International Justice Map

June 2009 // An overview on the latest developements in the field of international criminal law

 

John Demjanjuk extradited to Germany

In May 2009 began the last chapter in the saga of the judicial proceedings against John Demjanjuk. The 89-year-old Ukranian was expulsed by the United States towards Germany where the Munich Court has accused him of being a guard in the Sobibor (Poland) extermination camp from March to September 1943  and, in this role, to have participated in the murder of more than 29,000 Jews.

This latest action has been the culmination of a long legal battle. American authorities had already stripped Demjanjuk of his citizenship twice – in 1997 and 2001. In 1988, Israel had accused him of being “Ivan the Terrible” and he had been sentenced to death for war crimes and crimes against humanity. However, the Israeli Supreme Court had reversed this decision because it was not satisfied that Demjanjuk’s identity as Ivan the Terrible had been adequately proven.

The current legal proceedings against Demjanjuk were facilited by the Central Office of the Repression of National Social Crimes in Ludwigsburg, which collects information on Nazi crimes and shares it with competent judicial bodies throughout the world. The proof against him is also based on the testimony of Thomas Blatt, 82, the last survivor of Sobibor who described the atrocious situation at the camp but was unable to remember Demjanjuk. Were a trial to take place, it would thus be difficult to prove Demjanjuk’s culpability without a way to show the exact level of his responsibility.

The Central Office of Ludwigsburg also deals with other Nazi-era criminals who have emigrated to the United States, including Ivan Kalymon, Johann Breyer, Josias Kumpf and Algimantas Dailide. No Nazi-era cirminal has yet been condemned in the United States as the American authorities have focused instead on stripping the  citizenship of immigrants who made false claims regarding their wartime activities.

Numerous suits against Nazi-era criminals have failed due to the advanced age of the accused and their inability to appear in court. Suspected criminals such as Charles Zentai, Heinrich Boere and Milivoj Asner have recently been declared too old or ill to be extradited or to stand trial. Others have escaped justice due to the lack of will on the part of government officials to try them.

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Universal jurisdiction is causing controversy in Spain

The principle of universal jurisdiction, codified in article 23(4) of the Spanish judicial organisation law, has repeatedly been at the forefront of the international political scene in the last few weeks. There are currently sixteen pending procedures regarding nine different countries on the basis of this law. These cases deal with the Rwandan genocide, murders in the Mauthausen concentration camp, the murder of Jesuit priests in El Salvador, the death of a Spanish reporter in Iraq and acts of piracy in Somalia.

This past month, important decisions have been taken in several of these cases. We learned in early May that Judge Baltasar Garzón had opened an investigation against those responsible for the United States’ policies on torture under the Bush Administration. This investigation is based on a complaint submitted by four men who had been detained at the Guantánamo Bay detention centre and takes aim at those who were in charge of the centre and who oversaw the torturous acts that were committed there.

On 4 May 2009, Judge Fernando Andreu announced the beginning of an investigation targeting several high-ranked officers of the Israeli army who are accused of directing a bombing in Gaza in 2002 in violation of the laws of war.

Judge Santiago Pedraz has also confirmed the case against several high-ranked Chinese officials, including the Minister of Defence and the Minister of Domestic Security. They are accused of having ordered the systematic attack against the civilian population and of thus being responsible for the murder of more than 200 people during the repression of uprisings in Tibet in 2008.

However, these judicial activities have provoked strong critiques. The Spanish Court has refused to open investigations on a number of occastions and has asked that some cases be transferred before the Supreme Court (Audencia Nacional). The Minister of Foreign Affairs, Miguel Angel Moratinos, has also announced that he would intervene in favour of a limitation on the principle of universal jurisdiction after he received the complaint against the Israeli officials. On 20 May 2009, the majority of Spain’s Parliament voted in favour of a reform that allow the use of universal jurisdiction only in cases in which the suspect is found in Spain (territorial jurisdiction) or where the victims were Spanish nations (passive personality jurisdiction). 

Universal jurisdiction in Spain is thus likely to face the same fate as that in Belgium, which bowed to diplomatic pressure to severely restricted its application of the principle in 2003.

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ICC: Towards an evolution of the notion of command responsibility?

On March 31st, 2009, upon request of the judges, the Prosecutor of the International Criminal Court amended the charges against Jean-Pierre Bemba. In addition to his individual responsibility, he is now held responsible for the exactions committed by the MLC (Movement of Liberation of Congo) in the Central African Republic (CAR) as their “military commander and superior.” The charges initially held that he was individually responsible, as well as jointly with or through another person. This case will thus allow the Court to clarify the principle of command responsibility. 

In an Amicus Curiae communicated to the Court, Amnesty International underlines that the Rome Statute provides for this mode of responsibility when the superior “should have known that the forces were committing or about to commit such crimes” whereas previous texts required that the superior knew or had reasons to know that his subordinates committed crimes. According to Amnesty, this new wording seems to impose a higher duty of surveillance upon military commanders or other types of superiors. It could be interpreted as the duty for superiors to be more proactive in looking for and obtaining information on the behavior of their subordinates. They could no longer hide behind their own negligence. 

It will be up to the Court to clarify the notion of command responsibility. 

In his defense, Bemba argues that he had provided Ange-Félix Patassé (the acting President of CAR) with troops from the MLC as part of an alliance and that it was him who gave the orders and should thus be considered as their superior. Between October 2002 and March 2003, these troops are alleged to have raped and tortured civilians in a systematical and widespread manner. 

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Rwanda petitions France and Italy to extradite suspected génocidaires

After the 1994 Rwandan genocide, numerous perpetrators fled abroad. Many of them nonetheless did not escape justice notably in Canada, Belgium, the United Kingdom, Switzerland, the Netherlands, France, Denmark, etc… (Cf. TRIAL Watch). When it comes to the crime of genocide, States have a duty under international law either to extradite accused perpetrators or to try them in their own justice system if they are found on their territory under the principle of “aut dedere aut judicare.” Two recent uses of this legal principle occurred in France and Italy.

Since the beginning of May, Rwanda has been preparing an extradition request against Emmanuel Uwayezu, a Rwandan priest who sought refuge in Italy at the end of the genocide and currently preaches under a false name in a church in Empoli, near Florence. The organisation African Rights has accused Uwayezu of participating in the killing of the Kibeho Marie Merci school group, of which he was the director. More than eighty students, aged 12 to 20, were killed during the attack.

This extradition request is based on a 1967 Italian constitutional law that authorises extradition for the crime of genocide. If the Italian government refuses the request, Rwanda could demand that Italy judge Uwayezu herself. In 2002, Abbey Athanase Seromba had been arrested in the same region near Florence and transferred to the ICTR, where he was judged and sentenced to life in prison.

France had refused an extradition request from Rwanda in October 2008. The Superior Appeals Chamber of Mamoudzou (Mayotte) had refused to extradite Pascal Simbikangwa in November 2008 because it deemed that the sentence he would face in Rwanda was unacceptable. 

The Court nonetheless decided to keep Simbikangwa in provisional detention on 30 April 2009. He is to appear before the Court during the month of June of this year to be questioned on the facts of the case.

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Chile: towards the 109th ratification act of the Rome Statute

On May 20th, the Chamber of Deputies of Chile approved a constitutional reform recognizing the jurisdiction of the International Criminal Court (ICC). The Senate had approved this reform a few days prior. The bill reasserts Chile’s primary jurisdiction over crimes covered by the Court’s statute and acknowledges the subsidiary jurisdiction of the Court, as provided by the Rome Statute. 

Congress’ adoption of this constitutional amendment will enable Chile to finally ratify the Rome Statute which created the ICC. This ratification will likely take place shortly. Michelle Bachelet, President of Chile, is scheduled to visit The Hague very soon and could use this opportunity to announce the good news. Since her election, Ms. Bachelet has made the ratification of the Statute of the Court a priority for her government in order to protect and promote human rights. 

This new ratification will raise the number of States who have ratified the Rome Statute to 109 out of the 139 who originally signed it. As for Latin America, this will leave only Guatemala, Nicaragua and Salvador as the only countries who have not yet ratified it. 

The Chilean amendment provides that the Court will only have jurisdiction over crimes committed after the Statute becomes effective in Chile. 

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The Iraqi Special Tribunal for Crimes Against Humanity

The Iraqi Special Tribunal for Crimes Against Humanity is renowned for its trial of Saddam Hussein, the former Iraqi president, but few know that the Tribunal continues its work to this day.  Indeed, the Tribunal continues to investigate crimes committed by the Baath Party Leadership from 17 July 1968 to 1 May 2003.  Since 30 December 2006, the date of Saddam Hussein’s execution, the court has been embroiled with continued controversy, as some foreign and Iraqi legal scholars have criticized the Tribunal for, among other things, US and UK inappropriate and influential involvement, indications of victors’ justice and the use of capital punishment.  

Far from the watchful eye of the western public, the Iraqi Special Tribunal continues to investigate, try and sentence – some even to death many to life imprisonment – members of  Saddam Hussein’s government.  In 2008, two dozen former Baathists went on trial for, what prosecutors argue, the execution-style murder of thousands of members of Prime Minister Nuri Kamal al-Maliki’s tribe.  Furthermore, fifteen have been accused of taking part in the brutal repression of the Shiite uprising of 1991, including Ali Hassan al-Majid al-Tikriti, “Chemical Ali,” the former Minister of Interior, Sabir Abdul-Aziz al-Duri, the former Director of military intelligence, Hashem Ahmed al-Jubouri as-Tai, the former Minister of Defence, Sabbawi Ibrahim, the former head of Mukhabarat intelligence agency, Abed Hameed Hmoud, a former personal secretary and bodyguard of Saddam Hussein, et Abdul-Ghani Abdul-Ghafour, a senior Baath Party member. Additionally, the Tribunal has been trying defendants for the murder of over 250,000 members of the Islamic Dawa Party. The defendants are accused of dumping bodies into vats of acid and the mass rape of women has also been reported. The Tribunal has also investigated the Al-Anfa and Djail massacres. As sectarian strife in Iraq intensifies, the Tribunal’s legacy may be the perception not of victors’ justice, but rather of Shi’a justice.

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East Timor: Enforced disappearances – efforts to be made

East Timor recently adopted a new Penal Code that lists enforced disappearances as a crime against humanity. This crime is defined as the detention, kidnapping or imprisonment of a person by the state or by a political organisation. The law also includes within its reach the refusal by the state or by a political organisation to recognise such a detention and the failure to give the victim’s family information regarding his or her status so as to deprive them of the protection of this law.

This law puts East Timor in conformity with the requirements of the declaration adopted by the General Assembly in 1992 as well as with the convention adopted in 2007.

According to these UN texts, enforced disappearances are crimes against humanity when they are practice on a wide scale and in a systematic fashion. This month, the UN Working Group on Enforced Disappearances determined that the criteria defined in article 7(1) of the Rome Statute on crimes against humanity applied to enforced disappearances. The Working Group will now study communications that it receives in light of the following criteria: the crimes occurred during a general or systematic attack against the civilian population and those responsible knew that they were taking place.

A number of states have failed their obligations to recognise and combat enforced disappearances, including Algeria, Kosovo, Bosnia Herzegovina and others. It is for this reason that TRIAL, through its Advocacy Centre helps the family of the disappeared to obtain justice by bringing their cases before international human rights bodies. 

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