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Archive
Command Responsibility: The Mens Rea Requirement (February 2005)
“Command responsibility” is a legal doctrine under which a military officer may be held responsible for war crimes committed by subordinates. The paper traces the evolution of the doctrine from post-World War II jurisprudence to codification in modern international criminal courts and tribunals. The debate surrounding the doctrine focuses on the level of knowledge a commander must possess before a court will consider him or her responsible for crimes committed by a subordinate. This essay argues that a commander is liable when he or she “should have known” about subordinates’ criminal actions. (Global Policy Forum)
This Human Rights Watch essay examines the development of a “system” of international justice in the 1990’s, consisting of ad hoc tribunals, the International Criminal Court and other international mechanisms. It further assesses the challenges facing international justice and gives recommendations to strengthen the existing institutions.
This timeline tracks the development of international law from the Declaration Respecting Maritime Law in 1856 to the establishment of international tribunals for war crimes in the 1990's. (Crimes of War)
Kenneth Roth responds to Henry Kissinger' s criticisms of universal jurisdiction by stressing the importance of an international system of justice. He also points out the necessity for the US to embrace it, “even if it means that Americans, like everyone else, might sometimes be scrutinized”. (Foreign Affairs)
2007
America's Own Unlawful Combatants? (October 15, 2007)
In the aftermath of the September 2007 Blackwater shootings, lawyers for the US State, Justice and Defense departments debate whether private security contractors fall under the same broad definition of “unlawful combatants” which the Bush administration uses to justify detentions in Guantanamo Bay. Legal commentators criticize the Bush administration for failing to clarify the legal status of contractors before putting them into military roles. (Los Angeles Times)Portable Halls of Justice Are Rising in Guantanamo (October 14, 2007)
A judicial complex is under construction in Guantanamo Bay and will house a portable court room and a tent city for 550 court officials, lawyers, security guards and journalists. Some commentators argue the construction of the complex is not consistent with supposed efforts by the Bush administration to close the detention camp. Others argue that it shows the US commitment to try alleged “terror suspects.” (New York Times)Chileans Order Peru’s Ex-Chief Home for Trial (September 22, 2007)
Alberto K Fujimori, Peru’s former president, faces extradition from Chile for human rights abuses and corruption charges. Legal commentators suggest the ruling by Chile’s Supreme Court signals a victory against corruption and impunity. Lawyers see the decision as a “breaking point in international law” as it demonstrates the workings of domestic courts to hold former heads of state accountable rather than leaving it to political deals between governments. Lawyers also note the significance for Chile given its reluctance to preside over its own human rights abusers. (New York Times)The Challenge of Justice in Negotiating Peace (June 2007)
This paper, written for the conference “Building a Future on Peace and Justice,” studies the peace process in Liberia and Sierra Leone and makes recommendations for other post-conflict situations. In Sierra Leone, the initial granting of amnesty to war crimes suspects did not prevent the Special Court for Sierra Leone from prosecuting indicted suspects later on. In Liberia, the arrest of Charles Taylor actually simplified the peace process. These examples show that peace and justice are not necessarily mutually exclusive.World Court Asked to Look into Afghan Detainee Controversy (April 26, 2007)
Legal scholars Michael Byers and William Schabas seek to draw the International Criminal Court’s attention to “possible war crimes” by top Canadian military officials. The officials reportedly allowed the transfer of prisoners from Canadian to Afghan authority “despite an apparent risk of torture and other forms of abuse.” Although the ICC is unlikely to investigate these claims, the case raises important questions about what offences constitute war crimes. (CBC News)South Africa: Country to Host Permanent Court of Arbitration for Continent (April 18, 2007)
Aiming to “help African states settle their own disputes,” the Hague-based Permanent Court of Arbitration (PCA) plans to set up a regional facility in South Africa. 106 countries – including South Africa – have signed the Convention for the Pacific Settlement of International Disputes, which established the PCA in 1899. Unlike the International Court of Justice, which only deals with intergovernmental disputes, the PCA arbitrates between countries and non-state actors, including private individuals. (BuaNews)EU Given War Crime Warning over Somalia Aid (April 7, 2007)
Some legal experts charge that the European Union – a major financial supporter of the Somali government – could potentially face charges of complicity in “war crimes” committed by Somali and Ethiopian troops. This article from the Guardian addresses European culpability in the Somali crisis but not in other catastrophes, such as Iraq and Afghanistan, hinting at a biased approach to looking into international law violations. Further, this double standard means that the global community, often led by the West, tends to scrutinize some countries more closely than others for their roles in such abuses.Timid Justice (February 28, 2007)
“International law [has] yet to come to grips with the notion of a criminal state,” declares this Slate piece. The article suggests that by absolving Serbia of complicity in the Bosnian genocide, the International Court of Justice shied away from making a bold and authoritative ruling, for fear of “offending” Serbian sovereignty. But the author concedes that the complex legal definition of genocide constrained the ICJ to some extent to choose “the least invasive remedy.”2006
How Should Nations Respond to Atrocities? (November 27, 2006)
Considering developments in international criminal law since the Nuremberg trials, this Inter Press Service article debates the ideal conditions for prosecuting perpetrators of grave crimes against humanity. The author insists that funding for courts, location of trials, impartiality of judges and lawyers, and the involvement of victims are crucial factors that determine the effectiveness of the judicial process. While analysts often disagree about the best technical approach to delivering justice – criminal tribunals or truth and reconciliation commissions – most agree that whatever the process, “it should have independent resources and no political interference.”Justice for a Lawless World (August 10, 2006)
Those in power can no longer escape basic human rights standards, whether traditional customs or universal values. While some national courts have granted amnesties to human rights abusers, international tribunals have not accepted such a “culture of impunity.” Looking at domestic legal systems and international tribunals and courts, Integrated Regional Information Networks provides an in-depth analysis of the historical evolution of the concept of universal jurisdiction.International Justice: Developments in the Last 15 Years (July 21, 2006)
Integrated Regional Information Networks tracks the changes in the international community’s stance against human rights abuses since the end of the Cold War in 1991. This report outlines the flaws and benefits of different forms of judicial process such as hybrid tribunals and ad hoc international courts. The report also stresses the need to bring accountability without causing “resentment among the people in whose name justice is being sought.”AU Launches People’s Court (July 3, 2006)
Leaders at the African Union (AU) Summit in the Gambia witnessed the swearing-in ceremony of eleven legal counselors who will serve on the African Court on Human and People’s Rights. The Tanzania-based court will allow individuals, NGOs and states to present cases against governments accused of violating human rights. Following developments in the trials of former Presidents Charles Taylor of Liberia and Hissene Habre of Chad, the establishment of the court reflects the continent’s progress in promoting human rights and justice over impunity. (Integrated Regional Information Networks)Justice Unfettered? Internationalizing Justice in the Human Rights Era (July 2006)
The global community’s growing interest in fighting impunity for crimes against humanity has contributed significantly to the internationalization of law. This Integrated Regional Information Networks report examines the historically complex relationship between international criminal law and state sovereignty. The report further analyzes the controversial concept of “humanitarian” intervention, which some defend as a means to justice, but critics often deride as a tool used by powerful nations to meddle in smaller states’ affairs.Command Responsibility (January 10, 2006)
In late 2005 a jury in the US found former Vice Minister of Defense of El Salvador responsible of overseeing the torture and killings in his former country 25 years ago. The authors state that US officials, including Vice President Dick Cheney and Secretary of Defence Donald Rumsfeld, could face the same legal action under the “command responsibility” doctrine for authorizing torture in US prisons, such as Abu Ghraib. (Foreign Policy in Focus)2005
Saddam Trial a Signal to Dictators (September 29, 2005)
In Zimbabwe, dictator Robert Mugabe rules with an iron fist. Numerous human rights organizations and governments have accused Mugabe of crimes against humanity. Mugabe’s rule has also been notoriously marked by its censorship of Zimbabwe’s free press. In this Zimbabwean Financial Gazette article, however, author Mavis Makuni appears to circumvent these restrictions and sends a concealed warning to Mugabe that the Saddam trial “should be a signal to other dictators and abusers of power worldwide that their day of reckoning will come too sooner or later.”War Crimes – Have We Learned Anything? (April 18, 2005)
This BBC editorial looks at past and present war crimes and asks “are we no further forward than we were 60 years ago?” The author concedes that although there has been progress in prosecuting perpetrators of human rights abuses, he believes that “governments will never take enthusiastic action” against war crimes unless there is consensus as to what constitutes a crime against humanity.Afghans Seek Redress for Past Wrongs (March 10, 2005)
Afghans regard the appointment of General Abdul Rashid Dostum as chief of staff to Afghanistan’s armed forces as further evidence that the country’s war criminals will remain unpunished. Dostum is yet another individual accused of human rights abuses to enter government, making it increasingly unlikely that the state will ever try its war criminals. Some high level perpetrators cite participation in jihad as a reason why they should have impunity. Nevertheless, human rights groups call for complete reform of the Afghani judicial system. (Institute for War and Peace Reporting)ACLU and Human Rights First Sue Defense Secretary Rumsfeld Over US Torture Policies (March 1, 2005)
Human Rights First (HRF) and the American Civil Liberties Union are suing US Secretary of Defense Donald Rumsfeld on behalf of eight men who were incarcerated in US detention facilities in Iraq and Afghanistan. The suit claims the men were subject to torture and inhuman treatment. In this press release HRF states that Rumsfeld is directly responsible for this abuse, and thus in violation of the US Constitution and international law. The statement alleges that Rumsfeld personally authorized unlawful interrogation techniques, which included severe beatings.UN Report on Sudan Draws Mixed Reaction (February 2, 2005)
The rebel Sudan Liberation Army has spoken out against a UN commission’s finding that the atrocities committed by the government in Darfur do not constitute genocide. A Sudanese official responded that the government felt “relieved” and “vindicated” by this conclusion. Human Rights Watch states that the legal classification of the violence “does not matter,” and warns that such crimes against humanity warrant immediate justice, no matter what they are labeled. (Washington Post)UN Official Urges Afghan War Crimes Justice (January 30, 2005)
A survey of 2,000 Afghanis revealed that 69 percent of the population had been victims of war crimes, prompting an appeal for justice by the UN High Commissioner for Human Rights. Afghanistan has suffered over two decades of human rights abuses, from the Soviet invasion to Taliban autocracy and the subsequent war on terrorism, and many citizens claim that the government continues to protect war criminals. Following the survey report, President Ahmid Karzai “pledged to improve the situation.” (Reuters)US Terror War ‘Over-Reaction,’ Top Judge Says (January 17, 2005)
Richard Goldstone, first chief prosecutor at the International Criminal Tribunals for former Yugoslavia and Rwanda, says the global “war on terror” threatens international justice. He points to Abu Ghraib and Guantanamo prisoner abuse as reasons for more judicial oversight, and suggests UN Security Council reform as a way of “protecting the rule of law.” (Toronto Star)Dictators Beware! (January 13, 2005)
This International Herald Tribune article provides a succinct overview of international justice and gives specific examples of its administration, such as the use of ad hoc tribunals, the Alien Tort Claims Act and the International Criminal Court. The author is optimistic about the success of such mechanisms and raises an interesting hypothetical: Should international justice take precedence over “sanctions and war?”
2004
How Did Rape Become a Weapon of War? (December 8, 2004)
Amnesty International’s Lives Blown Apart report addresses rape and sexual abuse as “deliberate military strategy” rather than simply part of the “spoils of war.” The international humanitarian organization mentions current conflicts in Columbia, Iraq, Sudan, Chechnya, Nepal and Afghanistan as locations of such crimes, but BBC says “the use of rape as a weapon of war goes back much further.” This article and the original report address the fact that perpetrators often live with impunity because rule of law falls apart, women are ashamed and states lack political will to prosecute.UN Expert Speaks Out on Rape in Darfur (October 20, 2004)
After a visit to northern Darfur, UNICEF advisor on violence and sexual exploitation Pamela Shifman says rape and sexual violence constitute war crimes. Shifman hopes the perpetrators will face justice, and warns that sexual health problems will follow the outburst of violence. The various claims about Sudan—from “one of the world’s worst humanitarian crises” to “genocide” to sexual violence as a "war crime"—highlight the arbitrary nature of defining international justice. (Integrated Regional Information Networks)UK Alarm over Guantanamo Trials (June 25, 2004)
Voicing concern over planned US military tribunals for terror suspects held at Guantanamo Bay, UK Attorney General Lord Goldsmith argued the tribunals would not offer a fair trial in accordance with international standards. Critics fear that the Pentagon will control the process and that defendants may not see secret evidence against them. (BBC)France Slammed for Checking Rwanda Genocide Trial (June 10, 2004)
The European Court of Human Rights ruled that the French judiciary took an unreasonably long time to process cases related to the 1994 Rwandan genocide. Human rights groups, claiming that French courts have been unwilling to try suspected genocide perpetrators, welcomed the court’s rare move against a state. (afrol News)Brutal Logic (May 11, 2004)
When the US ratified the UN Torture Convention in 1994, the Senate noted that its "consent" was "subject" to acceptance of its own definition of "torture." For over a decade the US army has conducted interrogations with a lose definition of torture, keeping a "lawyer on hand during interrogations, for quick decisions on the degree of physical or mental pressure allowed." (Village Voice)Privatized Wars 'Need New Laws' (May 10, 2004)
An increasing number of private security personnel, contracted by coalition forces in Iraq, are employed by different companies and operate under different rules in an unclear legal framework. If these private soldiers breach international conventions, who should be held accountable? (BBC)Africa Won't Have a Second Chance (January 27, 2004)
The protocol for the establishment of the African Court on Human and Peoples' Rights came into force in January 2004. This International Herald Tribune article acknowledges the importance of a regional court for Africa but urges the African Union to take due care and not rush the establishment of the court.2003
Justice Undone: Many Afghans Want War Criminals to Go on Trial (June 13, 2003)
As Afghanistan attempts to establish the rule of law throughout the country, its people debate how best to prosecute the war criminals of almost 25 years of conflict. (Institute for War and Peace Reporting)
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