Person of the Year – Fatou Bensouda

The face of international war crimes prosecution is now an African woman.  Fatou Bensouda was chosen to succeed Luis Moreno-Ocampo as the International Criminal Court’s Chief Prosecutor in December.  Bensouda has formerly served as Solicitor-General in Gambia, and as an adviser and trial attorney at the International Criminal Tribunal for Rwanda.  The choice of Bensouda will help the I.C.C.’s image in Africa where all of the crimes in cases being prosecuted at the court occurred.   When Bensouda takes over in June she will become only the second Chief Prosecutor for the I.C.C. and the first African.

Sudan

South Sudan gained independence in July as Omar al Bashir’s genocidal campaign expanded. Civilian targets in Darfur and South Sudan continue to suffer dozens of casualties weekly by aerial bombardments from the north, while the targeted killing of civilians has expanded to South Kordofan and Blue Nile regions where mass killings and mass rapes began before South Sudan officially existed, and continue to this day. Meanwhile Sudanese president/genocidaire Bashir has received less pressure and softer criticism from Western governments than other Arab leaders despite his body count being larger by magnitudes. Bashir has a warrant issued for his arrest by the I.C.C. but still managed to visit Malawi, Djibouti, Egypt and China last year with impunity.

Côte d’Ivoire

Laurent Gbagbo became the first former head of state to appear before the International Criminal Court, in December.  The former president of Ivory Coast was arrested in April after months of violence in the country which claimed 3,000 lives resulting from Gbagbo’s refusal to relinquish power after being defeated in the 2010 presidential election by Alassanne Ouattara. The I.C.C. is continuing its investigation into the situation in Ivory Coast where former chief prosecutor Moreno-Ocampo has described attacks against civillians there as widespread and systematic.  Pro-Ouattara forces are also suspected of ethnically motivated massacres.

Libya

On June 27th, Moammar Gaddafi became the second sitting head of state issued with an arrest warrant by the International Criminal Court.  Warrants were issued for Gaddafi for crimes against humanity following the February 15 uprising, along with his son and de-facto Prime Minister at the time Saif Al-Islam Gaddafi, and for Intelligence Chief Abdullah Al-Senussi.  The case against Moammar Gaddafi was terminated in November following his death.  The I.C.C. is working with Libya on possible avenues of prosecution of Saif Gaddafi who is in Libyan custody, deciding whether the trial will occur in Libya, The Hague or both.  Conflicting reports persist as to whether Al-Senussi has been captured or remains at large.

Kenya

The ‘Ocampo Six’ faced Confirmation of Charges hearings in September and October and expect a ruling on whether their trials will proceed at the I.C.C. in the first few weeks of the new year.  Six high rankings officials, including two candidates in this year’s presidential contest, are being charged with crimes against humanity relating to the 2008 post-election violence.  The ‘Six’ hopes of dismissal were bolstered by the Court’s decision in December declining to confirm charges against Callixte Mbarushimana for allegedly orchestrating attacks on civilians in the D.R.C. from abroad.  Mbarushimana has also been implicated in murders during the Rwandan Genocide and has been released in France.

Sierra Leone

The trial of former Liberian war lord and president Charles Taylor concluded in March at the Special Court for Sierra Leone.  Two months later contempt proceedings commenced upon reports that prosecution witnesses were being sought out and offered bribes to recant their testimony.  The judges are still in deliberation and a verdict is expected in early 2012.  Wikileaks released a 2009 cable showing U.S. diplomats trying to arrange to extradite Taylor for trial in America if he is acquitted at the S.C.S.L.  Taylor is currently on trial for his involvement in the Sierra Leonian Civil War and at trial has been accused of commanding the Revolutionary United Front, and using them primarily as a diamond pillaging force, killing and maiming thousands of civiallians during the war. 

 
Central African Republic

Democratic Republic of the Congo

Rwanda 

The International Criminal Tribunal for Rwanda wrapped up its last calendar year in 2011.  In July of 2012 the new International Residual Mechanism for Criminal Tribunals is set to take over the remaining work of the ICTR (and that of the ITCY in 2013) which is currently estimated at less than 4%.  Two former National Republican Movement for Democracy and Development leaders were sentenced to life in prison for their roles in the 1994 Genocide in December, meanwhile convicted Genocide architect, former Rwandan Defense Ministry Chief of Staff, Theoneste Bagosora’s life sentence was commuted to thirty-five years after appeals judges cleared him from charges surrounding some mass murders, while maintaining his conviction for genocide.  In light of the impending closing of the ICTR and improvements in the Rwandan judicial system, the tribunal made its first referral of a genocide case to the domestic courts in Rwanda.  Just five years previously the Tribunal refused to make such referrals citing the Rwandan court system’s inability to adequately administer justice.  Since its inception in 1994 eighty-three of the ninety-two people indicted by the tribunal have been arrested; sixty-three have been sentenced to jail terms spanning from nine months to life imprisonment; five accused are still on trial and nine remain at large.

This is the second in a 3-part year in review series on war crimes around the world in 2011.

E.C.C.C. – The Big Four Stand Trial

In what has been called the most important trial since Nuremberg, the Extraordinary Chambers in the Courts of Cambodia commenced the trial of former Khmer Rouge leaders Nuon Chea, Ieng Thirith, Ieng Sary and Khieu Samphan in December. The court has been rife with corruption scandals and many see current prime minister, and former Khmer Rouge soldier, Hun Sen as working behind the scenes to prevent more Khmer Rouge leaders from being brought to justice.

The trial chamber initially ordered the release of Ieng Thirith due to her advanced alzheimers disease, but the order was stayed in order for exhaustive efforts to be undertaken to improve her mental condition so that she could stand trail.

In the current trial the defendants are accussed of forcibly relocating political enemies from Phnom Penn to the Cambodian countryside where thousands were executed or died during forced labor. During the reign of the Khmer Rouge 800,000 people were killed and 1.4 million Cambodians starved to death.

Arab Spring Violence Yields No War Crimes Arrests

Governments in Bahrain, Yemen and most notably Syria violently suppressed political protests killings thousands of their own citizens this year. In Syria alone more than 5,000 citizens have died in the violence. Leaders of these countries have not yet been charged with war crimes.

Yemen’s president Ali Abdulllah Saleh fled his country for Saudi Arabia after being critically injured during an attack on his compound. Saleh signed an agreement in November to relinquish power in early 2012, and he is currently seeking to gain entry into the United States purportedly for medical treatment. Hundreds have been killed in the violence in Yemen this year, with more than a dozen this past week alone.

Syria’s Bashar al-Assad has faced increasing international pressure to resign but has yet to show any intentions of doing so. The Arab League voted in November to suspend Syria due to its continued violence directed toward civillians, but then offered to monitor a peace plan aimed at ending the violence allowing Syria to avoid expulsion. The Arab League monitoring efforts have so far been viewed as ineffectual and have been criticized for overlooking gross human rights abuses.

Violence in Bahrain occurred at a smaller scale with 25 civillians recorded killed. The violence which started after February protests was largely quashed after the intervention by international forces led by Saudi Arabia in March. Protests against the ruling Al Khalifa family continue.

Sri Lanka’s Internal War Crimes Investigation Flimsy

Sri Lanka’s internal investigation into alleged war crimes during the defeat of the Tamil Tigers in 2009, the Lessons Learnt and Reconciliation Commission, issued a report in November that all but exonerated the Sri Lankan military from any wrong doing. Human Rights Watch said the report “disregards the worst abuses by government forces, rehashes longstanding recommendations, and fails to advance accountability for victims of Sri Lanka’s civil armed conflict.” Western governments unsatisfied with the quality of the report are pushing for an international investigation. Former president, and accused war crimes perpetrator, Mahinda Rajapaksa recently visited China in an effort to shore up support against an international investigation. An estimated 6,500 civillians were killed during the final phase of the Sri Lankan Civil War in 2009.

Justice 40 Years In The Making In Bangledesh

The International Crimes Tribunal of Bangledesh began its first trial in November against Delawar Hossain Sayedee. Sayedee is charged with Genocide, rape and religious persecution, among other crimes. A total of seven, mostly former leaders of Bangledesh’s two main political parties, are set to be tried for crimes committed during the 1971 war for independence against Pakistan. A total of 3 million civillians died and hundreds of thousands of women were raped. The ICT was set up without the help of the U.N. and applies Bangledeshi law.

Regime Changes, War Crimes Continue In Burma

Burma’s government changed from military junta to a nominally civillian government in March for the first time since 1962. President Thein Sein signed a law permitting peaceful protests for the first time in Burma, and oversaw the release of 200 political prisoners. Despite these moderate reforms no serious effort has been taken to hold the former military junta accountable for alleged war crimes that include deliberately attacking civillian villages and mass rape. Further, Human Rights Watch charges that such abuses continue. In a report issued in July, HRW documented Burma’s use of prisoners as human shields for soldiers and using prisoners to clear mine fields by walking through them until a mine is detonated. Also in July, an Australian citizen, Htoo Htoo Han, confessed to war crimes he committed while working for the Burmese military regime. He recounted taking part in the murder of more than one hundred political enemies of the ruling party. International pressure for a U.N. war crimes investigation in Burma has waned due to the regime change in March.

Biggest Surprise

The world marked the death of two of the world’s most notorious war criminals in 2011; Osama bin Laden and Kim Jong Il . Bin Laden’s death by U.S. forces in May raised questions about the Geneva Conventions which you can read about on this blog here. The ICC launched an official investigation late last year into North Korean war crimes for its attack on South Korea in 2010.

Next up:  War Crimes 2011 Year In Review – Africa

San Marino became the first nation to ratify an amendment proposed at the 2010 Kampala Review Conference of the Rome Statute, which governs the International Criminal Court. San Marino deposited its ratification of the amendment to Article 8 at U.N. Headquarters today becoming the first nation to ratify the amendment classifying the use of weaponized gasses, poisons and hollow point bullets in conflicts not of an international character as a war crime. The use of such weapons is already outlawed in international armed conflicts under Article 8 2 (b) of the Rome Statute.

The amendment, initially proposed by Belgium, was one of three submitted at the Kampala Review Conference.  The other two amendments would begin to substantively define the Crime of Aggression, and eliminate the option of parties to the treaty to exclude I.C.C. jurisdiction over their nationals for seven years upon ratification.

President of the Assembly of States Parties of the International Criminal Court Christian Wenaweser issued a statement welcoming the ratification, adding that he hopes this will serve as a “… catalyst for other States to follow, both regarding article 8 and the amendments on the crime of aggression.”

Today is the world’s first International Criminal Justice Day. It marks the thirteenth year since the passage of the Rome Statute in 1998 that created the International Criminal Court.

Today the I.C.C. has 116 state-party members. There are currently six active investigations into situations in the Democratic Republic of the Congo, Uganda, Sudan, the Central African Republic, Kenya, and Libya. Criminal cases are currently being prosecuted for crimes occurring in Uganda, D.R.C., and C.A.R. The I.C.C. is set to complete its first trial against Thomas Lubanga Dyilo this year. It is changing the nature of international criminal law, and international law in general (pursuing prosecutions against sitting heads of state for example).

For foes of impunity, there is much to celebrate on the first International Criminal Justice Day even beyond the relative success of the I.C.C.  Largely successful ad hoc criminal tribunals in the former Yugoslavia, and Rwanda are winding down; and international criminal tribunals in Cambodia and Sierra Leone continue to prosecute new cases. War criminals are being brought to justice with increasing frequency, and a culture of rejecting impunity is growing around the world.

While there is a laundry list of things to lament about the current state of international criminal justice- from insufficient funding, to inequitable application, even to fundamentally flawed functioning- take this one day, in addition to remaining vigilant, to also celebrate the achievements of international criminal justice so far, and to hope for what international criminal justice can help do in the future.

In issuing an arrest warrant for Muammar Gaddafi, the International Criminal Court has demonstrated yet again that tyrants and human rights abusers around the world—even if they are heads of state–will not enjoy immunity from international law, and will be held responsible for their crimes, Citizens for Global Solutions said today. Melissa Kaplan, Deputy Director of Government Relations at Citizens for Global Solutions and Coordinator of the Washington Working Group on the International Criminal Court (WICC) said, “This ruling is an important first step towards securing peace and justice for victims in Libya and a critical development in the international justice movement.”

A panel of three judges at the Pre-Trial Chamber of the International Criminal Court ruled yesterday that evidence presented by Chief Prosecutor Luis Moreno Ocampo showed reasonable grounds that Gaddafi, his son Saif Al-Islam Gaddafi, and his intelligence chief Abdullah Al-Senussi committed crimes against humanity in a violent government crackdown of pro-democracy demonstrations in Libya earlier this year. The judges issued the warrants to ensure that the three men appear before the ICC, to prevent further interference in the on-going investigation, and halt the commission of additional crimes.

United Nations Security Council Resolution 1970 requires Libya to cooperate with the Court, but its leaders have already indicated they will not do so. The resolution mandates all ICC member states around the world turn Gaddafi and his allies into the Court if he should step foot on their soil. It also urges states not party to the Rome Statute to assist in the capture of the accused war criminals. Kaplan said, “We now urge the international community to fully cooperate with the Court to ensure that Gaddafi and the others named in these warrants are brought to justice. International cooperation is essential to resolve global challenges, building a safer, more secure world.”

In the midst of the armed conflict, there are critics who believe that the ICC warrants prevent a peaceful resolution that would permit Gaddafi to leave in exile. But public statements made prior to the arrest warrants being issued make it clear that Gaddafi will fight in Libya to the bitter end. Citizens for Global Solutions said, “Seeking a peaceful resolution to the conflict in Libya and seeking justice for Gaddafi’s victims should not be seen as mutually exclusive goals; one should not be sacrificed for the other. While we seek an end to the military conflict and promote political reforms, the ICC must be able to bring criminals to justice.”

Citizens for Global Solutions is a national membership organization that strategically promotes U.S. engagement with international organizations to solve global problems.  You can visit them on the web here.

Goran Hadzic, and Joseph Kony

Ratko Mladic was arrested today in Lazarevo, Serbia ending a sixteen year long manhunt (as predicted in our Year In Review article).  He was the Serbian military commander responsible for the Srebrenica massacre in which over 7,000 Muslims were murdered, and has been labeled Europe’s most wanted war criminal.

The two most notorious fugitive war criminals are now former leader of Serbs in Croatia, Goran Hadzic and Ugandan commander of the Lord’s Resistance Army, Joseph Kony.

Goran Hadzic is responsible for the ethnic cleansing of non-Serbs in Croatia from 1991-1993, and is the last war criminal indicted at the International Criminal Tribunal for the former Yugoslavia still at large.  Hadzic commanded the execution of 264 hospitalized prisoners of war in November of 1991, and oversaw the murder of hundreds of other non-Serbs in Croatia throughout his tenure as president of the attempted Republic of Serbian Krajina.

Joseph Kony, an ethnic Acholi, has commanded the LRA in a fight against current Ugandan president Yoweri Museveni for the past 25 years , after Museveni overthrew former Ugandan president, and ethnic Acholi, Milton Obote.  The LRA is infamous for kidnapping children throughout the region and forcing them to work as prostitutes or child soldiers.  Kony was indicted by the I.C.C. in .

Hadzic and Kony are the most wanted fugitive war criminals despite Omar al Bashir and Moammar Gaddhafi not yet being brought to justice, because as sitting heads of state, Bashir and Gaddhafi are not technically fugitives.

Last week the U.S. ‘took out’ Al Qaeda leader Osama Bin Laden. As an American, I cannot help but have a visceral reaction of delight. Such a major blow will surely expedite the end of ‘the war on terror’. Whatever your opinion is of that endeavor, we can all be relieved by its conclusion. If something happens that likely will hasten that outcome it can in some respect be universally viewed as a positive. But as a war crimes commentator, dispassionately looking at the letter of the law, I cannot help being troubled by the implications of the United States’ actions. This does not necessarily mean that either the international law or the assassination of Bin Laden was wrong, but it may indicate that reform is needed to reconcile these two worthy ends.

There have been plenty of articles written about whether it was legal or illegal to kill Bin Laden, and most of them are terrific and thoughtful. The problem is that there are so many fact patterns that could be gleaned from this case that it generates literally dozens of legal scenarios with different jurisdictions, different statuses for Bin Laden, and different characterizations of the killings perpetrated by Al Qaeda under his command. None of them are particularly useful, and certainly amount to no more than thought experiments for those with many better experiments to think about, myself included.

So I will focus on an overlooked and interesting wrinkle to these scenarios (while ignoring the most compelling, being that Bin Laden was not a legal combatant and therefore his summary execution was illegal) – that Pakistan is one of only four signatories to the second protocol of the fourth Geneva Convention, along with the U.S., to not ratify the protocol, declaring applicability of the convention to conflicts ‘not of an international character’ as well as to traditional state v. state ‘wars’. Al Qaeda conducted many terrorist attacks against the Pakistani government and Pakistani civilians including but not limited to multiple bombings of public spaces, mass murder of Pakistani intelligence officials, and rumored involvement in the murder of Pakistani PM candidate Benazir Bhutto. These attacks almost certainly surpass the threshold of the language ‘sporadic violent attacks’. So while Bin Laden, not being an actual state leader, controversially does not meet the international standard as a combatant in an international conflict, Pakistan could have granted a wider loophole to bring any enemies of their state under the purview of the Geneva Conventions. But they did not.  This means that as the official account of the Bin Laden assassination stands, it would have been unequivocally illegal. Because even in this conflict NOT of an international character, it is not the case that adversaries are allowed to murder unarmed and cowering combatants, nor can they allow foreign militants to do so on their behalf.  Still, it ashamedly feels good to have done so.  Perhaps exceptions need to be made for figureheads of wantonly murderous organizations. Joseph Kony may finally slip up under that pressure.

First, there has to be an armed conflict. In situations where peaceful protests are met with undiscriminating government violence the Rome Statute is not automatically applicable. There seems to be a level of severity of widespread and systematic violence that needs to be met for one-sided violence perpetrated by an organized political unit to qualify as ‘armed conflict’ under the I.C.C. purview.

Then there is a distinction of applicability in the Rome Statute between crimes committed in an international armed conflict and armed conflicts not of an international character. Rome Statute applicability for crimes committed in international combat kicks in when ‘grave breaches of the Geneva Conventions of 12 August 1949′ and ‘Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law’ have occurred. This includes willful killing or targeting of unarmed civilians.

This threshold is considerably lower than for conflicts not of an international character because the Rome Statute adds the disclaimer that it ‘does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature’ in domestic situations. So somewhere there is a line drawn where government suppression of ‘situations of internal disturbances and tensions’ and peaceful protests become more than ‘riots, isolated and sporadic acts of violence or other acts of a similar nature’ and become war crimes and crimes against humanity.

It is unclear which Middle East situations meet the first qualification for ‘armed conflict’. Do Jordanian stone throwers count? What about A.Q.A.P. militants in Yemen that also support the overthrow of Saleh? As for the second element, how widespread and systematic do attacks against unarmed civilians have to be to meet the crimes against humanity threshold? Hundreds are dead from attacks in cities across Syria and Yemen. Saudi troops have aided the Al Khalifa regime in the killing of dozens of civilian protesters in Bahrain, does that lower the threshold for war crimes to the international armed conflict standard?

According to I.C.C. precedent, once a determination that the element of armed conflict has been made, the threshold for atrocity is relatively low. For example Bahar Idriss Abu Garda, former J.E.M. leader in Darfur was indicted on three counts of war crimes for attacks on African Union troops that killed only twelve peacekeepers.

For widespread and systematic atrocities to have taken place against unarmed civilians the sufficiently grave death toll seems to be somewhere around one thousand. This was the case in the post-election violence in Kenya; and more recently in the conflict in Libya.

The Bemba case seems to suggest that situations where external forces are brought in to assist in the execution of illegal violence in an internal conflict, that conflict retains its non-international character.

Based strictly on Rome Statute language, and I.C.C. precedent only Libya has met the qualification for an official investigation by the Office of The Prosecutor of the I.C.C. Still, situations in Yemen, and Syria are extremely close to qualifying for official scrutiny for war crimes. Syria and Yemen are increasingly approaching the ‘sufficiently grave’ death toll threshold if they are not there already. As protests continue unabated, unless these nations undergo regime change, it appears it will only be a matter of time until ‘sufficiently grave’ violations become the case. Saudi Arabia’s participation in the ‘domestic disturbances’ in Bahrain resulting in multiple violent deaths and allegations of systematic and widespread torture may be able lead to classifying this conflict as international in character, but only if an evolution occurs in the classification of character of armed conflicts by the I.C.C. Situations in other Middle Eastern nations do not seem to meet the requisite elements to qualify for I.C.C. involvement. Unfortunately, it is necessary to add to the previous statement the qualification, ‘yet’.

Suspended Kenyan cabinet member William Ruto expressed frustration at his own party and blamed Prime Minister Raila Odinga himself for the post-election violence that has led to a war crimes investigation of Mr. Ruto and other current and former member of the Kenyan government. Mr. Ruto flies to The Hague this week to face charges in front of the International Criminal Court.

Bosiljka Mladic, wife of wanted war criminal Ratko Mladic, asked a court in Belgrade to declare her husband dead. She claimed that Ratko is dead and that she hasn’t heard from him in ten years. Serbian Radical Party members gathered outside the court in support of the Mladic’s, holding signs saying “General, don’t give in!” and “Stop terrorizing Mladic’s family!”

Rwandan genocide suspect Tito Barahira was arrested in France over the weekend in connection to the 1994 genocide. Barahira is alleged to have organized meetings where plans to attack Tutsi civilians were made, and leading the attack on refugees gathered in Kabarondo church other attacks against Tutsi civilians.

ECOWAS condemned today the massacre in the Ivory Coast town of Duekoue last week perpetrated by Outtarra supporters that resulted in over 1,000 deaths. Mass atrocities have now been committed by both sides of this conflict which appears either to be ready to escalate further or abruptly end. France has ordered an evacuation of its citizens in fear of the former while rumors circulate of Gbagbo making the decision to step down which would signal the latter.

Appeals in the case of former S-21 prison chief Kaing Guek Eav began at the Khmer Rouge tribunal yesterday with a contentious debate on the court’s jurisdiction and its right to try the accused, better known as Duch.

Prosecutors, the defence and civil party lawyers have all appealed the original judgment handed down last July, in which Duch was found guilty of crimes against humanity and grave breaches of the Geneva Conventions and sentenced to 30 years prison. Yesterday’s proceedings focused on the defence appeal, with lawyers Kar Savuth and Kang Ritheary charging that Duch falls outside the court’s mandate to prosecute “senior leaders” and those “most responsible” for crimes committed under Democratic Kampuchea.

In a rambling and often incoherent address at the outset of the hearing, Kar Savuth accused the tribunal of violating Cambodian law in its decision to try Duch, referencing documents including the 1991 Paris Peace Agreements and the 1994 Law to Outlaw the Democratic Kampuchea Group that he said restrict prosecutions of Khmer Rouge cadres.

“When there was a dispute between Thailand and Cambodia at the border, there was an appeal to the international community to really force Thailand to respect the law,” Kar Savuth said, drawing chuckles from the gallery. “When Thailand does not really respect these regulations, we say that Thailand is behaving unlawfully, and we believe that this tribunal would not really follow the footsteps of Thailand.”

Kar Savuth later added that because the Khmer Rouge were “lawless”, “whatever any individual did was not against the law”. He also questioned why former KR standing committee members So Phim and Ta Mok had not been identified as suspects by the court.

Ta Mok was arrested in 1999 before dying in custody in 2006. So Phim committed suicide in 1978.

Both Kar Savuth and Kang Ritheary also questioned why Duch could be considered one of those “most responsible” when the dozens of other prison chiefs of the DK era had not been arrested as well.

“Duch [was] merely the chief of a prison, similar to the 195 chiefs of prisons throughout Cambodia,” Kar Savuth said, adding that many former KR officials had been peacefully reintegrated into the government without facing charges.

“Even now at the Ministry of Defence, there are former Khmer Rouge cadres who have rank and status,” he said.

Terith Chy, head of the Victim Participation Project at the Documentation Centre of Cambodia, said the defence arguments were “probably more for the crowd than for the judges”.

“That’s our worry…. [that] people might buy what Kar Savuth has said, because he’s such a character, but we feel that these are not the legal arguments that [a] judge is looking for,” Terith Chy said.

“It’s obvious it’s unfair, why just one prison chief is prosecuted and why not others, but looking from the available evidence at the court, looking at the gravity of what happened in Tuol Sleng, looking at the responsibility of Duch … he’s the type of person to be prosecuted.”

Co-prosecutor Chea Leang said the jurisdictional challenge was illegitimate since it had not been raised during the initial hearing as required by court rules. That aside, she said Duch was clearly one of those “most responsible” for Khmer Rouge crimes.

“The policy of the Communist Party of Kampuchea was implemented by the security centres, and the security apparatus was the heart of the policy of the CPK in smashing enemies,” she said. “S-21 was the most important office in this apparatus.”

Civil party lawyer Martine Jacquin added that Duch had “full control over the actions of his subordinates and over everything that happened at S-21”, a facility in which nearly all of the perhaps 14,000 people who entered were eventually killed.

The accused himself spoke only briefly at the beginning of the hearing, telling the court that he authorised his lawyers to act on his behalf. Wearing a white jacket over a button-down shirt, he appeared frail and at times did not seem to be paying attention to the proceedings.

Eng Try, 56, of Kampong Cham province, said outside the court that he had lost his parents and six siblings to the Khmer Rouge and strongly opposed the defence team’s bid for acquittal.

“My suffering from the Khmer Rouge regime is tremendous. He should serve life imprisonment,” Eng Try said.

Prosecutors requested in their appeal that Duch receive a 45-year jail term, commuted from life in prison because of his excessive pre-trial detention. This issue will be discussed when the tribunal reconvenes today.

The first two formal investigations launched by the I.C.C. – in 2004 into the situations in the Democratic Republic of Congo, and Uganda – addressed violence that, by the time of state party referrals to the OTP, had gone on for over a decade. Even then it took two and six months respectively to proceed from state party referral to the commencement of formal I.C.C. investigation, investigations only authorized to investigate crimes occurring after July 1st, 2002, the date the Rome Statute of the International Criminal Court came into force. The Situation in the DRC was referred to the OTP on April 19th, 2004; the decision to open an investigation was made on June 23rd of that same year. The situation in Uganda was referred to the OTP on January 29th 2004; and did not come under formal investigation until July 29th, 2004 – meanwhile some of the gravest atrocities ever committed in the conflict between the Lord’s Resistance Army and the government of Uganda occurred in February of that year, nearly a decade after civil war had broken out.

The next investigations undertaken by the I.C.C. dramatically decreased the time from state complicit violent incidents to referral to the I.C.C. from 10+ years to two-two and a half years. The first U.N. Security Council referral to the I.C.C. was made on March 31st, 2005 regarding the genocidal campaign in the Darfur region of Sudan that occurred beginning in March, 2003. The situation in the Central African Republic was referred to the I.C.C. by C.A.R on January 7th, 2005 regarding violence committed by forces of the Movement for the Liberation of Congo in 2002 and 2003. The situation in Darfur proceeded to formal investigation within two and a half months on June 6th, 2005; while it took another two and a half years for the situation in C.A.R. to proceed to formal investigation on May 22nd, 2007.

The OTP made its first proprio motu decision on November 6th, 2009 to launch a formal investigation into post-election violence occurring in Kenya at the end of 2007 into the beginning months of 2008. This followed the precedent set by the situation in Darfur of the I.C.C. needing at least two years to proceed from even the most heinous state initiated atrocities to a formal investigation. This precedent was shattered by the response to the situation in Libya by the international community and the I.C.C.

The first incidents of violence in Libya under current investigation occurred on February 15th, 2011 during anti-Qaddafi protests. The U.N. Security Council voted unanimously to refer the situation in Libya to the I.C.C. (also an important precedent) for an informal investigation on February 26th – less than ten days after the initial violence. Just five days later on March 3rd the Office of the Prosecutor announced the launching of an official investigation of the Libyan Arab Jamahiriya. The time frame of just over two weeks – sixteen days – makes the situation in Libya, by far, the quickest of all situations under formal investigation by the I.C.C to proceed from state complicit violence to formal I.C.C. investigation. More importantly it marks the first ‘real time’ response by the international community, and the I.C.C. specifically, to occurrences of crimes against humanity.

The response to the situation in Libya could possibly change the way the international system works regarding international criminal justice. It is possible that this will mark a transition of the role that the I.C.C. plays in international criminal justice from one of primarily ending impunity for perpetrators of past war crimes and deterring future would-be war criminals, to actually stopping war crimes during their commission and actively preventing crimes against humanity in progress. Stronger cooperation and enforcement collaboration among nations will be necessary for this to occur, and it is likely that the progress made by the response to the situation in Libya was due to a confluence of political circumstances favorable to such an outcome rather than being due to the commitment of the international community to international criminal justice and to the institution of the I.C.C. Still, the progress made to this point is undeniable when compared with all previous situations under formal investigation by the I.C.C. The real test will come when the arrest warrants for Qaddafi and his henchmen are issued and when they are brought to final justice in The Hague.

Stephen Rapp, the U.S. Ambassador-at-large for war crimes issues, declared this week in Bangladesh that “(p)re-charging detention is not automatically a violation of international standards.” This statement could be taken innocuously – as arguably true; or it could be taken as an implicit nod of approval by the U.S. for the illegal detention and torture of suspected Bangladeshi war criminals by the International Crimes Tribunal in Bangladesh.

The I.C.T. was set up to prosecute crimes that occurred during the 1971 struggle for independence from Pakistan. As many as 3 million Bangladeshis were killed in the violence. Rapp visited with officials of the tribunal last week and repeatedly called for efforts to keep the tribunal transparent, open, and compliant with international law.

But the pre-charging detention of the type that the Bangladeshi security forces are accused of would be more akin to the controversial standards practiced by the U.S. military at Guantanamo Bay, than they would be in line with the principles of international tribunals such as the Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda that Rapp has previously served at.

Rapp said that he would request for Congress to authorize the U.S. to provide documentary support and aid for training of participants for the International Crimes Tribunal in Bangladesh as long as efforts were made to clean up the statutory language of the 1973 International Crimes (Tribunal) Act that authorized the creation of the tribunal.

Recommendations have been made by many international organizations including the International Bar Association to stop the I.C.T. from forcing self-incriminating testimony, to allow for constitutional challenges by defendants to tribunal jurisdiction and decisions, and to provide for ‘habeas corpus’ rights to defendants as provided for by Article 14 of the International Convention on Civil and Political Rights (I.C.C.P.R.) and Article 55 of the Rome Statute for the International Criminal Court. These recommendations are widely seen to be the international standards by which the I.C.T. needs to conform to.

Bangladesh, however, arrested five leaders of opposition party Jamaat-i-Islami last year on charges such as ‘offending religious sentiments‘ with the intention to prosecute them in connection with war crimes later at the tribunal. At least some of the suspects have been reported to have been tortured.

Another possible motivation behind this statement may simply be realpolitik – Ambassador Rapp, keenly aware of abuses occurring, wants to help guard against defendants crying foul at the tribunal if they are indeed guilty of war crimes.

Other international tribunals have successfully managed to avoid pre-charge detention of defendants. It is unclear whether Rapp’s declaration tacitly offers support of Bangladeshi actions; inadvertently undermines the international legal standards that the international community expects the tribunal to conform to; or whether it is an academic distinction without practical consequence meant to protect against impunity for war criminals that have had their civil rights abused. In the meantime it remains politically expedient for it to be all three.