Opinio Juris

First, by and large, the R2P doctrine has been misunderstood or misrepresented in calls to "invade" Burma. R2P is often implied to boil down to a simple equation: if a government is unable or unwilling to adequately protect its citizens, then the international community has a right to forcibly intervene to protect these people. The first part of this conditional is accurate, but the second is a gross oversimplification. R2P does not prescribe invasion any more than the Constitution of the United States mandates impeachment. Military intervention is only one component of the R2P framework, and one of last resort, at that; it is only to be undertaken when a series of specific conditions are met, ensuring that intervention is justified, well-intentioned, practical, authorized by the proper authority (i.e., the UN Security Council), and will not cause more harm than good.

Wielding R2P as a Trojan horse for invasion and regime change, as Robert Kaplan seems to desire, is harmful to the integrity and future viability of the concept, as well as to the more pressing concern of alleviating the Burmese people's suffering.

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.

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.

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.

(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.

"Kosovo is Serbia", "Ask any historian" read the unlikely placards, waved by angry Serb demonstrators in Brussels on Sunday. This is rather flattering for historians: we don't often get asked to adjudicate. It does not, however, follow that any historian would agree, not least because historians do not use this sort of eternal present tense.

History, for the Serbs, started in the early 7th century, when they settled in the Balkans. Their power base was outside Kosovo, which they fully conquered in the early 13th, so the claim that Kosovo was the "cradle" of the Serbs is untrue.

What is true is that they ruled Kosovo for about 250 years, until the final Ottoman takeover in the mid-15th century. Churches and monasteries remain from that period, but there is no more continuity between the medieval Serbian state and today's Serbia than there is between the Byzantine Empire and Greece.

Kosovo remained Ottoman territory until it was conquered by Serbian forces in 1912. Serbs would say "liberated"; but even their own estimates put the Orthodox Serb population at less than 25%. The majority population was Albanian, and did not welcome Serb rule, so "conquered" seems the right word.

But legally, Kosovo was not incorporated into the Serbian kingdom in 1912; it remained occupied territory until some time after 1918. Then, finally, it was incorporated, not into a Serbian state, but into a Yugoslav one. And with one big interruption (the second world war) it remained part of some sort of Yugoslav state until June 2006.

Until the destruction of the old federal Yugoslavia by Milosevic, Kosovo had a dual status. It was called a part of Serbia; but it was also called a unit of the federation. In all practical ways, the latter sense prevailed: Kosovo had its own parliament and government, and was directly represented at the federal level, alongside Serbia. It was, in fact, one of the eight units of the federal system.

Almost all the other units have now become independent states. Historically, the independence of Kosovo just completes that process. Therefore, Kosovo has become an ex-Yugoslav state, as any historian could tell you.

When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes–the man who now oversees the tribunal process for the Defense Department. “[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.’”

A four-page cable sent to American embassies says that execution as punishment for extreme violations of the laws of war is internationally accepted and points to the 1945-46 International Military Tribunals as an example. Twelve of Adolf Hitler's senior aides were sentenced to death at the trials in Nuremberg, Germany, although not all were executed in the end.

The unclassified cable was sent by the State Department to all American diplomatic missions worldwide late yesterday.

In it, the department advises American diplomats to refer to Nuremberg if asked by foreign governments or media about the legality of capital punishment in the September 11 cases.

"International Humanitarian Law contemplates the use of the death penalty for serious violations of the laws of war," the cable, which was written by the office of the department's legal adviser, John Bellinger, says.

"The most serious war criminals sentenced at Nuremberg were executed for their actions," it said.

The campaign against "victor’s justice" mainly targeted the Allied war crime trials rather than the German proceedings. The High Commissioners, especially John McCloy, were confronted with a growing flood of petitions, statements, and demands of German origin that all called for a revision of the sentences passed against German war criminals and heightened the expectations of the German public, especially after the German "Christmas amnesty".

The Americans endeavoured to alleviate this pressure by releasing about 60 prisoners at the turn of the year and installing a clemency board in March 1950. This board was to revise all sentences of the trials of war criminals by the US Army and the US High Commissioner. When it became clear in the course of the year that the West Germans were expected to provide a "defence contribution" due to the increasingly acute East-West confrontation, the statements of the German side started becoming more and more self-confident and demanding.

The result of the revision was announced in January 1951. It represented a major, though not all-out success of this campaign: of the 28 death penalties, 21 were converted to prison terms; 69 of the 74 prison sentences handed in for revision were reduced. 32 detainees were released immediately. In view of the magnitude of the committed atrocities - the massacres of the Task Forces, the shooting of partisans, the mass killings in concentration camps - the extent of the mitigation of the penalties was no less than stunning.

In doing this, the American occupation administration had actually greatly harmed, if not destroyed, the idea of legal prosecution of Nazi criminals. In the public perception of these sentences, the main point was not the act of mercy of the Americans toward the former enemy, which was meant to promote the political future of the fledgling West German state, but rather the associated putative admission that the war crime trials had been based on an inadequate legal, historical, and moral foundation. Thus, three quarters of the Germans rejected the revisions as insufficient, and even more regarded the seven confirmed death sentences as unjustified.

I would say it's like — as I explained to this fellow here — that one of the lessons of the genocide in Rwanda was to take some of the early warnings signs seriously.

Secondly, a clear lesson I learned in the museum was that outside forces that tend to divide people up inside their country are unbelievably counterproductive. In other words, people came from other countries — I guess you'd call them colonialists — and they pitted one group of people against another. And an early warning sign was — and it's hard to have seen it, I readily admit, but I'm talking earlier than 1994, and earlier than the '90s — was the fact that it become a habit to divide people based upon — you know, in this case, whether they were Tutsi or Hutu, which eventually led to exploitation.

Belgian colonial administrators took a liking to the Tutsi, whom they treated preferentially. This angered the majority Hutu. In 1933, the Belgian colonial administration passed a law requiring every Rwandan to carry an ethnic identity card. The lines between Tutsi and Hutu, which traditionally had been porous and informal, suddenly became permanent and legalized. The ethnic identity card requirement persisted after Rwandan independence in 1960. Tragically, the continued presence of this requirement accelerated the genocide, insofar as persons unable to produce a Hutu card simply were slaughtered.

The bulk of the peacekeeping effort fell upon the shoulders of the United Nations Assistance Mission in Rwanda (UNAMIR). This was headed by a Canadian, Lt. Gen. Romeo Dallaire, and was constituted by soldiers from several countries. UNAMIR had been present in Rwanda prior to and during the genocide. It's size was reduced in early 1994 with the murder, by Hutu extremists, of a number of Belgian peacekeepers, which prompted the withdrawal of the remaining Belgians. UNAMIR, despite brave and dedicated efforts, was understaffed and crimped by extremely tight rules of engagement that prevented it from fighting back against the genocideal killers or intervening more directly.

Dallaire bluntly has stated that the international community lacked the will to intervene decisively in Rwanda. Although Dallaire communicated to senior UN officials the intelligence he had received from informants well ahead of time that genocide was being planned in Rwanda, institutionally speaking the United Nations remained unmoved. The execution of the actual genocide corresponded closely to what Dallaire had been told months in advance would take place. Dallaire's requests for more forces, better equipment, and a more aggressive mandate went unheeded.

Tragically, over a decade later, dithering now is occurring with regard to peacekeeping and peace-enforcement intervention to mitigate atrocity in the Darfur region of the Sudan.