War Crimes Prosecution Watch

Extraordinary Chambers in the Courts of Cambodia (ECCC)

Official Website of the Extraordinary Chambers
Official Website of the Khmer Rouge Trial Task Force
Official Website of the United Nations Assistance to the Khmer Rouge Trials (UNAKRT)

Detained Khmer Rouge cadres appeal detention: court
Agence France Presse
December 13, 2007

Detained Khmer Rouge ministers Ieng Sary and his wife Ieng Thirith have appealed against their detention by a UN-backed tribunal in Cambodia, court officials said Thursday.

The pair were arrested last month and charged with war crimes and crimes against humanity. Since then they have been detained by the genocide tribunal for their alleged roles in the Khmer Rouge's brutal 1975-79 rule.

Tribunal spokesman Reach Sambath said lawyers for Ieng Sary, 82, and Ieng Thirith, 75, filed their appeals with the court on Wednesday.

"The court has already received their appeals," Reach Sambath told AFP.

Ieng Sary's lawyer Ang Udom said the appeal cited his client's fear that he could die in detention. "We are worried about his health," he told AFP.

The court earlier said that both Ieng Sary and his wife were flight risks, rejecting arguments that they were too frail to leave Cambodia.

The court also said their detention was necessary to prevent any acts of revenge by victims of the regime and any pressure being put on witnesses.

"What the court ruled is all wrong," Ang Udom said, insisting that Ieng Sary would not flee the country.

Ieng Thirith's lawyer Phat Pouv Seang said he submitted an appeal on the grounds that his client is "mentally ill." He declined to give more details on her health condition.

Ieng Sary and his wife have rejected the accusations against them.

Both have been widely implicated in the crimes committed by the Khmer Rouge during one of the 20th century's worst atrocities, including murder, extermination, imprisonment, enslavement and forced labour, court records said.

Up to two million people were executed, or died of starvation and overwork as the communist regime emptied Cambodia's cities, exiling millions to vast collective farms in a bid to forge an agrarian utopia.

The Khmer Rouge also abolished money, religion and schools.

Five former regime leaders have been detained so far by the tribunal. Trials are now expected to begin in mid-2008

In US, Questions Linger Over Tribunal Legitimacy
VOA Khmer
by Sok Khemara
December 18, 2007

As US officials consider funding for the cash-strapped Khmer Rouge tribunal, some observers in the US say the courts may not have done enough to guarantee a international standards. Others say US participation and funding can help the courts reach those standards. So far, there is no guarantee the US will contribute direct funding.

The US was a main supporter of early tribunal negotiations between the UN and Cambodia, in a process mediated seven years ago by US Senator John Kerry. But the US has yet to provide any direct funding to the courts, which have been up and running for more than a year.

The US has supported the tribunal through non-governmental organizations, but officials have warned that a lack of transparency and charges of corruption and politicization in the courts have precluded direct funding.

Direct funding for the courts remains a contentious issue. For legal experts, rights groups and government officials, the question is one of justice, and whether US funding can help provide it or not.

For Sophie Richardson, deputy director of the Asia program for Human Rights Watch, this should not mean "second-rate justice."

A lot of donors already feel "burned" by contributing to the tribunal, only to witness revelations of "corruption, kickbacks and political manipulation of the court," Richardson said.

For that reason, it is important the US remain outside the process, seeking other avenues for participation, such as support of the Victim's Unit, she said.

The courts had shown bias toward the ruling Cambodian People's Party, which continues to rule with "oppression and manipulation and abuses," Richardson said, "and that's not something that US taxpayers should be supporting."

However, a struggling court could benefit from US participation, said Kelly Askin, a senior legal officer for international justice at the Open Society Justice Initiative.

"It is critically important that the United States get involved with the court, fund the court, and help improve the court," she said.

"But the United States, like any country thinking about supporting the ECCC, will want to be sure the court is operating as effectively and efficiently as possible," she said, referring to the tribunal by its official name, the Extraordinary Chambers in the Courts of Cambodia. "That means fully investigating allegations of corruption and mismanagement and establishing certain financial controls to ensure funds are being well spent."

The government and the courts have denied as "groundless" allegations put forward last year by OSJI that judges were paying kickbacks to high-ranking officials in order to sit on the tribunal. A subsequent UNDP audit found mismanagement and other questionable practices within the courts, but in public documents the audit did not find evidence of kickbacks. The full audit results have not been released.

Askin said the courts have made "great progress" following the allegations, "but there are some concerns."

OSJI was encouraging donors to put benchmarks in place for funding, to ensure concerns are addressed, he said. The tribunal will cost at least $56 million, most of it coming from the UN and other donors. The government is seeking more funds, claiming the tribunal could last into 2010. So far five former Khmer Rouge leaders have been arrested and charged with atrocity crimes. The arrests led to some optimism in the court proceedings and a visit to Cambodia in December by the US ambassador at large for war crimes, Clint Williamson, who said a US funding decision should be made in January, following his tour of the courts.

Charles Twining, who was the US ambassador to Cambodia from 1991 to 1995, said Cambodia had shown a willingness to fight corruption.

Now was the time for US support and funding, he said, adding that "an imperfect tribunal is better than no tribunal."

Schanly Kuch, an analyst of Khmer Rouge issues who is based in the US state of Maryland, said in order for the US to help the tribunal, there must be "clear conditions," but the US should not support a tribunal that does not meet international standards.

Kuch's assessment echoes concerns for most parties involved in the tribunal. So far, the biggest question is one of credibility.

For Tung Yap, vice president of the Cambodian American National Council , US participation in the tribunal was crucial, because the US could demand political independence in the courts.

"The US should demand the court to function properly in order to find, to dig up the root, for people to be satisfied and find out why the Khmer Rouge committed the atrocities when they were in power in Cambodia," Yap said.

Nuon Chea Release Hearing Set for February, Lawyer Says
VOA Khmer
by Sok Khemara
December 19, 2007

The Khmer Rouge tribunal will hold a public hearing on the pre-trial release of jailed ideologue Nuon Chea in February, the defendant's lawyer said Wednesday.

The Pre-Trial Chamber of the tribunal courts have summoned Nuon Chea for a hearing Feb. 4, lawyer Son Arun told VOA Khmer.

Nuon Chea, 81, is seeking bail to be released from tribunal custody ahead of his atrocity crimes trial; he is charged with war crimes and crimes against humanity.

Hisham Mousar, who monitors the tribunal for the rights group Adhoc, said Wednesday the courts should hold a hearing as soon as possible, before investigating judges are backlogged with work from the other jailed suspects, including former foreign minister Ieng Sary and former nominal head Khieu Samphan.

Nuon Chea could face a high number of civil cases against him, Hisham Mousar said.

The first to be charged, Kaing Khek Iev, or Duch, had no civil cases lodged against him, he added.

Tribunal Could Cost $100 Million, Expert Says
VOA Khmer
by Mean Veasna
December 19, 2007

The cost of the Khmer Rouge tribunal could nearly double, up to $100 million from $56 million, a source close to the courts said Wednesday. Tribunal officials have begun speaking with donor country representatives about the increased budget, said the source, who spoke on condition of anonymity.

Government officials have said in recent months the tribunal could last into 2010, creating a budget shortfall in an already threadbare process. The courts have so far been unable to establish a Victim's Unit, making it more difficult for complainants to participate in the process.

The tribunal was supposed to last three years. Judges were sworn in in July 2006, but the courts underwent a yearlong delay as Cambodian jurists and their international counterparts disagreed over rules governing the tribunal.

Observers say the tribunal will face budget shortfalls by April 2008.

Tribunal spokesman Reach Sambath declined to comment Wednesday on the projected budget increase, but he said the UN, which is shouldering much of the cost of the tribunal, and the government are studying the budget now.

The tribunal already lacks about $8 million, he said.

Hisham Mousar, a legal expert for the rights group Adhoc who monitors the tribunal, said $100 million was not unreasonable for a tribunal, but the money should be spent transparently.

KR leader gets US lawyer
Bangkok Post
December 19, 2007

Former Khmer Rouge deputy prime minister Ieng Sary has selected a highly experienced American lawyer who defended communist-era Yugoslav leaders as his foreign defence attorney, a Cambodian court said.

Michael Karnavas, a member of the Alaska Bar, is Ieng Sary's choice to work with his Cambodian co-lawyer, Ang Udom, to represent him before the Extraordinary Chambers in the Courts of Cambodia (ECCC), the court said in a statement.

Karnavas is president of the Association of Defence Counsel of the International Tribunal for the Former Yugoslavia and has spent the past seven years defending clients in that court, it said.

"Mr Karnavas has practiced as a defence lawyer since 1986. He has also taught trial advocacy skills for the past 18 years and lectured widely on international criminal law around the world," the ECCC said in a statement.

"In 1995 and 1996 he worked in Cambodia with (local legal aid organization) Cambodian Defender Project and the Cambodian Court Training Project," it added.

"Mr Karnavas' application for registration with the Bar Association of the Kingdom of Cambodia is currently being considered by the Bar Council, and so he will act as Legal Consultant in the case until the process is concluded," the statement said.

Ieng Sary was pardoned of genocide in 1996 by former king Norodom Sihanouk in exchange for defecting to the government and breaking the back of the movement, but was subsequently charged with war crimes and crimes against humanity by the ECCC - charges he denies.

Cambodian PM says ex-Khmer Rouge officials have comforts in detention
Associated Press via International Herald Tribune
December 20, 2007

A U.N.-backed tribunal is holding former Khmer Rouge head of state Khieu Samphan in a comfortable room that bears no resemblance to the notorious torture cells his regime operated, Cambodia's prime minister said Thursday.

Khieu Samphan, 76, has been detained at the tribunal in the capital Phnom Penh since his arrest Nov. 19. The genocide trials are scheduled to begin next year, and Khieu Samphan is one of five high-ranking former Khmer Rouge members detained.

"He was offered a place with good conditions but he still complains about the difficulties of staying there," Prime Minister Hun Sen said, noting the facility was nothing like the murderous Khmer Rouge's infamous torture center, Tuol Sleng.

"He ordered people jailed at Tuol Sleng for interrogation and torture, but he never discusses the difficulties of those people," Hun Sen said.

Khieu Samphan's lawyer had complained the room was too small, according to tribunal spokesman Reach Sambath.

Detention cells at the tribunal have fans, beds with mattresses, radio, television, a window and a private toilet, he said.

The long-delayed tribunal is seeking accountability for atrocities during the Khmer Rouge's 1975-79 rule, under which an estimated 1.7 million people died from starvation, disease, overwork and execution.

Khieu Samphan was arrested at a Phnom Penh hospital after undergoing treatment for a stroke. He has been charged with crimes against humanity and war crimes.

He also faces charges related to his support of the Khmer Rouge policy of committing "murder, extermination, imprisonment, persecution on political grounds and other inhumane acts."

Four other surviving Khmer Rouge officials are in custody at the tribunal, including Kaing Guek Eav — alias Duch — who ran Tuol Sleng, Ieng Sary, the Khmer Rouge's ex-foreign minister, and his wife Ieng Thirith, its social affairs minister. All three were charged with crimes against humanity; Ieng Sary was also charged with war crimes.

Former Khmer Rouge ideologist Nuon Chea is also awaiting trial for war crimes and crimes against humanity.

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Democratic Republic of the Congo (ICC)

Official Website of the International Criminal Court
ICC Public Documents - Situation in the Democratic Republic of the Congo

ICC Probe For Nkunda, DRC Militia Leader
Black Star News
by Milton Allimadi
December 18, 2007

Forces loyal to Laurent Nkunda, the militia leader and former general in Congo's army at the center of conflict in the Kivu regions of the Democratic Republic of Congo face International Criminal Court investigation on war crimes charges, The Black Star News has learned.

Additionally, the DRC’s regular army, known as the Forces Armées de la Republic Democratic du Congo (FARDC), and a rebel group, Forces Democratiques de Liberation du Rwanda (FDLR), comprising primarily Hutus that fled Rwanda after the 1994 genocide, also face similar investigation, the ICC said, today. “Supporters” and "backers" of the local militias that have wreaked havoc in DRC’s Kivu regions, where hundreds of thousands have been displaced, also face similar investigation, the Court said.

The ICC investigations will target “crimes in the Kivus such as acts of sexual violence of shocking brutality, forced displacements, or killings as allegedly committed by the various armed forces in presence in the two provinces, including by regular FARDC soldiers, by the FDLR or by Nkunda-allied forces” the Court said.

A legal advisor at the DRC’s permanent mission to the United Nations today said the DRC welcomes the ICC’s announcement and that General Nkunda should be the first to be targeted for investigation.

In two highly visible previous DRC cases, two suspects investigated by the Court on war crimes charges have already been surrendered to the ICC and face trials in the Hague, where the Court is based.

“We will open an investigation into a third case in the DRC in 2008,” the ICC’s office of the prosecutor, confirmed to The Black Star News, today. “We are in the process of selecting the case in accordance with our judicial standards.”

“We are also considering as part of this selection process other potential cases, including in relation to those backers and supporters of the local armed militia. This selection is ongoing,” the ICC prosecutor, Luis Moreno-Ocampo’s office told The Black Star. “In any event, this third investigation will not be the last investigation in the DRC and we will continue our efforts to prosecute those whom we believe bear the greatest responsibility for the gravest crimes committed in this situation.”

Fighting has recently flared up again in the Congo’s Kivu regions resulting in the displacement of tens of thousands, creating a humanitarian nightmare.

Mukongo Ngay, the legal advisor in the DRC's Permanent Mission to the United Nations, in a phone interview said in terms of priority, Nkunda should be the first to be investigated because “he’s causing problems.”

“He is the one who is troubling the region now,” Ngay said. Moreover, he added, in terms of alleged crimes by Congo’s army, the “military tribunal is trying people from the regular army that are committing rape and violence against women. We are already doing that.”

Ngay said Congo supports the ICC investigation of alleged crimes by the Hutu rebels. “Those are people who came from Rwanda and are conducting mass killings in Eastern Congo. We are asking them to go back to their country but they do not want.”

The ICC’s reference to “backers and supporters of the local armed militia,” was directed at Rwanda and other countries, Ngay said. “We know that Rwanda is supporting Nkunda,” he said.

An official at Rwanda’s embassy in Washington, D.C., denied that Rwanda provides any support to General Nkunda. He said Nkunda’s backing comes from Congolese Tutsis in the region because he protects them from “negative” elements, including the FDLR that comprises elements that participated in the 1994 Rwanda genocide.

When asked whether the ICC would also investigate foreign backers and supporters of the DRC militias, prosecutor Moreno-Ocampo’s office responded: “The Prosecutor analyzes all information available regarding allegations on crimes under the ICC jurisdiction. In the course of this analysis, we consider the entire range of criminality in the DRC and focus on the individuals bearing the greatest responsibility for the gravest crimes. We work on the basis of the evidence we have and not on any other basis. The crimes committed on the DRC territory by foreign nationals, wherever they are from, fall under the ICC jurisdiction and any such allegations are part of the analysis process.”

In the two earlier DRC cases, the ICC, which has occasionally been criticized for the slow pace of its work, issued an arrest warrant against militia leader Thomas Lubanga Dyilo, who was surrendered to the Hague-based court on March 17, 2006. A leader of a militia in Ituri, the ICC said, he was “criminally responsible for a policy of enlisting and con scri pting children under the age of 15 and using them to participate actively in hostilities.” His trial starts March 31, 2008.

In a second DRC case this past June, Germain Katanga, leader of another armed group, the Forces de résistance patriotique en Ituri, was surrendered by the DRC authorities on October 18, 2007. The ICC said evidence collected in its investigation “shows that Germain Katanga launched and led a brutal attack against the village of Bogoro, using child soldiers, killing hundreds of civilians and committing inhumane acts against others, forcing women into sexual slavery.”

The Kinshasa government of Joseph Kabila says attempts to reintegrate Nkunda’s forces into the national army have failed because Nkunda refuses to disarm; Nkunda himself in interviews with other media outlets said Kinshasa has failed to disarm the Hutu militias that could target Congolese Tutsis.

The ICC investigates individuals, including leaders of armed groups accused of war crimes.

Despite the ouster of long time dictator, Mobutu Sese Seko in 1997, the Congo has not enjoyed peace or stability. Widespread massacres, arising from intervention of neighboring countries seeking to steal Congo's riches, have resulted in deaths estimated to range anywhere from four to seven million.

In 2005, the International Court of Justice (ICJ) found Uganda, which had occupied Eastern Congo, liable for massacres, rapes, tortures and wide spread looting of resources. Congo has been waiting for its $10 billion claim for compensation. "Not a dime has been paid," a DRC official said. http://www.icj-cij.org/docket/files/116/10455.pdf

The ICC is also investigating individuals with Uganda-supported militias on war crimes committed during Uganda's occupation.

Victim Participation in ICC Cases Jeopardised
Institute for War & Peace Reporting
by Katy Glassborow
December 20, 2007

Court’s limited provision of legal aid may prove to be a major obstacle to victim involvement in proceedings.

Lawyers say that victims applying to participate in International Criminal Court, ICC, cases are not receiving the legal support they need to complete their applications.

They say that victims should be given legal aid to help with the long, complicated application process, while the court argues that it lacks resources to give such assistance to large numbers of applicants.

According to the court’s proposed budget for 2008, 735,000 euro will be set aside to pay for legal aid for victims. However, only those who have been recognised by the court and approved for participation are eligible.

For the first time in international law, people affected by war crimes and crimes against humanity can apply to participate in investigations and cases at the ICC, after its founding members decided it was important to make justice relevant to victims living thousands of kilometres away from the Hague-based court.

To qualify to participate, victims must submit a detailed application form, outlining their eligibility and proving that they have been directly affected by specific crimes under investigation. The prosecution and defence are then allowed to comment on each application through legal submissions.

It can take years for judges to make a decision over an individual’s eligibility to participate, and during this time, victims and their lawyers have the right to supplement their applications.

Victims are given no financial assistance by the court until it grants them participant status, so those who cannot afford a lawyer have no-one to represent them or guide them through this complex process.

Approximately 500 victims have applied to participate in proceedings at the court and most are still waiting to find out if they will be accepted.

On December 6, after three years of legal wrangling, 11 victims of the Darfur conflict were recognised by the ICC as eligible to take part in proceedings. However, another ten victims were turned down, some because their applications were deemed “incomplete” by the judge.

Other than this, the ICC has also granted participation rights to just seven victims from northern Uganda and ten from the Democratic Republic of Congo, DRC.

United States lawyer Raymond Brown said that while a high level of legal expertise is needed to successfully complete a victim’s application to be granted participant status, the court provides no resources to support applicants or the lawyers representing them.

Brown and fellow lawyer Wanda Akin have been working free of charge to help Darfuris fill in application forms and deal with the extensive legalities needed to support applications.

“The application process is never complete. We continued to supplement applications as we learned of new evidence, received comments and requests from the [ICC] Registry, and saw the court's standards evolve,” said Akin.

On reading judicial decisions from other investigations and cases at the ICC, Akin and Brown calculate how the evolving jurisprudence impacts their clients, and modify the applications accordingly.

The lawyers say victims are unable to overcome language barriers and understand different legal cultures sufficiently well to do this on their own, and need the help of a lawyer with expert knowledge of war crimes and crimes against humanity.

“There is an enormous amount of high-level lawyering that goes into filling out applications, and no lay person is capable of doing it,” said Brown.

He points out that in Darfur these difficulties are compounded by the tense security situation.

Although in other countries, such as Uganda and DRC, victims are given help with application forms from NGOs, including Avocats Sans Frontieres, ASF, and La Federation Internationale des Droits de l'Homme, FIDH, the situation in Darfur is very different.

“The long-running DRC conflict has divided but not destroyed civil society, but in Darfur there is total destruction of communities,” said Brown.

“Even if there was a thriving civil society beforehand, it has been scattered throughout the diaspora or driven into camps - which themselves are subject to threats - so how could you expect NGOs to be on the ground, able to help?”

Akin and Brown say that the fiscal and logistical requirements needed to ensure victim participation are being ignored by the court.

“The court seems to feel that NGO partners of the court should be picking up the ball, but aside from a handful which are fully familiar with the process, most NGOs could not wade through all the legal requirements,” Akin told IWPR.

In order to be considered complete, an application must have the identity of the applicant, the date and location of the crime and description of the harm suffered as a result, along with proof of identity, and a signature or thumb-print of the applicant.

However, Brown and Akin say that many Darfuri victims lack the necessary documents, after having been driven from their homes, stripped of property, possessions and the support of their own government, and forced to travel thousands of kilometres to a place of refuge.

Brown said legal aid should be provided to victims - many of whom have been left with nothing.

“We are talking about persons who have been denuded of all kind of social structural support. If we want them to participate in a complicated court process, they must be funded. Justice on the cheap is never justice,” he said.

Mariana Goetz from the human rights organisation REDRESS agrees that victims need help from lawyers to apply successfully to participate in proceedings.

“We’ve seen so many applications from people who haven’t understood the questions in the way a lawyer would. Children who were recruited by militias describe the crime they suffered as abduction, which is not a prosecutable crime – the crime is recruiting or conscripting children under 15 to fight in hostilities,” said Goetz

“Providing legal aid from the start means that ICC would receive fewer incomplete applications - which cause delays - because lawyers would help victims understand the forms.”

Martine Schotsmans from Advocats Sans Frontiers, ASF, agrees that without legal assistance, victims are submitting applications without the necessary information or accompanying documentation.

“The court does outreach to [inform] victims [of] their right to participate, but local NGOs have to help fill in forms,” she said, pointing out, however, that sometimes they may not have the necessary expertise to help.

According to Schotsmans, the promise of participation without the practical support necessary to complete applications is giving victims false hope and causing them immense frustration.

“They file their application for participation, and if their application is rejected because it is incomplete they will get very frustrated. This is why there needs to be assistance at this stage,” she said.

She also stressed the security concerns facing victims in Darfur are an obstacle to their participation.

“If you want to grant [victims] the right to participate, they need to be provided with protection and legal assistance so they do not take unnecessary risks or expose themselves without having any chance to be accepted by the court,” she said.

The ICC has set up two offices in order to support victims and the lawyers representing them - the Victim Participation of Reparation Section, VPRS, and the Office of Public Counsel for Victims, OPCV.

According to the ICC’s Fiona McKay, the OPCV was established partly to ensure victim participants have sufficient legal assistance. Pre-trial judges decided that the OPCV could be automatically appointed to give some assistance to applicants until their status is determined, she said.

However, she explained that if the court were to cover legal aid for every applicant, it could become very expensive.

“We do not have these resources, but are very well aware of the problem, and are trying to find solutions,” she said.

Luc Wallayn, the lawyer representing victims in the trial of Congolese militia leader Thomas Lubanga, said while the OPCV is useful for assisting with legal work, such as drafting submissions, “the work of representing a client you have to do yourself, or with the help of NGOs who are in contact with clients”.

NGOs are also frustrated by the amount of assistance victims are provided.

Goetz said that while the ICC outreach department and the VPRS hold one-day trainings with local NGOs and community leaders on what victim participation means, it does not directly help with filling out application forms in a bid to stay neutral.

McKay told IWPR that one of the reasons the VPRS does not assist victims directly is because it is more effective to work through local intermediaries who know the victims and have their trust.

“We try to interpret our mandate in the best interest of victims, and given all the constraints, we try to develop strategies that most effectively help victims,” she said.

However, many NGOs remain adamant that money should be provided to fund independent legal counsel for victims throughout their dealings with the ICC.

According to Karine Bonneau from FIDH, the Assembly of State Parties, ASP - the countries which support the ICC - were set to review the court’s legal aid scheme at a meeting in New York this week, but instead chose to discuss other matters.

“FIDH is disappointed because legal aid for victims was not referred to at the ASP discussion,” said Bonneau.

“We feel legal aid should be provided from the very beginning of the application stage, as it is impossible for victims to apply and defend their application if they have no legal representative.”

Katy Glassborow is an IWPR international justice reporter in The Hague. With additional research by Marije Van Der Werff in The Hague.

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Darfur, Sudan (ICC)

Official Website of the International Criminal Court
ICC Public Documents - Situation in Darfur, Sudan

China and Qatar block Security Council statement on Darfur crimes
Sudan Tribune
December 10, 2007

(UNITED NATIONS) — The UN Security Council (UNSC) failed to agree on a presidential statement supporting the arrest of Darfur war crime suspect and their extradition to the International Criminal Court (ICC).

Italy’s UN envoy Marcello Spatafora, who is also the UNSC president for December, said that the council members felt a statement was “not needed” since the briefing by the ICC prosecutor Luis Moreno-Ocampo was “loud and clear”.

Spatafora also noted that the UNSC members have already said what they feel about the matter during the briefing by Ocampo last Thursday.

Ocampo formally told the UNSC that Khartoum “has not complied with resolution 1593. The government of Sudan is not cooperating with my office or the court”.

The UNSC issued resolution 1593 under chapter VII in March 2005 referring the situation in Darfur to the ICC.

After 18 months of investigation Ocampo charged Ahmed Haroun, state minister for humanitarian affairs, and militia commander Ali Kushayb with crimes including murder, torture, persecution and intentionally attacking civilians.

The judges of the ICC approved Ocampo’s request last May and issued their first arrest warrants for Haroun and Kushayb accused of war crimes in Darfur. Sudan has refused to hand over the suspects to the ICC.

British Ambassador John Sawers told reporters after the briefing that the UNSC is working on a presidential statement that would express concern over the failure to arrest the suspects. He said that he hoped that the statement can be adopted this week.

The Inner City press website quoting unidentified UNSC envoy as saying that China was trying to water down the statement “so much that their might be no statement at all”.

China has abstained from voting on resolution 1593 causing anger among members of Sudanese government at the time, including 2nd Vice president Ali Osman Taha, who were expecting a veto from their close ally.

Sudan’s UN ambassador Abdel-Mahmood Mohamad also told Inner City press website that Qatar and South Africa opposed the statement. However he noted that the latter was forced to take different position since they are state parties of the ICC.

Sudan has not ratified the Rome Statue, but the UN Security Council triggered the provisions under the Statue that enables it to refer situations in non-State parties to the world court if it deems that it is a threat to international peace and security.

Forget trying to talk to Khartoum
The Times (London)
by Nick Donovan
December 11, 2007

In the post-teddy bear era there is a new way to try and make progress in the Darfur crisis

Gillian Gibbons, the “teddy bear teacher”, has given us a primary school lesson on the politics of Sudan. The story went something like this: “Mad mullahs” jail innocent teacher. British Muslim peers ride to the rescue. The President issues a pardon. Our girl is rescued and everyone lives happily ever after.

Two days after the release of Ms Gibbons, Luis Moreno-Ocampo, the Chief Prosecutor of the International Criminal Court, delivered a degree-level lecture on the criminal nature of the Sudanese Government to the UN Security Council. With a professorial air and staccato-speaking style he laid out the charges against Sudan, one after the other, each one outrageous to anyone unfamiliar with the five-year history of the Darfur crisis.

The war criminals wanted by the ICC, such as Ahmed Haroun, the man responsible for co-ordinating the atrocities and wanted for more than 50 counts of crimes against humanity, have not been arrested. Instead he was promoted to Minister for Humanitarian Affairs, made a co-chair to a commission charged with investigating crimes in Darfur and then appointed to a committee responsible for co-operation with the UN peacekeeping force. Comparisons with Nazi Germany should be used sparingly; but his appointment is akin to proposing that Adolf Eichmann should co-ordinate the Red Cross aid efforts in postwar Europe and run the Nuremburg Tribunal in his spare time.

Mr Moreno-Ocampo is impatient with those who describe the situation in Darfur as the chaotic aftermath of a civil war: “Calling it chaos or sporadic violence or inter-tribal clashes is a cover up.” Instead, he described a situation where in the first phase of violence non-Arab tribes were murdered or deliberately herded into an archipelago of camps. In the second phase, these camps are surrounded, their inhabitants attacked, their food, water and security turned off and on at Haroun's whim, while their land and homes were resettled by Arab tribes from Chad and Darfur.

The ICC's new targets are those who protect Haroun: “Haroun is a key actor in the present crimes in Darfur, but he is not alone. I will investigate those who bear the greatest responsibility in present crimes, those who actively support him, those who instruct him.” This is significant, as Haroun reports to a small cabal surrounding President Omar al-Bashir. Since that clique came to power in a coup in 1989 it has become expert at preserving its power through patronage, coercion and atrocity.

They are the same men with whom the international community are seeking to make a peace deal. After indictments are issued, the international community faces the real risk of negotiating with individuals criminalised by the ICC, an alarming prospect to most diplomats, as the next two years contain the probability of both the north-south deal breaking down over aborted elections and fighting over oil fields, and slow-motion atrocities continuing in Darfur.

In their public actions, if not their private words, international diplomats tend to be idealists posing as realists. Their realpolitik is focused on pushing parties towards peace. They see the shard of idealism that the ICC prosecutor has thrust into the crisis as a threat to a peace deal.

However, current diplomatic efforts are equally idealistic. Negotiations with Khartoum represent the triumph of hope over experience. The pattern is familiar: a deal is born, and then bleeds to death by a thousand small cuts inflicted by the Khartoum regime; the international community slowly loses patience but then gives Sudan a second chance in the hope it will behave better next time. For example, the UN-African Union peacekeeping force has been delayed for months because of obstructions over such things as permission to fly at night.

The alternative is another form of realism. This is based on the insight that Khartoum is an “unstable centre” in which different elites battle for dominance. Alternative power centres also exist in the provinces - most obviously in the south, but also in Darfur and in eastern Sudan. What the Sudanese Government most fears is an alliance between the opposition elites in Khartoum and rebels from the provinces.

The new approach should be to use international pressure to exploit fissures between the existing elites in Khartoum. This worked successfully in Serbia. The indictments of Milosevic and his cronies were used by the Serbian opposition to undermine his legitimacy. While marginalising the Serb Government, the international community supported the opposition.

In Sudan this approach would take the form of an international ban on dealing with the business interests that fund the atrocities in Darfur and provide the finance for the regime's powers of patronage; asset freezes targeted against Sudanese ministers; British and US support to the ICC by handing over evidence from signal intelligence sources; even targeted sanctions against the oil sector, so long as revenues could be retained for humanitarian purposes. As alternative leaders emerge, they should be subtly rewarded by according them international respect and, on occasion, providing economic support. No one should argue that the next generation of leaders will be perfect democrats. But it is hard to imagine that they could be worse.

The ICC is an opportunity, not a threat. Future indictments provide a clear platform, based on international law, for a strategy of marginalising the current elite. The failed approach of the past five years is predicated on the idea that the ruling regime is a credible negotiating partner who can be trusted to keep its promises.

After 20 years of mass atrocity and forced famine, the only surprise is that we have given them the benefit of the doubt for so long.

Nick Donovan is Head of Campaigns, Policy and Research at the Aegis Trust

UN dissolves body charged with monitoring Darfur abuses
Sudan Tribune
December 15, 2007

(GENEVA) — The U.N. Human Rights Council on Friday dissolved a group of experts tasked with monitoring abuses in Darfur after demands from African countries to ease the political pressure on Sudan.

The unanimous decision to halt the mission of the seven rights experts comes a week after the group accused Sudan of failing to protect civilians in Darfur from rape, torture and other forms of violence.

The task of overseeing Khartoum’s progress in protecting human rights in Darfur will now fall to the U.N.’s special envoy to Sudan, Simar Samar, whose mandate was unanimously extended for a year.

Rights groups condemned the decision not to renew the group’s mandate.

"There has been an unacceptable compromise by the council on the issue of Darfur," Julie de Rivero of the New York-based Human Rights Watch told reporters.

"We feel that Sudan has been rewarded for its obstruction and its failure to implement recommendations" made by the expert group, she said.

European officials expressed satisfaction at the decision, noting Samar would be able to continue working.

One senior European diplomat, who briefed reporters on condition of anonymity, said the council would continue to engage Sudan.

But de Rivero said negotiations this week between the main blocs within the council - the European Union, African states and the Organization of the Islamic Conference - appeared to have been aimed at appeasing the government of Sudan and its allies.

More than 2.5 million people have been displaced and more than 200,000 people have died as a result of the four-year conflict between the region’s ethnic African rebels and the Arab-dominated Sudanese government and its militia allies.

In March a U.N. fact-finding mission led by U.S. Nobel laureate Jody Williams said the government of Sudanese President Omar al-Bashir had orchestrated militia attacks against civilians. The Arab- and Muslim-dominated rights council rejected the recommendations of Williams’ team, voting instead to create the expert group it has now dissolved.

The council also agreed Friday to send its U.N. special investigator for Myanmar back to the Southeast Asian country for a follow-up to his visit last month.

Paulo Sergio Pinheiro, a Brazilian professor, last week released a report on his trip in which he accused Myanmar’s military-led government of downplaying the number of people killed in the September crackdown against pro-democracy demonstrators.

Pinheiro’s report found that at least 31 people were killed - more than double the number acknowledged by authorities.

The council also extended by three years the mandate of its independent investigator on human rights in the fight against terrorism.

Martin Scheinin, a Finnish professor, has been highly critical of U.S. practices in combating terrorism, in particular the use of military commissions to try detainees at Guantanamo Bay.

A resolution to extend the mandate of the council’s expert on freedom of religion was opposed by Muslim countries but passed after a vote of 29-0 in favor, with 18 abstentions.

Muslim countries had demanded changes to the resolution to bring it in line with Islamic law, which forbids religious conversion, but were unable to muster sufficient support for their position.

Luis Moreno-Ocampo: The Global Lawman
Newsweek
by Arlene Getz and Jonathan Tepperman
December 17, 2007

Midway through his nine-year term as prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo is ebullient about the prospects—and progress—of the tribunal. As bureaucracies go, he says, the court has moved faster than expected against those accused of war crimes. In New York last week to testify to the United Nations Security Council on Sudan, Moreno-Ocampo, 55, spoke to NEWSWEEK's Arlene Getz and Jonathan Tepperman about the work of the court and its evolving relationship with the United States.

NEWSWEEK:The concept of an international court was always controversial. What's the ICC's greatest achievement so far?
Moreno-Ocampo: When I was appointed, I had six floors of empty [office] space, and some people told me that I would only be able to bring frivolous cases. Four years later, I am investigating the most serious cases in the world—in Darfur, northern Uganda, the Democratic Republic of the Congo and the Central African Republic.

Your report to the U.N. Security Council says the Sudanese government is not cooperating with your efforts to arrest two men [former minister Ahmad Harun and militia leader Ali Kushayb] accused of war crimes in Darfur. What weapons do you have to enforce your arrest warrants?
The same weapons that the court has in this country: legitimacy. People learn to respect that. People know they have to respect the law. Before our case in Darfur, people were talking about Janjaweed militia, but no one described how the system worked. We showed how Ahmad Harun coordinated all these activities. Because my role is to understand how all these crimes are committed, this information is crucial. That is some part of the impact … Also, look at northern Uganda, where the intervention of the ICC had impact [after the court issued arrest warrants for leaders of the Lord's Resistance Army in 2005]. When Sudan signed an agreement with us to execute the warrant, [LRA leader Joseph] Kony lost his safe haven in Sudan and moved to northern Congo. That produced an important change, because it meant there were no more attacks in Uganda. Thousands of children were walking into the bush each night to sleep safely. Now they are sleeping in their own houses.

Are you hoping that the U.N. troops scheduled to be deployed to Darfur next year can find and arrest Harun and Kushayb?
No, we never requested the U.N. to make arrests. We've always made it clear that the government of Sudan is responsible for arrests. They are not investigating the cases … They never recognized that a member of the government was involved. Part of my job is to tell the truth. So when [ Khartoum says] these are isolated attacks, I say no way, it is a cover-up. Darfuris are being attacked in a campaign by the people who are meant to protect them, and Harun is in the middle.

How do you feel about the U.S. decision not to become a member of the court?
I believe the U.S. has the right to decide to join the court or not to join the court.

Have the court's relations with the U.S. improved since then?
They're much firmer, because while the U.S. is not a member of the court, it is not hostile. All the main U.S. allies are inside the court: Japan, Australia, Europe—it is not the court of the enemy; it is the court supported by all the U.S. allies.

How well are you able to function without the active participation of the strongest country in the world?
We've proved we can do it. It is important to have universality. It is important that the biggest states are inside. But in the meantime the court is up and running. We are starting the first trial in a few months [of Congo militia leader Thomas Lubanga Dyilo, accused of forcing children under 15 to fight in the conflict]. This for me is the beginning of a new era in international relations, in which legitimacy and respect for the law are key.

Are you hoping that a new administration in Washington could change its mind about joining the court?
I can't say. But what I can say is that I work with Egypt, with Qatar; I brief China, Russia. You don't need to join the court to work with the court … If we fulfill our mandate, who could be against the investigation of genocide or crimes against humanity?

You've been willing to adopt a high-profile personal role, especially by agreeing to be featured as one of the main characters in the behind-the-scenes "Darfur Now" documentary. Has the publicity helped your work?
The most important part of the court is that people understand the rules. Publicity will support that, but it has to be used judiciously.

Where does the court go from here?
The ICC is not just a court; it's an institution. The law has a lot of consensus—even more than the court. It's difficult to establish a global system when there is no global government, so it's an agreement on the rules. It's a new design, it's a revolutionary design, it's a model to build a global community.

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Uganda (ICC)

Official Website of the International Criminal Court
ICC Public Documents - Situation in Uganda

Ugandan president says rebel chief not serious about peace
Agence France Presse
December 20, 2007

Ugandan President Yoweri Museveni on Thursday accused rebel supremo Joseph Kony of not taking peace talks seriously, pointing to reports that he killed the Lord's Resistance Army deputy commander. Museveni's remarks come after numerous reports have claimed that Kony killed Vincent Otti -- who was key in launching the talks in July 2005 -- for allegedly spying. Although the reports have not been independently confirmed, they have posed a threat to the fitful peace process.

"He killed Otti. Who is he? Those that he is killing are Ugandans ... (this) indicates he is not ready for peace," Museveni said in a statement released by his office.

"Although Otti had his own mistakes, he did a lot for the peace talks, like convincing Kony to talk to the United Nations envoy for peace and former president of Mozambique, Joachim Chissano," the statement reported Museveni as saying in northern Uganda.

Chissano was in the region last week in a bid to breath life into the talks that have not resumed since last May. No resumption date has been fixed but the UN expects delegates to return for face-to-face talks in the south Sudan capital Juba later this month or early next month.

The Lord's Resistance Army (LRA) has suffered setbacks in recent months with the surrender of top commanders and Otti's unknown fate, though presumed dead, dampening hopes of an end to the two-decade conflict. The International Criminal Court (ICC), which has indicted five LRA commanders including Kony and Otti, has refused to lift the indictments despite calls by northern Ugandan elders and some government officials.

Kony has vowed never to sign a final peace agreement unless the ICC indictments are lifted. The conflict has left tens of thousands of people dead as well as 1.8 million displaced, out of a total population of 2.7 million in northern Uganda, where the militia had engaged in enslaving, torturing, raping and murdering civilians.

Aid groups say the talks, though foundering, have resulted in improved security in the region, where human rights groups have accused both sides of atrocities.

The LRA, which initially claimed they were fighting for the establishment of a government based on Biblical theology, has now accepted to sit down with the government and address economic and political marginalisation

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International Criminal Tribunal for the Former Yugoslavia (ICTY)

Official Website of the ICTY

Portugal agrees to enforce sentences imposed by UN war crimes tribunal
UN News Service
December 19, 2007

Portugal today became the thirteenth European country to agree to enforce a sentence imposed by the United Nations war crimes tribunal that was set up to deal with the worst crimes committed during the Balkan wars in the 1990s.

Anyone convicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) and given a jail term can now serve that sentence in a Portuguese prison after an agreement was signed in The Hague in the Netherlands, where the ICTY is based.

Italy, Finland, Norway, Sweden, Austria, France, Spain, Germany, Denmark, the United Kingdom, Belgium and Ukraine have already entered into similar agreements with the Tribunal.

The agreement with Portugal notes that it will only enforce ICTY sentences when the length of the jail term does not exceed the highest maximum sentence for any crime under Portuguese law.

The Tribunal said in a press statement that the agreement will enter into force after it is ratified by the Portuguese Parliament.

Belgrade court acquits Orahovac KLA member
B92, Beta
December 20, 2007

BELGRADE -- Sinan Morina, charged with crimes against Serb civilians in Opteruša, Kosovo, in 1999, has been acquitted.

Presiding Judge at the Belgrade District Court Olivera Anđelković explained her ruling, saying that the Court had failed to determine Morina’s participation in the attack, deportation or imprisoning of civilians between July 17 and 21, 1998.

Neither, the Court ruled, did he set fire to or destroy property and religious buildings, which 34 other members of the Kosovo Liberation Army’s Orahovac Group have been charged with.

“The Court was able to hear 20 witness in a relatively short time, mainly locals from Opteruša and other villages. None of those witnesses mentioned Sinan Morina except Slavica Banzić, on whose testimony the charges are based,“ she said.

In Anđelković’s opinion, Banzić statement was contradictory both in terms of identifying the accused and her version of events in Opteruša in July 1998.

She said the Court had unequivocally determined that the events had taken place in the home of the Božanić family, and not in Banzić’s as the witness had claimed.

“Asked who had beaten her, she replied ’the one cited in the summons,’“ said the judge, adding that Banzić had described the culprit as large and fair-haired, even though Morina is lightly-built and dark.

Anđelković said that, as a human being, she was appalled by everything that had gone on during the trial that started on October 17.

“It’s sad, pathetic and disgraceful that such an event should be used to launch proceedings without any evidence. A man has spent a year in custody, witnesses have come to ask of the whereabouts of their dearest, when it’s not the Court’s job to do this,“ complained the judge.

The War Crimes Tribunal has released Morina from custody, where he has been since December 28, 2006.

At the beginning of the trial, Deputy Prosecutor Dragoljub Stanković had asked for Morina not to be charged with murder, as there was no proof of this.

Morina was accused of taking eight women from Opteruša to the village of Zočište, then to Samodreža, where they were imprisoned until July 21, while unidentified members of the Orahovac group assaulted eight men, before taking them to the village of Volujak, and murdering them.

Among the other victims were Božidar, Novica, Mladen and Nemanja Božanić, Spasoje and Miodrag Burdžić, Spasoje Banzić and Sreten Simić. Their bodies were found in April 2005 in a ditch in Volujak.

UN court orders house arrest for Bosnian Muslim ex-general
Focus News Agency
December 20, 2007

The Hague . Rasim Delic, a Bosnian Muslim general indicted by a UN court for war atrocities, was Wednesday ordered to be placed under house arrest for flouting conditions of his provisional release, AFP reported.

The International Criminal Tribunal for the former Yugoslavia (ICTY) asked the government of Bosnia and Hercegovina to place Rasim Delic, who is on provisional release from ICTY custody, "under house arrest at his residence with ... permanent surveillance."

It warned Delic that his provisional release could be reviewed if there was "any further infringement of the conditions."

Delic, who led Muslim forces during the Bosnian war of the early 1990s, has pleaded not guilty to charges of war crimes before the court based in The Hague.

The 58-year-old had been provisionally released to allow him to spend the Christian festive season with his family in Bosnia. He was told to shun meetings, media interviews and could only leave home for medical treatment.

But Delic met Haris Siladjic, the Muslim member of Bosnia's tripartite presidency, on December 13 to "discuss health matters and family issues," his lawyers said.

The general, whose trial began on July 9, faces charges over murders, torture and beatings carried out by the so-called El Mujahed unit of foreign Islamic fighters under his command.

The El Mujahed unit of the Bosnian army, set up by Delic in August 1993, was composed of some 1,700 soldiers including at least 500 fighters from Islamic countries. The unit had a reputation for criminal behaviour.

Blic: Mladić search moves to medical clinics
B92, FoNet
December 21, 2007

BELGRADE -- Secret service officials searched the Military Medical Academy and several clinics for Ratko Mladić, Blic writes.

According to the daily, military officials also talked to several doctors suspected of helping Mladić receive medical treatment over the last few years.

“The search at the Military Medical Academy was carried out because of suspicions that it might lead to locating Mladić. His health is poor and he has to seek medical treatment from time to time through his people, who organize specialist check-ups secretly so that he doesn’t run the risk of getting captured,” the source, claiming to be familiar with the search operations, told Blic.

According to operative information concerning Mladić from the security agencies, he has heart problems and high blood pressure. It is also presumed that he has gained ten kilos since last being seen in public.

Blic’s source said that Hague fugitive Zdravko Tolimir had been located and arrested by similar observation of medical personnel and facilities.

“He was very ill and he required daily therapy. His helpers contacted doctors and our security services followed them, which is how he was arrested,” the source claims.

He said that the same doctors who treated Tolimir were now treating Mladić.

However, President of the National Council for Hague Tribunal Cooperation Rasim Ljajić has denied the claims printed in Blic.

“The information that appeared in certain media concerning operational activities or a spectacular action at the Military Medical Academy is not accurate. Of course no institution or facility will be left unturned if information arises relating to Hague fugitives being hidden there. But, in this case, no such operation occurred,” he told B92.

Plavsic 'could be released next year'
The Local: Sweden’s News in English
December 21, 2007

Bosnian Serb Prime Minister Milorad Dodik voiced hope on Thursday that former president Biljana Plavsic will be released from a Swedish prison where she is serving a war crimes sentence.

"It is realistic to expect that Plavsic will be released from jail in Sweden next year," Dodik told journalists.

Dodik hinted that the former Bosnian Serb president could be released similarly to other convicts of the UN International Criminal Tribunal for the former Yugoslavia (ICTY).

In 2003, The Hague-based ICTY sentenced Plavsic to 11 years in jail for crimes against humanity committed during Bosnia's 1992-1995 war.

She is serving her sentence in Sweden, which in April rejected her appeal for a pardon and release.

The 77-year-old had made the request on the grounds of her advanced age, failing health and poor prison conditions that she said made her sentence "much, much longer."

The self-styled Bosnian Serb "Iron Lady" is the highest ranking official of the former Yugoslavia to have acknowledged responsibility for the atrocities committed in the Balkan wars.

Serbia probing 2 men on war-crime charges
United Press International
December 21, 2007

BELGRADE , Serbia , Dec. 21 (UPI) -- Serbian prosecutors opened an investigation regarding two Serbs suspected of committing war crimes against Bosnian Muslim civilians in 1992.

Serbian police arrested Goran Savic, 38, on charges he allegedly tortured and killed Bosnian Muslim civilians in two detention camps at the eastern Bosnian town of Zvornik in May 1992 at the start of the 1992-95 Bosnian ethnic war, Serbia's RTS radio-television said Friday.

War crimes prosecutors in Belgrade this month completed an inquiry against Sasa Djilerdzic on the same war crimes charges in Zvornik. Savic and Djilerdzic, both of the western Serbian town of Kraljevo, were former members of Serbian forces that took control of the mainly Muslim Zvornik area, on the Drina River bordering Serbia, early in 1992.

The two men are to be put on trial along with six Serbs already tried before a Belgrade court on war crime charges in the Zvornik area, RTS said.

The trial of the six former members of Serbian forces began in November 2005 and it was the first war-crime hearing that the U.N. tribunal in The Hague, in Netherlands, has handed over to the Serbian judiciary.

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The Court of Bosnia and Herzegovina, War Crimes Chamber

Official Website

Accused in the case of Mirko Pekez and Others pleaded not guilty
Court of BiH
December 11, 2007

At today’s hearing before a Preliminary Hearing Judge of Section I for War crimes of the Court of Bosnia and Herzegovina, the accused Mirko (Špiro) Pekez, Mirko (Mile) Pekez and Milorad Savić pleaded not guilty to all counts of the indictment. Mirko (Špiro) Pekez, Mirko (Mile) Pekez and Milorad Savić are charged with War Crimes against Civilians.

According to the Indictment, during the state of war in Bosnia and Herzegovina (BiH), as members of the Army of Republika Srpska and reserve police force, on 10 September 1992, the Accused gathered Bosniak civilians located in the settlement of Ljoljići-Čerkazovići, Jajce Municipality, with the intent to take them away and kill them at the location known as “Tisovac”.

The indictment alleges that the Accused, armed with automatic and semi-automatic weapons, unlawfully arrested and forcibly took Bosniak civilians from their houses and rounded them up at the location known as “Osoje”, then took all of them to the location known as “Tisovac”. Once they arrived at that location, the accused, allegedly, ordered them to line up next to the edge of an abyss. When they did so, the Accused opened fire on them, killing 23 persons and wounding 4.

Sipic: Court Rejects Plea Agreement
BIRN Justice Report
December 17, 2007

An agreement reached by the state Prosecution and indictee Idhan Sipic has been thrown out by judges.

The Court of BiH has rejected the guilt admission agreement between the state Prosecution and Idhan Sipic, who is charged with war crimes against civilians committed in Kljuc municipality, because the indictee does not fully agree with the "factual description" of the crimes charged upon him. "I plead guilty to this crime, but I do not agree with the way the crime is described," said Sipic, explaining his disagreement with the statement given by Samir Jusic, alleged eye-witness of the crime, who said that Sipic cut the victim into pieces. The indictment charges Sipic, former member of the Fifth Corps with the Army of BiH, with having killed one woman, in Korjenovo Brdo village, Kljuc municipality, in mid September 1995, and then of having "cut her body and threw one piece after the other into a well". "I did not cut her up. I threw her into the well in one piece," said Sipic. After he surrendered and admitted guilt, Sipic reached a guilt admission agreement with the Prosecution on November 23. The agreement stipulated that he could be sentenced to a sentence of between six and ten years' imprisonment. However, the indictee told the Trial Chamber at the hearing that he had signed the agreement before reading the indictment.

Due to the indictee's resistance, the Court did not accept the guilt admission agreement. Judge Minka Kreho asked the indictee to enter a plea of guilty or not guilty. Sipic pleaded guilty, and he repeated it several times. He also said he did not want to be tried, but he wanted "all this to be solved as soon as possible". However, the chamber has "entered" a plea of not guilty on his behalf. "You can make further agreements with the Prosecution. In the meantime, we shall plan for the commencement of the trial," said Minka Kreho.

Bozic et al: Deciding Srebrenica Residents' Fate
BIRN Justice Report
December 18, 2007

Defense witness gives details on a meeting with war crimes fugitive Ratko Mladic.

Defense witness Srbislav Davidovic has confirmed that he took part in a meeting with Bosnian Serb general Ratko Mladic, which was held in the " Fontana" hotel in Bratunac on July 12, 1995.

The meeting was held to decide on the fate of several thousand persons from Srebrenica after the fall of the protected enclave.

Zdravko Bozic, Mladen Blagojevic, Zeljko Zaric and Zoran Zivanovic are charged with having participated, as members of the Military Police Squad with the VRS Bratunac Brigade, in guarding the buses used to transport Srebrenica residents from Potocari to Bratunac, where they were maltreated, tortured and murdered.

In July 1995 Davidovic was president of the Municipal Executive Board in Bratunac, and he participated in the meeting in that capacity.

"General Mladic tried to persuade the Bosniak representatives that Srebrenica residents should stay, and that they would be granted freedom of movement and life, unless they had murdered somebody. Mladic said that those whose hands were bloody, would be processed," Davidovic recalled, without mentioning that Mladic imposed certain conditions upon the Bosniaks. The Prosecution reminded him of this by showing the witness a video recording made at the meeting.

The video recording shows Mladic telling the Bosniak representatives that they could "either survive or disappear". If they wanted to survive, they "must hand over their weapons to the Republika Srpska Army" and "choose if they want to stay there or go somewhere else". Mladic said that buses would be provided for them, should they decide to leave the area.

Davidovic said that, after the meeting, he "took food and drinks" to Srebrenica residents in Potocari. He also said that, after being asked by an acquaintance and getting approval from Mladic, he "took a group of invalids to the bus" but, he "does not know who made them enter the bus".

Davidovic told the Court that he returned to his office in the municipality of Bratunac shortly after that, when he "heard vehicles" and "saw buses transporting Bosniak men from Srebrenica".

The witness said he saw six buses. A policeman was standing in front of one of the buses, and told him that all the people on board were going to be exchanged in Batkovici. After that, Davidovic went home. When he came to the municipality building the following day, i.e. on July 13, he did not see any buses in Bratunac.

During cross-examination, Prosecutor Kwai Hong Ip asked the witness if Bosnian Serb wartime leader Radovan Karadzic had asked the civilian authorities to provide food and fuel before the fall of Srebrenica.

The witness said he did not know, but that he did "helped" the Bratunac Brigade get 1,000 pieces of canned food on July 11 and 12, 1995. He stressed that the cans "were provided by the Red Cross".

The trial is due to continue on November 20.

Indictment confirmed in the Goran Bilić and Others case
Court of BiH
December 19, 2007

On 18 December 2007, preliminary hearing judge of Section II for Organized Crime, Economic Crime and Corruption of the Court of Bosnia and Herzegovina (BiH) confirmed the indictment in the Goran Bilić and Others case.

The indictment charges the accused in this case Goran Bilić, Dragan Brkić, Miroslav Ćorić, Nadžida Galešić, Srećko Glibić, Dragan Mandić, Tomislav Martinović, Josip Merdžo, Sead Šehić, Jozo Vladić and Jasminka Zlomislić with the criminal offence of Abuse of Office or Official Authority. The accused Tomislav Martinović and Srećko Glibić are charged with committing the criminal offence of Failure to Report a Criminal Offence or a Perpetrator.

The indictment, inter alia, alleges that by abusing their office or official authority and through various illegal actions, the accused caused damage to the budget of the Herzegovina-Neretva Canton (HNC) totaling KM 7,750,950. The accused purportedly caused the aforementioned damage to the HNC Budget in a way that they, inter alia, by bypassing the Law on the Government of HNC, donated vehicles to the HNC MoI and purchased vehicles for the needs of MoI, failing to observe the Decree of the Federation Government on the procedure for procurement, services and contracting. Further on, the indictment alleges that Tomislav Martinović, as the Minister of Internal Affairs of HNC, and Nadžida Galešić, as Deputy Head of the Sector for Administration, failed to initiate procedure and issue a decision on termination of employment for 171 employees who represent redundant labor in the HNC MoI.

Custody ordered for Marko Škrobić
Court of BiH
December 19, 2007

On 19 December 2007, the Court of Bosnia and Herzegovina (BiH) issued a decision ordering Marko Škrobić into one-month custody. He is suspected of the criminal offence of War Crimes against Civilians. Under this decision, custody may last until 17 January 2008.

The Prosecutor's Office alleges that, Škrobić, on 31 July 1992 as a member of the HVO, in the village of Novo Selo, Kotor Varoš Municipality, together with another four (4) armed persons, and expelled one Serb family from their house. After separating the family and escorting them in the direction of the village of Ravne, the accused allegedly, shot the member of this family in the chest causing immediate death.

Having considered the submitted evidence, the Court concluded that there was grounded suspicion that the suspect had committed the foregoing criminal offence. Furthermore, the Court ordered custody having found that there was sufficient evidence indicating that the suspect, if released, might interfere with the criminal proceedings by influencing the witnesses or possible accomplices.

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International Criminal Tribunal for Rwanda (ICTR)

Official Website of the ICTR

Rwanda: UN Appeals Court Rules Out Genocide Conspiracy in ‘Media Case’
Hirondelle News Agency
December 15, 2007

The recent decision of the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) to quash the majority of the guilty verdicts in the 'media case' involving three former top Rwandan media executives, has brought to the fore the legal issue of what is meant by direct conspiracy to commit genocide.

The three media officials are Ferdinand Nahimana, a founder of the pro-Hutu Radio Television des Mille Collines (RTLM); Jean-Bosco Barayagwiza, a director of RTLM; and Hassan Ngeze, owner and Editor-in-Chief of vernacular Kangura newspaper(which means wake it up).

Nahimana and Ngeze were sentenced by the lower court to life imprisonment,which is the highest prison term under the UN statute,and Barayagwiza was handed a 35-years jail.

The Appeals judges overturned the prison sentences and gave Nahimana 30 years sentence; Ngeze 35 years imprisonment and Barayagwiza 35 years jail after acquitting them of most charges.

For the first time, the judges, in first instance, had based the crime of conspiracy to commit genocide on the existence of an institutional coordination--dialogue had been established between RTLM, the Kangura newspaper and the pro-Hutu political party of the Coalition for the Defence of the Republic (CDR).

In their judgment of 3 December 2003, they had concluded that the defendants "had knowingly acted in concert, by using the institutions which they controlled, to promote a common goal, namely to target the Tutsi population and destroy it". They found them guilty of conspiracy "to collaborate personally" and because "' there was interaction between the entities which they controlled, namely the RTLM, Kangura and the CDR".

The Appeals Chamber, notes that if starting from the factual elements it could be concluded that there was a direct conspiracy between the appellants, even a "common goal" at the institutions with an aim of committing genocide, it assesses that it was not the only possible conclusion and thus guilt was not proved.

In the absence of direct evidence, the Appeal judges reminded, if the prosecutor wanted to establish criminal responsibility "on the basis of a unit of circumstantial elements of evidence, the conclusion should emerge from the whole of the established facts".

Components of the crime of conspiracy to commit genocide, which is one of the qualified acts of genocide according to article 2 (3) (b), were progressively defined by jurisprudences.

An Appeals Chamber decision of 7 July,2007 in the former Rwandan Transport and Communications Minister Andre Ntagerura's et al. case defined conspiracy as "a resolution to act on which at least two people agreed, in order to commit the genocide". It is the resolution to act concertedly, which can be a tacit conspiracy according to the appeal chamber, which constitutes the material element of the infraction.

Since the Georges Rutaganda (Businessman and second Vice-President of the notorious Interahamwe militia) decision of 5 May,2003 , international criminal jurisprudence excludes any form of responsibility "pursuant to the theory of guilt by association,in particular by similarity of behaviour".

Media executives Nahimana and Ngeze had based themselves, inter alia, on this theory of "conscious parallelism" to try to clear themselves.

"The fact that individuals react simultaneously and in the same manner to a common situation, by no means proves the existence of a preliminary conspiracy and of a concerted plan", put forward by their lawyers.

But the Appeal judges did not consider that the first instance chamber(lower court) declared them guilty by association or because of the similarity of their behaviour.

The moral element, clearly involved in the Alfred Musema (ex-Director of Tea factory in Gisovu) judgement of 27 January,2000 and Eliezer Niyitegeka (ex-Minister for Information)judgment of 16 May,2003 is qualified by the intention, which the individuals involved in the conspiracy, to destroy all or in part a national, ethnic, racial or religious group as such.

The moral element, which is the same one as that of the main infraction,the genocide, must exist before the commission of the acts.

In these two judgments, the first instance chamber specified that the infraction of conspiracy is punishable even if it was not followed by action. The conspiracy is a formal infraction, therefore punishable in itself, even if the main infraction, the genocide, was not committed.

The resolution to act in a concerted manner, which qualifies conspiracy to commit genocide, directly refers to the planning of the genocide. But the latter is not envisaged as such in the ICTR statute.

For the judges of international criminal law,the existence of a precise plan is not necessary (ex-Kibuye mayor Clement Kayishema and ex-businessman Obed Ruzindana case of 21 May 1999).

On the contrary, France, for example, considers that planning forms an integral part of the definition of genocide. The total or partial destruction of the protected group must be carried out "pursuant to a concerted plan" (article 211-1 of the criminal code). The existence of this concerted plan will have to be established.

Until now, 17 people have been, or are, prosecuted by the ICTR for conspiracy to commit genocide.

Eleven have been acquitted of this charge. Only two accused, Jean Kambanda, former Prime Minister during the 1994 genocide, and Niyitegeka, were convicted (three cases prosecuting conspiracy are still in progress.

ICTR Has Not Yet Informed France on a Case’s Deferral
Hirondelle News Agency
December 15, 2007

The Court of Appeal of Paris had still not officially received Wednesday the decision by the International Criminal Tribunal for Rwanda (ICTR) deferring itself to the benefit of French courts to try two alleged génocidaires, Abbot Wenceslas Munyeshyaka and former prefect Laurent Bucyibaruta, the examination of the case was deferred until 30 January.

On 21November, the ICTR dropped its jurisdiction and was deferred itself to the benefit of the French legal authorities to try the two men, who are also the subject of prosecution in France, since 1995 for the priest and 2000 for the former senior official.

However, this decision did not arrive by diplomatic way to the Court of Appeal of Paris which was to initially rule on a possible transfer of the two men to the international tribunal in Arusha. A copy of the deferral order arrived by email to the prosecutor of the Court of Appeal of Paris. The president of the investigation chamber gave the ICTR until 30 January to officially address to it the decisions concerning the two men.

If the court does not receive the original documents on this date, "it will draw all the conclusions", warned Edith Boizette.

The services of the ICTR, questioned Friday, explained why the file containing this decision had left the same day towards Dar Es Salaam and that it should thus have arrived to their recipient. Any emanating document of the ICTR is transmitted to French courts, as with other national courts, by the means of the embassy in Dar Es Salaam which submits it to the Ministry of Foreign Affairs which transmits it to the Ministry of Justice which circulates it towards the concerned chamber. For the 13 years that the ICTR has existed, this type of procedure has been grounded away little by little. On average, a decision takes between 8 to 15 days to arrive to its recipient.

Munyeshyaka and Bucyibaruta were arrested in France at the request of the ICTR which wished to see them transferred while awaiting their judgment. On 21 November, the chamber had already deferred to 12 December the examination of this request for transferring while waiting for the documents which the ICTR should have sent to it before 15 November.

In June 2006, France and the ICTR signed an agreement making it possible for the international tribunal to transfer to France certain cases to be tried there, including those concerning Munyeshyaka and Bucyibaruta.

Arrested a first time in July 2007 at the request of the ICTR, which wished to see them imprisoned until the international case was transferred to France, they were released. A second arrest warrant, this time issued in September, had led to their arrest, then to their release a few days later, by the investigation chamber of the Court of Appeal of Paris.

Rwanda: UN Prosecutor Ready to Start Six New Trials
Hirondelle News Agency
December 17, 2007

The Prosecutor of the International Criminal Tribunal for Rwanda (ICTR), Hassan Jallow, has said that he was ready to start new cases next year of six genocide accused in the event of any non-referrals to other national jurisdictions.

The six cases are: ex-Rwandan acting Interior Minister during the 1994 genocide Calixte Kalimanzira, ex-Mayor of Murambi commune Jean-Baptiste Gatete, ex-Lieutenant Colonel of Rwanda Armed Forces (FAR) Ephrem Setako, former commander of Ngoma Camp Indelphonse Hategekimana; and former businessmen Yusuf Munyakazi and Gaspard Kanyarukiga.

Mr Jallow told Hirondelle News Agency Monday that the Office of Prosecution (OTP) has already prepared details of the cases and "is ready to proceed to trials."

However, he added that four of the accused--Gatete, Hategekimana, Munyakazi and Kanyarukiga--are on the referral list for transfer to Rwanda, but was waiting for a chamber's decision. All six, he said, are currently held in the special UN Detention Facility in Arusha.

Briefing the UN Security Council a fortnight ago, Mr Jallow cautioned that for any reason, referrals of cases proved impossible, it would result in a substantial increase in the work load of trials and may affect the completion strategy.

"Whilst we are still in a position to conclude the trials of detainees whose referral is not possible, the management of the cases of fugitives whose cases are not transferred to Rwanda will pose a more difficultchallenge," he told the UN members, adding that judicial determination of pending requests, some since mid this year, for referrals to Rwanda would facilitate the search for speedy solutions.

He said:" I am merely at this stage alerting the Security Council to possible increase in the workload of this tribunal in 2008 which may impact on the timeline for completion of trials." If the workload does increase, he added, the UN Security Council would be detailed with specific recommendations for consideration.

The UN has set a deadline of December 2008 to complete all pending cases and appeals by 2010.

The Prosecutor further said that he was intending to file shortly additional requests for transfer of cases to Rwanda, the only country which has so far expressed willingness to take cases from ICTR. "I am optimistic that the judges will soon make a decision on the transfer of cases," he told Hirondelle.

With the exception of Edouard Karemera case, which groups together with two other top leaders of the then pro-Hutu MRND party, and is expected to run into 2009, other cases are expected to end by December 2008, and a number of cases will be in the judgment writing phase in 2009, according to Mr Jallow.

The Prosecutor also told Hirondelle that some progress has been made over the investigations of alleged atrocities committed by the Rwanda Patriotic Front (RPF) during the genocide. RPF has denied the allegations.

"We're hoping to conclude the matter early next year," said Mr Jallow.

He said the tribunal's tracking team was still tracing fugitives, including the most wanted Felician Kabuga, who is believed to have financed the genocide.

Businessman Kabuga is alleged to be hiding in Kenya, and Mr Jallow said efforts have been stepped up with the help of Kenyan government to track down the accused.

The UN tribunal which was set up in November 29 has already rendered judgements for 34 accused, including five acquittals. Trials are currently underway for 28 detainees.

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Special Court for Sierra Leone (SCSL) &
Liberian Truth and Reconciliation Commission

Offical Website of the Special Court for Sierra Leone
The Sierra Leone Court Monitoring Programme
Official Website of the Truth and Reconciliation Commission of Liberia

Serbian Officials to Visit Special Court
Special Court or Sierra Leone Official Website
December 7, 2007

Senior members of the Republic of Serbia judiciary will visit Freetown next week to meet their counterparts at the Special Court for Sierra Leone. During their week-long stay, they will shareexperiences with their counterparts in Freetown in dealing with the serious crimes which havefollowed years of conflict in both countries.

The nine-member Serbian delegation will include Mr. Sinisa Vazic, President of the War Crimes Chamber and President of the Belgrade District Court; Mr. Bogdan Stankovic, the Deputy Chief War Crimes Prosecutor of the Republic of Serbia; Ms. Slavica Pekovic, the Co-ordinator of the War Crimes Chamber’s Witness and Victim Support Service, and Ms. Jasna Sarcevic-Jankovic, the Outreach Co-ordinator of the War Crimes Prosecutor’s office.

Three journalists will accompany the delegation.

During the week, the delegation will meet with Judges, and with Special Court principals from the Registry, the Office of the Prosecutor and the Defence Office. They will also be briefed by senior staff members on the work of the various sections of the Special Court.

They will also meet with senior Sierra Leone Government officials.

The visiting officials will have the opportunity to take part in an Outreach in Waterloo, on the outskirts of the capital, to observe officials of the Special Court interacting with members of the local community. There will also be an Outreach held at a secondary school in Freetown.

Taylor War Crimes Trial to Resume in January
The Associated Press via Google
by Arthur Max
December 11, 2007

THE HAGUE, Netherlands (AP) — The special court trying former Liberian President Charles Taylor on war crimes charges cleared the way Tuesday for his trial to resume next month, more than six months after its chaotic adjournment.

In a hearing lasting less than 10 minutes, the prosecution and defense agreed they would be ready to hear the first evidence on Jan. 7, when the U.N.-backed court will begin a schedule of 25 1/2 hours of hearings per week.

The trial is expected to continue until mid-2009.

Taylor, the first African leader to face an international court, is charged with arming and supporting rebels who killed thousands of civilians and hacked off the limbs of thousands more during Sierra Leone's 10-year civil war, which ended in 2002. Specific charges include murder, sexual slavery and rape, terrorism, and conscripting child soldiers.
He has pleaded innocent.

Prosecutor Brenda Hollis told the court she would present a list of witnesses this week who will appear during the first two weeks of the trial and will file a motion to grant protective measures for some witnesses — the final measures before the trial can begin in earnest.

Prosecutors have said they will present witnesses from Taylor's inner circle who will testify that from his headquarters in Liberia he controlled rebel forces in neighboring Sierra Leone to exploit its timber, diamonds and other resources.

They also have proposed bringing victims mutilated by the rebels, although Taylor's defense team has argued that such testimony was irrelevant and only intended for its emotional appeal, since no one disputed that atrocities occurred during the brutal war.

Taylor boycotted the start of the trial on June 4 when the prosecution gave its opening statement. He told the judges by letter that he was poorly represented by the court-appointed attorney and was accorded inadequate funds to mount a proper defense.

After one more session boycotted by Taylor, the trial was adjourned. It reconvened only for pretrial hearings after he dropped his demand to represent himself and hired a team led by British barrister Courtney Griffiths paid by a grant to Taylor of US$100,000 per month.

The trial, at the Special Court for Sierra Leone, is being held in The Hague because of fears it could ignite violence if it were held in Freetown, Sierra Leone's capital.

Torture Trial of Charles Taylor's Son Faces Roadblocks
International Herald Tribune
by Curt Anderson
December 17, 2007

Witnesses are difficult or impossible to find, some having moved to remote African villages accessible only by muddy roads rarely patrolled by the police. Many survivors of Liberia's bloody civil war who witnessed acts of torture are reluctant to talk to anyone about what happened, let alone a defense lawyer for the notorious son of former President Charles Taylor.

Then there are the language and cultural barriers. These and other problems have forced a delay until spring in the federal trial of Taylor's son Charles McArthur Emmanuel, or Chuckie Taylor, the first person to be prosecuted under a law making it a crime for a U.S. citizen to commit torture or war crimes overseas. He is a citizen because he was born in Boston, where his mother lived.

People who have dealt with similar issues in western Africa say the difficulties are not surprising, given rampant official corruption and an almost complete lack of functional government institutions.

"It will take a generation for Sierra Leone and Liberia to recover from the horrors that Charles Taylor and his henchmen, including Chuckie, have wrought on their fellow man," said David Crane, former chief prosecutor for the United Nations Special Court for Sierra Leone and now a law professor at Syracuse University.

Emmanuel, 30, is charged in an eight-count indictment with involvement in horrific acts of torture and killings from spring 1999 to late 2002 as head of the Anti-Terrorist Unit during his father's presidency.

The indictment accuses Emmanuel of shooting three people chosen from a group at a checkpoint at a bridge in April 1999 and ordering the throat of another victim cut after the man tried to escape. The indictment says he used torture methods including burning with hot irons, scalding water and lighted cigarettes; beatings with weapons and iron bars; and stinging by ants.

Emmanuel's job as head of the paramilitary unit was to eliminate or intimidate his father's political opponents through whatever means he saw fit, U.S. prosecutors maintain.
"He had a reputation for mindless evil who enjoyed personally torturing individuals," Crane said.

Under the Constitution, defendants in criminal cases have the right to see the evidence against them, compel the testimony of favorable witnesses and confront their accusers. But his court-appointed lawyer, Miguel Caridad, said meeting those obligations had been a formidable task.

"We're going to a bridge where people's heads were cut off and put on top of the bridge and to a police station where people were tortured," Caridad said at a recent court hearing. "We need to know the names of witnesses and whether they know of any other people who might have been there."

Caridad said he had traveled twice to Liberia and neighboring African countries in attempts to locate potential witnesses, sometimes finding that they had moved hours away to rural areas reachable only by roads that were difficult to traverse. Often there is no electricity, water or police protection and only intermittent cellphone capabilities.

Caridad said he and his assistants had been forced to carry cash brought from home for basic expenses.

"It's just a very, very difficult thing to get done," Caridad said.

Because of these problems, Judge Cecilia Altonaga postponed Emmanuel's trial from January to April, with prosecutors agreeing that mounting a proper defense posed unique challenges.

"The government does not want to prevent the defense from completing a thorough and professional investigation," said a prosecutor, Karen Rochlin. "We don't want to be unreasonable."

There is a lot at stake in making sure Emmanuel is properly tried on the charges beyond his own rights as a defendant.

Emmanuel was arrested in March 2006 at Miami International Airport on charges of lying about his father's identity on a U.S. passport application, to which he pleaded guilty. Emmanuel wound up in Trinidad after his father left the Liberian presidency in 2003.

Taylor is on trial in a special UN court in The Hague, charged with arming and supporting rebels in neighboring Sierra Leone who killed tens of thousands of people, hacking the limbs off thousands more. That trial is scheduled to resume next month.

Crane said the prosecutions against Taylor and his son are important for millions of Africans who suffered during these conflicts, particularly as governments and international groups try to rebuild respect for the law in those nations.

"It sends a message to all Africans that their lives matter and that those who choose to commit acts of atrocity will be held accountable," Crane said.

The Emmanuel prosecution is also the first test of a U.S. law enacted in 1994 making it a crime for a citizen to commit torture or war crimes overseas. Altonaga rejected a defense argument that the law was unconstitutional, but Emmanuel could argue that point again on appeal if he is convicted.

Emmanuel, who is being held without bail, could be sentenced to life in prison if convicted on all charges against him.

UN Renews Liberia Arms Embargo
Business in Africa
December 20, 2007

UNITED NATIONS - The United Nations (UN) Security Council has renewed for another 12 months the arms embargo on Liberia as well as individual sanctions against some Liberian personalities deemed a threat to peace.

The moves came in Resolution 1792, adopted by all 15 members, which however welcomed the "sustained progress" made by the government of President Ellen Johnson Sirleaf since January 2006 in rebuilding the country "for the benefit of all Liberians."
But based on a report by a panel of experts on Liberia released late November, the council concluded that "insufficient progress has been made" in maintaining stability in Liberia and the sub-region.

It also determined that the situation in Liberia "continues to constitute a threat to international peace and security in the region."

The arms embargo on Liberia was first imposed by the Security Council in 1992 and tightened in March 2001 to curb arms trafficking via Liberia to rebels in neighbouring Sierra Leone.

The Council also extended for one year the travel ban imposed under a Security Council resolution on those individuals threatening the Liberian peace process, including senior officials of the ousted government of ex-leader Charles Taylor.

Taylor is being tried for war crimes by the UN-backed Special Court for Sierra Leone, which was moved from Freetown to The Hague over security concerns. The trial was postponed quickly after it opened in June.

Once one of Africa's most feared warlords, Taylor has pleaded not guilty to all 11 charges of war crimes and crimes against humanity, including murder, rape and using child soldiers during the brutal 1991-2001 civil war in Sierra Leone.

About 120,000 people were killed in the conflict, with rebels mutilating thousands more, cutting off arms, legs, ears or noses.

Taylor was also a key player in Liberia's back-to-back civil wars which spanned 14 years.

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United States

CIA Withheld al Qaeda Tapes from 9/11 Panel
Reuters
December 22, 2007

NEW YORK The Sept. 11 commission asked the CIA in 2003 and 2004 for information on the interrogation of al Qaeda suspects, only to be told the agency provided all that was requested, The New York Times reported on Saturday.

The CIA said on Dec. 6 it destroyed hundreds of hours of videotape in 2005 showing interrogations of al Qaeda suspects Abu Zubaydah and Abd al-Rahim al-Nashiri, prompting former members of the commission to review classified documents.

The taped interrogations were believed to show a simulated drowning technique known as waterboarding that rights activists have condemned as torture.

The Sept. 11 commission's chairmen, Lee Hamilton and Thomas Kean, said their reading of the review, a copy of which the newspaper obtained, convinced them the CIA made a conscious decision to impede the panel's inquiry, the Times said.

A memo prepared by Philip Zelikow, the panel's former executive director, concluded that "further investigation is needed" to determine whether the CIA's withholding of the interrogation tapes from the commission violated U.S. law, the paper reported.

The CIA said it destroyed the tapes lawfully to protect the agents involved in the interrogations, but the news prompted an outcry from rights activists and Democrats in Congress, as well as investigations by the Bush administration and Congress.

The commission investigated what went wrong before and after al Qaeda militants used hijacked commercial airliners to attack the United States on Sept. 11, 2001. The panel's report called for an overhaul of the U.S. intelligence community.

Kean, a Republican and former New Jersey governor, said the panel would give the memo to federal prosecutors and lawmakers looking into the destruction of the tapes.

A spokesman for the CIA told the Times the agency had been prepared to provide the Sept. 11 commission with the tapes but was never asked to do so.

"I don't know whether that's illegal or not, but it's certainly wrong," Kean said of the CIA's decision not to disclose the existence of the tapes. Hamilton, a Democrat and former Indiana congressman, said the agency "clearly obstructed" the commission's investigation.

NOT HOLDING BACK

Among statements that the memo suggested were misleading was a June 2004 assertion by John McLaughlin, deputy director of central intelligence, that the CIA had "taken and completed all reasonable steps necessary to find the documents in its possession, custody or control" in response to the panel's requests and "has produced or made available for review" all such documents, the Times said.

Kean and Hamilton expressed anger once it was revealed the tapes had been destroyed, the paper said.

The Times said Zelikow's report provides more evidence to bolster their views about the CIA's actions and was likely to put more pressure on the Bush administration over its handling of the matter.

McLaughlin told the Times agency officials had always been candid with the commission and that information from the CIA proved central to their work.

"We weren't playing games with them, and we weren't holding anything back," the paper quoted him as saying.

The memo draws no conclusions about whether the withholding of the tapes was unlawful but notes that federal law penalizes anyone who knowingly withholds or covers up a material fact from a federal inquiry or makes a false statement to investigators, the Times reported.

A CIA spokesman said the agency had gone to "great lengths" to meet the commission's requests and that the panel's members had been given detailed information from interrogations of detainees, the Times said.

The tapes "were not destroyed while the commission was active," the spokesman said. (Editing by John O'Callaghan)

No Immediate Ruling on Judicial Inquiry
The New York Times
December 22, 2007

WASHINGTON — A federal judge said Friday that he would not rule immediately on whether to hold a judicial inquiry into the destruction of C.I.A. videotapes that showed the harsh interrogation of two suspected operatives of Al Qaeda.

Lawyers for a dozen Yemeni prisoners being held at Guantánamo Bay, Cuba, had filed a motion seeking an inquiry that would force the government to explain why it destroyed the tapes. They did so in an effort to determine whether possibly damaging statements against their clients were made during these interrogations.

After hearing arguments, a United States district judge, Henry H. Kennedy Jr., said that he would take the matter “under advisement” and that he would rule later.

Bush administration lawyers argued that the court should await the results of a preliminary inquiry undertaken by Attorney General Michael B. Mukasey, and Judge Kennedy appeared at one point to agree.

“Why should the court not permit the Department of Justice to do just that?” Judge Kennedy asked David H. Remes, a lawyer for the detainees. For Mr. Remes, the answer was simple. “Plainly, the government wants only foxes guarding the henhouse,” he asserted in his motion. Considering the government’s behavior so far, Mr. Remes argued, the Justice Department is not entitled to a presumption that it will do the right thing.
Disclosed this month, the 2005 destruction of the videotapes has caused a furor. Critics of the administration have seized on the incident as further evidence that it may have a lot to hide in its treatment of detainees.

Joseph Hunt, a Justice Department lawyer, said at the hearing that the government inquiry being conducted jointly with the C.I.A’s inspector general would seek to establish whether the government violated any court order to preserve evidence. Mr. Hunt said the government would inform the judge if the investigation finds that a court order was violated. On June 10, 2005, Judge Kennedy ordered the government to safeguard certain records related to detainees held at the military detention center at Guantánamo Bay, Cuba.

Mr. Hunt said the detainees’ lawyers had failed to show that their clients were covered by that order because the two detainees depicted on the tapes, Abu Zubaydah and Abd al-Rahim al Nashiri, were not at Guantánamo in 2005 and the tapes, recorded in 2002, were not made there.

Indeed, the government lawyer said that Mr. Remes failed to show that Judge Kennedy’s order, calling for the preservation of documents concerning the “torture, treatment and abuse” of Guantánamo prisoners, addresses any incident involving his clients.

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