study on states' use
of secret detention in connection with counter-terrorism activities.
The issue is analyzed under various perspectives. From the historical
point of view, the study deals with the evolution of the practice from
the Nazi Reich to other regimes, as the case of desaparecidos in Latin
America dictatorships of the '70s. The practice was reinvigorated in
western democracies after the terrorist attacks of 11 September 2001,
which provoked a radical change in the counter-terrorism policies.
Generally, many legislations extended the possibility to secretly
detain terrorist suspects, in the framework of the regime of
administrative detentions and through declarations of state of
emergency. In particular, the “high-value detainees
program”, carried out by the US led to the establishment of a
structured network of “black sites” all over the
world where suspected terrorist were secretly detained.
From a legal perspective, the human rights violated by the practice are
explored. The experts affirm that secret detention is prohibited by a
number of international law provisions that may not be derogated from
under any circumstances. The right to personal liberty and security,
the right to a fair trial, the prohibition of torture are some of the
international norms infringed by the use of secret detentions.
Furthermore, the practice can configure an enforced disappearance. If
committed within a widespread or systematic practice (as in the
counter-terrorism activities in the Global War on terror) secret
detentions can configure a crime against humanity.
The report also explores the current practice of a wide number of
States. 44 States replied to a questionnaire drafted by the authors,
and 30 victims of secret detention or their family members were
interviewed.
The 222 page study will be presented to the UN Human Rights Council in
March.
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Bangladesh appoints prosecutors for war crimes tribunal by
March
The government
of The People’s Republic of Bangladesh announced on 16
February 2010 that the prosecutors and investigators for the special
Tribunal for war crimes committed in the country during the war of
liberation should be appointed by the first week of March of this year.
The court was set up to lead fair and transparent trials against those
accused of war crimes committed during liberation war of 1971.
Bangladesh was a part of the former eastern wing of Pakistan and fought
to obtain its independence. This national liberation war is part of the
third indo-Pakistani conflict, Bangladesh having largely been supported
by the Indian government to obtain its independence.
The number of victims of the conflict is not exactly determined, but it
is estimated that a million of persons have been killed by the
Pakistani army and that eight or ten millions of the others had to flee
the country. The first victims of this conflict were the civilians,
particularly the farmers, fishermen and intellectuals. Hindus and women
were also largely affected, according to certain information, around
200 000 women were victims of sexual assaults. Until then, any
prosecution was launched against the authors.
The Bengali government received recently a support of 400 million US
dollars of the Japanese International Cooperation Agency, some of which
should be used to inquire on crimes against humanity and other grave
violations of human rights and humanitarian law committed during the
conflict, and to pursue the presumed authors. Last year, Bangladesh
government obtained also a financial and logistic help of the United
Nations.
Therefore, Bangladesh possesses the needed support to implement the
International Crimes Act of 1973. The appointment of the prosecutors
and the investigators, in charge of making the light on these facts and
pursuing the authors of these crimes, marks the first fruits of the
realization of the process of justice launched a few years ago in the
country.
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Senegal: Trial against former Chadian President
Habré still pending
Since 2000
several efforts have been made to prosecute Habré, yet
attempts have remained unsuccessful (see Trial
Watch). In 2006 the African Union (AU) decided that Senegal
should serve as the location of Habré’s trial. As
a consequence, several victims filed an action against Habré
in Senegal on September 16, 2008.
To date
Senegal has refused to take legal steps against Habré,
justifying this with the argument that the interna-tional community
must bear the costs of any legal proceedings. According to the Legal
Counsel of the African Union Commission, Ben Kioko, this problem is to
be solved in cooperation with the European Union (EU) in the
forthcoming weeks. Furthermore, the AU requires decisions to be made
inter alia on the place of trial and dura-tion of proceedings so that
the trial can be expected to start in the next few months.
In this
context a report published on February 3, 2010 by the Human Rights Data
Analysis Group (HRDAG) is of note for it presents evidence that
Habré knew about the conditions in Chad’s prisons
operated by his political police. The report is based on
2‘733 original documents from the Documentation and Security
Directorate (DDS) – the state security force (see report HRDAG).
The report
published by the HRDAG this February is a step towards dealing with the
past, while victims are still awaiting the trial.
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The African Union issues two recommendations in connection
with the international Justice
In the
aftermath of his 14th summit in Addis-Abeba on the
5th of February 2010, the African Union has expressed two
main recommendations in connection with the International Criminal
Court and with the international Justice. Both the recommendations let
us forebode the worsening of the relations between the ICC and the AU.
First of all, the African Union asked the emendation of the article 16
of the Rome Statute in order to press the Security Council to call for
the suspension of the arrest warrant against Omar El Bachir. This
request had been done before while the ICC sent an arrest warrant
against Omar El Bachir for war crime and crime against humanity- the
Pre-Trial Chamber previously rejected the accusation of genocide
because of the insufficiency of the evidences. The emendation of the
African Union occurred two days after the decision of the Appeal
Chamber to reject the previous decision of the Pre-Trial Chamber with
relation to the accusation of genocide.
The Omar El Bachir Case is also the reason why the African Union asked
for a clear definition of the application of the principle of immunity
in opposition with the due of cooperation for the states members with
the ICC by virtue of the articles 27 and article 98, namely in case of
the execution of an arrest warrant. In fact, several African and Arab
countries didn’t know what they were supposed to do
during the visit of the President Omar El Bachir on their territory.
Finally, the African Union asked for a restrictive use of the principle
of universal jurisdiction in particular by the non –African
countries against some African leaders. This principle allows a country
to prosecute somebody who is suspected to have committed a greave
breach of some international law whatever the nationality of the
suspect and whatever the place where the crime has been committed. This
competence exists in some international documents and has been
transcribed in the national law of some countries. In the Summit of
Addis-Abeba on 2008, the General Assembly of the AU had already
declared that this principle was an interference on the internal
affairs of States members, and therefore, was asking to all the states
members to not execute the arrest warrant based on this principle. In
this case, the African Union asks for the cessation the on-going arrest
warrant.
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