Opinio Juris

I have blogged from time to time about the trial of Alberto Fujimori, the former President of Peru. Interested readers now have a new — and far better — source of information about the trial: Fujimori on Trial, a new bilingual Spanish/English blog sponsored by the Praxis Institute for Social Justice. Here is the blog's self-description:

Praxis Institute for Social Justice invites you to visit our bilingual liveblog and follow current developments in the ongoing human rights trial of former Peruvian President Alberto Fujimori.

Fujimori served from 1990-2000, and is suspected of committing innumerable human rights violations during his decade in office. These allegations have been documented by the Peruvian Truth and Reconciliation Commission (TRC) in its Final Report, published in 2003, and the trial against the former president marks the fulfillment of one of the TRC’s most important recommendations for preventing future human rights violations by the state.

This precedent-setting trial began on Human Rights Day (December 10, 2007) soon after Fujimori’s extradition from Chile, making him the first head of state to be extradited to his home country to stand trial for human rights violations. The trial holds great importance for the development of both human rights and international criminal law. The liveblog seeks to expand coverage of these proceedings and see that Fujimori receives a fair trial, while also ensuring that he is held accountable for any crimes he committed.

The Fujimori on Trial blog is one component of our Trial Monitoring Project funded by the Foundation Open Society Institute (FOSI) and in collaboration with the International Senior Lawyers Project (ISLP). It includes frequent posts by our expert national and international observers, news summaries, links to relevant documents, and observations and analyses by experts, students and victims of human rights violations in Peru. It is intended to be a resource for journalists, students, academics, human rights victims and the general public.

We invite English and Spanish speakers to join our dialogue and share their ideas and perspectives. Please share the blog with others!

As one of the directors of the Praxis Institute pointed out to me, the lack of international attention to Fujimori's trial may embolden the current Peruvian government to risk pardoning him if he is convicted. With luck, this blog will help raise the trial's international profile, making such a move far more politically costly.

Oxford University Press has just published my friend Nils Melzer's book Targeted Killing in International Law. Here is the description from the Oxford website:

A comprehensive analysis into the lawfulness of state-sponsored targeted killings under international human rights and humanitarian law, this book examines treaties, custom and general principles of law to determine the normative paradigms which govern the intentional use of lethal force against selected individuals in law enforcement and the conduct of hostilities. It alse addresses the relevance of the law of interstate force to targeted killings, and the interrelation of the various normative frameworks which may simultaneously apply to operations involving the use of lethal force.

Through a comprehensive analysis of treaties, custom and general principles of law in light of jurisprudence, doctrine and travaux preparatoires the author demonstrates that contemporary international law provides two distinct normative paradigms which govern targeted killings in situations of law enforcement and the conduct of hostilities. Based on the resulting normative paradigms, the author shows in what circumstances targeted killings may be considered as internationally lawful. The practical relevance of the various conditions and modalities are illustrated by reference to concrete examples of targeted killing from recent state practice.

The book argues that any targeted killing not directed against a legitimate military target remains subject to the law enforcement paradigm, which imposes extensive restraints on the practice. Even under the paradigm of hostilities, no person can be lawfully liquidated without further considerations. As a form of individualized or surgical warfare, the method of targeted killing requires a "microscopic" interpretation of the law regulating the conduct of hostilities which leads to nuanced results reflecting the fundamental principles underlying international humanitarian law.

The author concludes by highlighting and comparing the main areas of concern arising with regard to state-sponsored targeted killing under each normative paradigm and by placing the results of the analysis in the greater context of the rule of law.

The book is obviously very timely, given the debate (see, for example, here and here) about the legality of the recent U.S. airstrike in Somalia. I hope to organize a mini-symposium on the book in the near future. Until then, buy and read it for yourself!

How desperate is the ICTR to fulfill its completion strategy by dumping cases on Rwanda? Enough to disavow the NGO on which it has relied on for nearly 14 years:

The Prosecutor of the International Criminal Tribunal for Rwanda (ICTR) when presenting last week his motion in favour of transfer of genocide accused Yusuf Munyakazi to Rwanda, clearly distanced himself from the Non Governmental Organisation (NGO) Human Rights Watch (HRW), on which, however, the UN Court has relied on for the last 14 years for expert testimony.

Presenting his arguments before the Chamber, the prosecutor accused HRW of lack of credibility and having confused the collection of information on the violations of human rights in general and international criminal proceedings in an apparent attempt to rebuff HRW's contention not to send 1994 genocide accused persons to stand trials in Kigali.

He also affirmed that the HRW's sources were in fact "inadmissible and not very reliable".

Since the first indictment presented at the ICTR, the Office of the Prosecutor (OTP) has relied mainly on the collective investigation carried out by HRW and the book titled "Leave None to Tell the Story", which it presents as evidence in the majority of the trials.

The prosecution, moreover, has called in almost every trial as an expert witness, Dr Allison des Forges, official in charge of Africa for HRW, who is also a historian and specialist in Rwanda.

By "lack of credibility," the prosecutor really means "not letting us get away with allowing ICTR defendants to receive unfair trials in Rwanda." Which they will, as I have argued and as HRW has documented in detail.

Not suprisingly, HRW rejected the prosecutor's allegations:

Responding to the Prosecution's allegations, Ms Reidy informed the Chamber of their systematic compilation of reports, method applied and categories of people interviewed in their investigations of the Rwandan judicial system.

For example, among people questioned, she affirmed, were four current or former ministers of justice, 14 current or former judges, 11 current or former prosecutors, three current or former bar association presidents, 15 national or international NGO representatives and more than 100 Rwandan victims of various abuses of the legal system.

I understand the Security Council's eagerness for the ICTR to close up shop. But that eagerness cannot be allowed to override the rights of ICTR defendants.

Marty Lederman has kindly published a long post I have written on what — if anything — the Justice Case has to say about the criminal responsibility of government lawyers like Yoo. Here is the introduction:

Scholars who argue that John Yoo’s authorship of the infamous torture memos makes him complicit in various war crimes -– torture, illegal detention, etc. -– almost invariably cite the WWII-era case United States v. Alstoetter, commonly referred to as the Justice Case, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Here, for example, is what Scott Horton, an excellent scholar and one of our finest bloggers, has to say:

Can a lawyer at the Department of Justice be criminally liable for giving opinions that lead to the torture and abuse of prisoners in war time? The answer is: Yes. The precedent is United States v. Altstoetter. The sentence handed down was ten years, less time served awaiting trial. It’s a case for John Yoo to study in the period leading up to his inevitable prosecution.

I do not know enough about Yoo’s actions to venture a general opinion about their possible criminality. I do know something, however, about the Justice Case -– I am currently writing a book for Oxford University Press on the jurisprudence of that trial and the eleven other trials held in the American zone of occupation between 1946 and 1949, which are collectively known as the Nuremberg Military Tribunals (NMT). So I thought readers might be interested in a detailed look at what the Justice Case says -– or doesn’t say -– about the culpability of government lawyers who advise their clients that unlawful conduct is, in fact, lawful. The bottom line, in my view, is that as reprehensible as Yoo’s opinions were –- and they were indeed reprehensible -– the case provides far less support for prosecuting him than most scholars assume.

I hope readers will check out the entire post, along with Marty's excellent introduction, in which he discusses his general views on the issue. I completely agree with Marty and hope that readers will not misunderstand my position. I am not saying that nothing John Yoo and the other government lawyers did could ever be considered criminal. I am not saying that the Justice Case rules out the possibility of a future prosecution. Indeed, I can imagine — counterfactually — a situation in which the NMT would have convicted a government lawyer of complicity for giving his political superiors advice he knew full well violated international law. My position is simply that the Justice Case did not involve such a situation and that, as a result, the judgment has almost no precedential value for a future prosecution of Yoo and/or others.

As a brief follow-up to Sonya's post, it's worth noting that the IHT began trying Tariq Aziz, Saddam's deputy prime minister and the highest ranking Christian in Saddam's regime, earlier this week:

Iraq's former deputy prime minister, Tariq Aziz, was known as the 'Ace of Spades' in the United States' deck of playing cards of Iraq's most wanted.

But he was better-known as the regime's moderate public face, who fronted the cameras in the days before the US invasion with his trademark black-rimmed glasses and Cuban cigars.

Aziz has now gone on trial in Iraq on genocide charges, accused of approving the execution of scores of business people while the country was under economic sanctions.

He has been in US custody for the last five years and if he is found guilty, he could face death by hanging.

The 72-year-old entered the courtroom with a walking stick, looking frail and weak.

He and seven others are on trial for executing 42 Baghdad merchants in 1992, who were accused of raising food prices at a time when Iraq was facing stiff UN economic sanctions.

[snip]

Judge Rahim Hassan al-U'kaili says Aziz and his seven co-defendants will be charged with war crimes, genocide and crimes against humanity.

"Tariq Aziz didn't have any role in the issue of the execution of merchants," he said.

"However, his participation in the issuance of two resolutions which stipulated the following - each one who monopolises foodstuffs for commercial purposes should be executed, and his portable and non-portable properties should be confiscated."

Although I haven't examined the case against Aziz in any detail, the genocide charges are puzzling. The victims were merchants executed (almost certainly illegally) for price-gouging. So where is the specific intent to destroy a racial, ethnic, national, or religious group?

The following article was written by Sonya Sceats, Associate Fellow in International Law at Chatham House in London. It first appeared in The World Today, Chatham House's journal. I am reprinting it here for our readers who are interested in the more recent activities of the Iraqi High Tribunal.

Rowdy sessions of the Iraq High Tribunal attracted sensational daily news coverage while Saddam Hussein was being tried. However, following his grim execution in December 2006, coverage all but evaporated. The foreign press and most western monitors packed their bags and left, and television reporting in Iraq dwindled. Now even the United States Department of Justice, which initially provided key financial and political support, is quietly withdrawing its advisers.

So what is happening at the Tribunal and why are the Americans pulling out?

The departure of the American lawyers is hugely significant. In practical terms, it means that crucial technical assistance for the judges and prosecutors will be lost. From a more general perspective, it marks a watershed in the gradual turning inwards of the Iraqi High Tribunal. The desire of the Iraqis to try Saddam Hussein and other senior Ba’athists themselves, and their insistence on making the death penalty available, means that international involvement has always been low. But until recently, the presence of international advisers, and, in the courtroom, journalists and observers, ensured some connection with the outside world.

DYSFUNCTIONAL

According to insiders, the Tribunal is in a state of internal turmoil. Morale among the judges is said to be very low. For example, the judges who heard the case relating to widespread attacks on Kurdish villages in 1998 are reportedly disillusioned by ongoing political wrangling over the execution warrants for Ali Hassan al-Majid, better known as Chemical Ali, and two others found guilty – former defence minister Sultan Hashem Ahmed and Hussein Rashid Mohammed, a deputy chief of staff in the army. Powerful interests are resisting the execution of Sultan Hashem in particular because he is widely respected in the military and in Mosul, where his tribe is fighting Al Qaeda, and there are fears his execution will inflame the insurgency.

It seems likely that the US Department of Justice is withdrawing in a bid to disassociate itself from the high levels of dysfunction. Infighting and absenteeism among the judges have both become rife. This has caused a sharp drop in productivity which will in turn almost certainly delay the commencement of important new trials. Meanwhile the loss of international interest may have compounded the problems. With the departure of the press and most independent monitors, vital forms of external scrutiny have been lost.

GENOCIDE CASE IGNORED

The Tribunal has concluded two trials and is nearing the end of a third. The opening case concerning the massacre of 148 villagers in Dujail was the subject of intense scrutiny by the media, non-governmental organisations (NGOs), academics, and others. Key talking points included the courtroom antics of Saddam and his co-defendants and frequent boycotts by their lawyers, the challenging security context – several staff and defence lawyers were killed while the trial was in progress – and the important question of whether it was fair. Unfortunately, subsequent cases, involving crimes of far greater magnitude, have barely been reported or discussed. The Tribunal’s second, and arguably most important, trial concerned the series of chemical and other attacks launched by Iraqi armed forced on thousands of Kurdish villages in 1998. An estimated 180,000 people lost their lives in what came to be known as the ‘Anfal’ – spoils of war – campaign. Between August 2006 and June 2007, six leaders of the attacks including al-Majid were tried for genocide, crimes against humanity, and war crimes.

Charges were also brought against Saddam, who attended early sessions, but were dropped following his execution. Undoubtedly, his absence was the primary reason for such patchy news coverage. This is deeply regrettable because, in contrast to the Dujail killings, a relatively minor incident, the Anfal campaign was an iconic symbol of the barbarity of the Ba’athist regime. It is therefore understandable that many Kurds feel bitter that Saddam escaped accountability for these atrocities because of a prosecution strategy which prioritised Dujail to secure a ‘quick win’.

Lack of interest also means that ongoing problems and some modest improvements since the Dujail hearing have not been properly acknowledged. Low points included the removal of the first presiding judge, at the request of the Iraqi prime minister’s office, after he stated in court that Saddam was ‘not a dictator’, and another boycott by defence lawyers.

According to the International Center for Transitional Justice, the lone NGO monitor for the Anfal trial, defendants faced many challenges including impossibly vague charges, and a Tribunal failure to accommodate defence testimony; less than ten defence witnesses were heard.

On a brighter note, the proceedings were generally less chaotic. The quality of legal argument also improved – the prosecution made a strong case for the command responsibility of most defendants, proper defences were mounted and the Tribunal demonstrated increased competence in international criminal law.

From a legal perspective, the most important feature of the trial is the genocide verdict. This crime is notoriously difficult to prosecute because of the need to demonstrate a specific intent to destroy, in whole or part, the persecuted group, and this remains one of the few times it has been proved in court. The proceedings were closely followed by Iraqi Kurds. When the verdicts were announced – all but one of the defendants were found guilty – Kurds took to the streets in northern Iraq to celebrate. A decision to confiscate the assets of those convicted should mean their personal wealth is redistributed to the Kurdish communities they sought to destroy.

UPRISINGS TRIAL

A third trial, relating to the brutal suppression of mass Shi’a uprisings in the aftermath of the 1991 Gulf War, is expected to finish in the next month or two. Fifteen defendants including al-Majid are standing trial. According to observers, order has finally been achieved in the courtroom – it is even said that the presiding judge considers al-Majid a ‘model defendant’ because he asks legal questions and is generally courteous; a far cry from his behaviour during the Anfal proceedings. However, discipline in the courtroom is not equivalent to fairness and deep concerns remain over the conduct of this trial. In particular, its hasty commencement last August before investigations were complete, and the Tribunal’s refusal to delay proceedings, has clearly prejudiced the defence.

There has also been criticism of a decision to narrow the scope of the trial to events in Amara and Basra. This was clearly pragmatic – it was thought that more than a hundred defendants would be tried if all the related uprisings were included – however, it means linkage evidence necessary to establish command responsibility may not be presented.

At least four other cases are almost ready. They relate to the infamous gassing of Kurdish villagers in Halabja; the expulsion of Fayli (Shi’a) Kurds in the 1980s; the destruction of marshes relied upon by the Marsh Arabs; and the killing of eleven merchants. The last of these is politically significant because, although the crimes were comparatively small scale, the victims were Sunni and the Tribunal hopes this will counter Sunni perceptions that it is a tool of Shi’a and Kurdish vengeance.

SERIOUS FLAWS

There is no doubt that the Dujail trial was seriously marred by political meddling and a range of fair trial failings, including inadequate time for defendants to prepare their cases, and a lack of rigour in verifying the documentary evidence crucial to establish the guilt of Saddam and his co-accused.

However, the trial was not the complete train wreck many predicted. Most would agree that the standard of justice was an improvement on trials in the mainstream Iraqi criminal justice system. And despite enormous security risks, dozens of witnesses turned up to testify, allowing a detailed record of the killings to emerge.

Since Dujail, there have been some signs of progress. The judges have achieved authority in the courtroom and their skill in trying complex international crimes seems to have improved. And yet the remaining problems are grave. Political interference appears to be continuing – judges have been leant on by politicians to drop cases and initiate others for political purposes, and the chief prosecutor, Jaffar al-Moussawi, was recently removed after criticising the Tribunal’s ‘financial and ethical corruption’.

Many will maintain that Saddam and other senior Ba’athists should have been tried instead by an ad hoc international tribunal like those set up for the former Yugoslavia and Rwanda, however there was no support for this within the United Nations. And, the International Criminal Court cannot try crimes committed before 1 July 2002. Hence a more realistic criticism is that there should have been more international involvement in this Iraqi-led process.

While the original statute for the Tribunal allowed the appointment of international judges, the second statute restricted this to cases involving states; none have been heard yet, despite pressure from Iran and Kuwait. International advisers are also permitted but opposition to the death penalty by European and other countries means almost all such advisers have been American. The departure now of all but four of the American lawyers is merely the latest step towards the Tribunal’s international isolation.

The predictions are that the Tribunal will be wound down in the next year or two. Let us hope that the remaining trials receive the public attention they clearly need, from both human rights monitors and the international media.

The very first post I wrote for Opinio Juris -- more than two years ago, when I was guest-blogging -- was about the inequality of arms that exists between the prosecution and defense at the international tribunals. I recall spending hours on the post, mustering facts, honing my arguments, polishing my prose. I was proud of my first contribution -- yet its rhetorical power pales in comparison to the following e-mail, received yesterday by one of my students who is interning soon with a defense team at the ICTR:

From: XXXX
To: XXXX
Sent: Sunday, 20 April, 2008 11:37:14 PM
Subject: Useful Information in preparation for your internship at the Tribunal

Dear All,

Congratulations once again on having been accepted to the ICTR Internship Programme!

In preparation for your stay in Arusha and for your assignment at the ICTR, please find attached some useful information that may come in handy. Please note especially the following:

1. Once your flight to Arusha is confirmed, please send me your flight details so that I can make arrangements for your pick up from the airport Kilimanjaro International Airport). If you land in Nairobi (Kenya) or in Dar-es-Salaam (Tz) you may take a connecting flight to KIA (about an hour long) or you may take a bus/shuttle. The trip is about 9 hours long from Dar and 5 hours from Nairobi.

2. You will also find attached some accommodation options. You may try to contact the landlords right away, however, I would advise that you first see the places before you finalize your contracts. Please note that there's a lot more accommodation available than that listed. Some staff members may also be willing to let some rooms in their houses.

3. Remember, you are not obliged to bring a laptop except if you work for the Defence. The Office should be able to provide you a computer to work on.

Should you have any questions concerning your internship, do not hesitate to contact me.

I look forward to meeting all of you soon.

Warm regards,

XXX

I rest my case.

Since being unanimously acquitted by the ICTR Appeals Chamber in 2006, Andre Ntagerura has lived as a virtual prisoner in a UN safehouse in Arusha, unable to find a country that will take him. Last November, he filed a motion asking the ICTR to order Canada, his first choice, to grant him asylum. On Wednesday, the Court decided to hear what he has to say:

The President of International Criminal Tribunal for Rwanda (ICTR), Justice Dennis Byron, has granted an application to hear a motion of genocide acquitted former Rwandan Transport and Communications minister, Andre Ntagerura, who seeks relocation to Canada.

The former minister had asked the ICTR last November to order Canada to grant him asylum, stressing that it had systematically ignored the request for more than three years made by the tribunal's administration.

The decision was posted Wednesday on the tribunal's official website. The date for hearing has yet to be fixed.

Ntagerura had also requested the ICTR president to refer to the Security Council the Canadian authorities refusal to co-operate on the matter [relocation], but the argument was rejected.

If accurately reported -- I can't find the decision on the ICTR website -- Justice Byron's decision is rather surprising. Although Article 28 of the ICTR Statute requires states to "comply without undue delay with any request for assistance or an order issued by a Trial Chamber’," I find it very unlikely that the ICTR would actually order a state to grant Ntagerura asylum. I sympathize with his plight, and have strongly criticized states' reluctance to even consider acquittees' asylum requests, but I don't think states should -- or can -- be forced to take them. What does seem fair is precisely what Justice Byron refused to do: refer Canada to the Security Council, which imposed on states the duty to cooperate with the ICTR in the first place.

We'll see what happens. Readers who are interested in these issues might want to check out my essay "What Happens to the Acquitted," which will appear in the Leiden Journal of International Law in the next couple of months. It's availble on SSRN here.

ADDENDUM: Peter Robinson, one of the leading defense attorneys at the ICTY and ICTR, has used my article as part of his efforts to convince the ICTR to amend Article 99 of the ICTR Statute to include the following paragraph:

(C) Upon application by an acquitted person, the President may request a State, pursuant to Article 28 of the Statute, to allow such a person to reside within its territory. The President may report a State which fails to comply with such a request to the United Nations Security Council pursuant to Rule 7 bis.

Neither Peter nor I are optimistic that his efforts will succeed, but it's still gratifying to have some impact, however minor, on the practice of international criminal law!