Landmark victory in
the fight against the impunity of international criminals! The Swiss
Confederation finally decided to provide its prosecuting authorities with the
necessary tools to investigate and prosecute persons suspected of, or
responsible for genocide, war crimes or crimes against humanity present on its
territory. The public campaign launched by the Swiss Coalition for the
International Criminal Court (CSCPI) has thus achieved its goal. From now on
the Federal Prosecutor’s Office has at its disposal a "Competence Center",staffed with
permanent experts, that will be able to track internationalcriminals more
effectively.
Showing posts with label universal jurisdiction. Show all posts
Showing posts with label universal jurisdiction. Show all posts
US court (D.D.C.) dismisses lawsuit under TVPA against Sri Lanka president based on personal immunity
TVPA Lawsuit Against
Sri Lanka President Dismissed, after Administration Submits Delayed Suggestion
of Immunity
On February 29, Judge
Kollar-Kotelly of the District Court for the District of Columbia dismissed
a lawsuit brought under the Torture Victim Protection Act against
President Rajapaksa of Sri Lanka, based on a Suggestion
of Immunity filed on January 13 by the Obama Administration.
The suit against
Rajipaksa was filed in January 2011 by families of individuals allegedly killed
during the civil war in Sri Lanka by Sri Lankan security services under his
command responsibility.
the Administration’s
delay in recognizing the immunity of a sitting head of state
The Administration
delayed filing its Suggestion of Immunity for more than nine months after
receiving a request for immunity from the Sri Lankan Government. The
Administration did not file until after Judge Kollar-Kotelly formally requested
the views of the U.S. Government.
On January 13, 2012, the
Department of Justice filed a
Suggestion of Immunity (DO- not State Dept) asserting that “President
Rajapaksa, as the sitting head of a foreign state, enjoys head of state
immunity from the jurisdiction of U.S. courts in light of his current status.
President Rajapaksa is
entitled to immunity from the jurisdiction of this Court over this suit.”
The Justice Department’s filing
attached a letter from State Department Legal Adviser Harold Koh
stating that the “Department of State recognizes and allows the immunity of
President Rajapaksa as a sitting head of state from the jurisdiction of the
United States District Court in this suit.” Judge Kollar-Kotelly held
that the Suggestion of Immunity was binding on the Court.
The Administration’s
Suggestion of Immunity for Rajapaksa is consistent with longstanding State
Department practice. However, the Administration’s delay in
recognizing the immunity of a sitting head of state is unusual and may be
another indication that Obama
Administration officials want to appear to be more supportive of human rights litigation in U.S. courts against foreign
government officials.
This is the second time the Administration has delayed in asserting
immunity for a sitting head of a foreign state. Last year, in an Alien
Tort Statute case, the Administration waited for more than a year after
receiving a formal request for immunity from the Rwandan government before
filing a Suggestion of Immunity for
Rwandan President Paul Kagame.
A policy of delaying
recognition of the immunities of foreign government officials in U.S. courts is
likely to be viewed by other countries as inconsistent with international law
norms and could have adverse reciprocal implications for U.S. government
officials (including Obama Administration officials) who may be sued in foreign
courts (for example, for drone strikes).
(Disclosure: The Sri
Lankan government consulted me for advice in this matter.)
US court dismisses
lawsuit against Sri Lanka president
1 March 2012
in her ruling she said
that the dismissal was in "no way a reflection of the merits of
plaintiffs' claims or defendant's defences"
The plaintiffs
included families of students shot dead in the town of Trincomalee six years
ago, and relatives of aid workers for a French organisation killed near there
in August 2006.
No-one has been
prosecuted over the two sets of killings.
The plaintiffs say
they were killed by the security forces under Mr Rajapaksa's control but the
government has sought to implicate the Tamil Tigers.
Also taking part in
the lawsuit were relatives of a family killed as the military crushed the Tamil
Tigers in 2009.
They allege the four
people died in naval firing on displaced civilians in the government-declared
no-fire zone.
universal jurisdiction of Netherlands over genocide
Dutch genocide case
takes shape
18 November 2011 -
11:52am | By International Justice Tribune
= = = == = = =
Basebya’s trial will
be another test case for Dutch universal jurisdiction. But this second Rwanda
case in the Netherlands is likely to be the last one. .. since the European
Court of Human Rights recently ruled Sweden was allowed to extradite a
Rwandan genocide suspect to Kigali. This ruling is expected to
ultimately lead to extraditions from all European countries to Rwanda.
Dutch judges are
currently only able to hear foreign suspects over genocide committed after 2003. Mass slaughters prior to that time can
only be handled if the genocide was committed by or against Dutch citizens.
However, last week the Dutch parliament
approved an amendment which would make it possible to try foreign suspects for
genocide committed since 1966.
The expansion of the
law is the consequence of the increase in the number of Rwandan asylum
seekers who present themselves as victims of the regime responsible for the
1994 genocide. Some of them, including Yvonne Basebya and Joseph Mpambara, were
later recognised as possible perpetrators
= = = = = = = = = = ==
“Courage, Mama!” is
the cry that reverberates throughout the courtroom in The Hague. The
64-year-old woman in the dock blows kisses to her weeping daughters. “The truth
shall triumph,” vows Yvonne Basebya, suspect in the first genocide case against
a Dutch citizen. The facts of the case occurred some 5,000 kilometres away and
the legal procedure has been sluggish.
By Thijs Bouwknegt,
The Hague
It was a Rwandan
rendez-vous this week at the District Court in The Hague. Two elderly men
embraced each other: one wearing a cowboy hat, the other showing off an untamed
hairdo. Their wives are accused of committing serious crimes in Africa’s Great
Lakes region: Victoire Ingabire Umuhoza in Rwanda for supporting FDLR rebels in
Congo, and Yvonne Basebya in the Netherlands for genocide in Rwanda.
Three judges at the
court’s War Crimes Chamber ruled that Basebya (also known by her Rwandan name
Ntacyobatabara) will remain behind bars until her trial starts in April.
She is accused of crimes “of the most serious kind in Dutch law.” It would be sending
the wrong signal if she were to be allowed to spend Christmas with her family
at her Dutch home in Reuver, the judges argued. Basebya follows her sixth
pre-trial hearing through a French interpreter via her headphones.
Case “Fox”
The two prosecutors nod in agreement. They contend that granting her provisional release would disturb the ongoing investigation in Rwanda, and would “shock” the legal order. The Dutch International Crimes Unit has been working on Basebya’s case for the past four years. It has heard witnesses in Rwanda, Kenya, South Africa, Canada, Australia and the Dutch province of Limburg. The Basebya file, codenamed “Fox”, describes a bloody history: genocide, war crimes, incitement, murder and rape. The evidence: eyewitness accounts, phone tappings and files from Gacaca courts in Rwanda.
The two prosecutors nod in agreement. They contend that granting her provisional release would disturb the ongoing investigation in Rwanda, and would “shock” the legal order. The Dutch International Crimes Unit has been working on Basebya’s case for the past four years. It has heard witnesses in Rwanda, Kenya, South Africa, Canada, Australia and the Dutch province of Limburg. The Basebya file, codenamed “Fox”, describes a bloody history: genocide, war crimes, incitement, murder and rape. The evidence: eyewitness accounts, phone tappings and files from Gacaca courts in Rwanda.
A Rwandan grassroots
court sentenced Basebya to life imprisonment in absentia in 2007. She was
already living in the Netherlands then, carrying a Dutch passport. She came to
the attention of the Dutch criminal investigation department during a probe
into the activities of her husband Augustin Basebya - a former investigator at
the International Criminal Tribunal for Rwanda, who was sitting in the public
gallery on Thursday. Suspicion quickly turned away from him to Yvonne.
Since her arrest in
June 2010, Basebya has maintained her innocence. She denies that she spurred
Hutu militias in April 1994 to seek out and kill Tutsis with clubs, canes and
firearms. However, witnesses say that Basebya led gatherings of the extremist
CDR (Coalition for the Defence of the Republic) Hutu party in the Kigali suburb
of Gikondo, singing patriotic songs and dancing with murderous militias while
issuing execution orders.
Paper tiger
Her defence paints a totally different picture: married to a respectable MP – Yvonne, risking her own life, saved Tutsis during the 100-day massacre. Basebya’s lawyer Victor Koppe calls the statements of the prosecution witnesses “unsound.”
Her defence paints a totally different picture: married to a respectable MP – Yvonne, risking her own life, saved Tutsis during the 100-day massacre. Basebya’s lawyer Victor Koppe calls the statements of the prosecution witnesses “unsound.”
He told the judges
that because “nothing in Rwanda is what it seems …interpretation and the truth
are fluid,” so these statements “actually prove her innocence rather than
implicate her.”
He also warns that
statements from Rwandans cannot be compared to those from Dutch people. “If the
judges could go to Rwanda and hear the witnesses themselves, it could lead to a
fairer judgment,” he said. In two weeks, the defence team will hear the
testimony of former Hotel des Mille Collines manager Paul Rusesabagina.
The reliability of
witnesses has been a bone of contention between prosecutors and lawyers. It is
indeed difficult for the three Dutch judges to unveil the real truth. They are
barred from going to Rwanda and cannot hear nor meet with witnesses in court.
For them, the “Fox” case is a paper tiger.
Basebya’s trial will
be another test case for Dutch universal jurisdiction. But this second Rwanda
case in the Netherlands is likely to be the last one. In July The Hague Appeals
Court found Rwandan asylum seeker Joseph Mpambara guilty of war crimes in
Mugonero. But The Hague prefers to extradite genocide suspects to Rwanda. This
is now possible since the European Court of Human Rights recently ruled Sweden
was allowed to extradite a Rwandan genocide suspect to Kigali. This ruling is
expected to ultimately lead to extraditions from all European countries to
Rwanda.
Nevertheless, the
Dutch citizen Yvonne Basebya will stand trial in her new country, cheered on by
over 40 family members and friends in court. It is questionable whether
genocide victims know what is going on in the Dutch court. To the chagrin of
prosecutor Hester van Bruggen, no victims have so far turned up during the
pre-trial hearings.
Universal Jurisdiction
Yvonne Basebya came to the Netherlands in 1998 to be reunited with her family. She is also known by her Rwandan name Ntacyobatabara. She obtained Dutch nationality in 2004. Dutch judges are currently only able to hear foreign suspects over genocide committed after 2003. Mass slaughters prior to that time can only be handled if the genocide was committed by or against Dutch citizens.
Yvonne Basebya came to the Netherlands in 1998 to be reunited with her family. She is also known by her Rwandan name Ntacyobatabara. She obtained Dutch nationality in 2004. Dutch judges are currently only able to hear foreign suspects over genocide committed after 2003. Mass slaughters prior to that time can only be handled if the genocide was committed by or against Dutch citizens.
However, last week the
Dutch parliament approved an amendment which would make it possible to try
foreign suspects for genocide committed since 1966.
The expansion of the law is
the consequence of the increase in the number of Rwandan asylum seekers who
present themselves as victims of the regime responsible for the 1994 genocide.
Some of them, including Yvonne Basebya and Joseph Mpambara, were later
recognised as possible perpetrators
a former Algerian General arrested on war crimes charges under Swiss law
When
- arrested
in Geneva on Thursday morning, 20 October 2011
The
arrestee - the former
Algerian General and Minister of Defence Khaled Nezzar
Charges - war
crimes committed during the Algerian civil war, under Swiss law that authorizes
the prosecution of international humanitarian law violations, namely violations
of the Geneva Conventions and its Additional Protocols, as soon as the suspect
is on Swiss territory
Numerous
Human Rights Organisations accuse him of having ordered, authorised and incited
the military and public function agents to exercise acts of tortures, to commit
murders, extrajudicial killings, enforced disappearances and other acts constituting
grave violations of international humanitarian law.
The Swiss
law (apparently granting universal jurisdiction over IHL violations) - In the
past, a Rwandan national was sentenced to fourteen years of prison for his
participation in the genocide committed in Rwanda in 1994
=== ==== ==== === ====
The
Arab Spring arrives in Switzerland: a former Algerian General arrested on war
crimes charges
Geneva,
21 October 2011
Accused
of war crimes committed during the Algerian civil war, the former Algerian
General and Minister of Defence Khaled Nezzar was arrested in Geneva on
Thursday morning, 20 October 2011. He was interrogated by the Public Prosecutor
of the Swiss Confederation (Public Prosecutor) until 18h30 on Friday 21
October, and was later released on the basis of his promise to be present
during the subsequent procedure. Earlier in the week, the Public Prosecutor
opened an investigation following a denunciation by TRIAL, the Swiss
Association against Impunity.
Mr.
Khaled Nezzar was born on the 27th December 1937. He held various positions in
the Algerian army. Named Chief of Land Forces in 1986, he was promoted to Chief
of Staff and then Minister of Defence in 1990. In this position, he became the
man of all decisions within the government. From 1992 until 1994, he was one of
the five members of the High Council of State (HCS), the military junta of five
members that replaced the President elect. Mr. Nezzar was considered as one of
the most powerful men of the regime in the beginning of the 1990s, whilst the
“dirty war” was raging.
Numerous
Human Rights Organisations accuse him of having ordered, authorised and incited
the military and public function agents to exercise acts of tortures, to commit
murders, extrajudicial killings, enforced disappearances and other acts constituting
grave violations of international humanitarian law.
Swiss
law authorises the prosecution of international humanitarian law violations,
namely violations of the Geneva Conventions and its Additional Protocols, as
soon as the suspect is on Swiss territory. In the past, a Rwandan national was
sentenced to fourteen years of prison for his participation in the genocide
committed in Rwanda in 1994.
TRIAL,
an organisation specialised in fighting against the impunity of authors of
grave violations of human rights, welcomed Mister Nezzar’s arrest and the
charges of war crimes against him. According to its Director, Philip Grant,
“the Arab Spring has arrived in Switzerland. The demand for justice, which has
not yet found expression in Algeria, must now be realised in Switzerland.” The
organisation however regrets that Mr. Nezzar was not taken into custody, the
risk of flight being too important. “Not enough consideration has been given to
the immense suffering of thousands of Algerian victims of the security
apparatus under Mr. Nezzar’s orders”.
The
criminal proceedings will nevertheless continue in Switzerland.
Amesys, alleged to be complicit in human rights violation in Libya
Amesys,
a French subsidiary of the Bull Group
When Tripoli
was liberated, on 29 August 2011, journalists from the Wall Street Journal
entered the building where the Libyan regime monitored communications. They
found manuals written in English carrying the logo of Amesys, a French
subsidiary of the Bull Group. In 2007
Amesys entered into an agreement with the government of Libya to make
technology available for the purpose of intercepting communication, data
processing and analysis.
Paris, 19
October 2011 – Today FIDH and LDH filed a criminal complaint, together with an
application to join the proceedings as a civil party against persons unknown
before the Court in Paris concerning the responsibility of the company Amesys,
a subsidiary of Bull, in relation to acts of torture perpetrated in Libya.
This
complaint concerns the provision, since 2007, of communication surveillance
equipment to Gaddafi’s regime, intended to keep the Libyan population under
surveillance.
This
complaint, which singles out a company for being complicit in grave violations
of human rights on the basis of extraterritorial jurisdiction, is considered
within the framework of the struggle against impunity, at a time when a growing
number of companies is being denounced for having provided similar systems to
authoritarian regimes.
Bush Torture Indictment in Canada - CCR
Bush
Torture Indictment in Canada , October 14, 2011
Switzerland
On
February 7, 2011, two torture victims were to have filed criminal complaints
for torture against former president George W. Bush in Geneva, who was due to
speak at an event there on February 12th.
On the eve of the filing of the complaints, George Bush cancelled his
trip. Swiss law requires the presence of
the alleged torturer on Swiss soil before a preliminary investigation can be
open. The complaints could not be filed
after Bush cancelled, as the basis for jurisdiction no longer existed.
These
two complaints are part of a larger effort to ensure accountability for
torturers, including former U.S. officials.
So
on February 7, 2011, CCR publically released the "Preliminary Bush Torture
Indictment." This document
presents fundamental aspects of the case against George Bush for torture, and a
preliminary legal analysis of his liability for torture and a response to some
anticipated defenses. This document
will be updated as developments warrant.
The exhibit list contains references to more than 2,500 pages of
supporting material.
Canada
On
September 29, 2011, CCR and CCJI delivered a letter and Indictment to the
Minister of Justice and Attorney General of Canada, urging him to prosecute
George W. Bush for crimes of torture -- for his role in authorizing and
overseeing his administration’s well-documented torture program -- if he
travels to Canada as scheduled on October 20, 2011. Bush is scheduled to visit Surrey, British
Columbia on October 20th, as a paid speaker at the Surrey Regional Economic
Summit at the invitation of Surrey Mayor Diane Watts.
According
to the Indictment, former President Bush
bears individual and command responsibility for the acts of his subordinates,
which he ordered, authorized, condoned, or otherwise aided and abetted, as well
as for violations committed by his subordinates, which he failed to prevent or
punish. In particular, Bush is alleged
to have authorized or overseen enforced disappearance and secret detention,
extraordinary rendition, waterboarding, exposure to extreme temperatures, sleep
deprivation, punching, kicking, isolation in “coffin” cells for prolonged
periods, threats of bad treatment, solitary confinement, and forced nudity.
The
Indictment .. details the grave evidence that former President Bush sanctioned
and authorized acts of torture, which violates Canadian laws and the international
treaties that Canada has ratified. Consequently,
the Canadian government has both the jurisdiction and the obligation
to prosecute George W. Bush if he sets foot in Canadian territory.
One
hundred and forty-seven countries, including Canada and the United States, are
party to the United Nations Convention Against Torture (CAT), meaning that
those countries have committed to promptly investigate, prosecute, and punish torturers.
While the U.S. has thus far failed to
comply with its obligations under the CAT, all other signatories are similarly
obligated to prosecute or extradite for prosecution anyone present in
their territory who they reasonably believe has committed torture. If the evidence warrants, as the Bush
indictment contends it does, and if the U.S. fails to request that Bush be
extradited to face charges of torture, Canada must, under law, prosecute him
for torture.
Indictment
– Canada
Rights
groups urge Canada to arrest ex-US president Bush ahead of visit , October 14,
2011
In
November, the American Civil Liberties Union (ACLU)
[advocacy website] urged US Attorney General Eric Holder to investigate Bush
for violation of the federal statute prohibiting torture [18
USC § 2340A]. Also citing his memoir, the ACLU argued that the use of
waterboarding has historically been prosecuted as a crime in the US. The letter
also argued that failure to investigate Bush would harm the US's ability to
advocate for human rights in other countries. Bush's secretary of defense Donald Rumsfeld [JURIST news archive] has
also faced possible criminal charges in Europe, when, in 2007, a war crimes complaint was filed against him [JURIST
report] in Germany for his involvement in detainee treatment. The case was later dismissed [JURIST report].
HRW
press release , OCTOBER 12, 2011
On
September 21, 2011, Amnesty International sent a memorandum to
Canada’s minister of justice and attorney general detailing the basis for
charges against Bush. On September 29, the Canadian Centre for International
Justice (CCIJ) and the Center for Constitutional Rights (CCR) sent the minister
of justice a draft
indictment setting forth the factual and legal basis for charging
Bush with torture.
Human Rights Watch has reported on specific interrogation techniques authorized by the Bush administration, including waterboarding, confining detainees in a dark box for up to 18 hours at a time, prolonged sleep deprivation, exposure to heat or cold, pushing detainees into walls, and the use of stress positions.
Human Rights Watch has reported on specific interrogation techniques authorized by the Bush administration, including waterboarding, confining detainees in a dark box for up to 18 hours at a time, prolonged sleep deprivation, exposure to heat or cold, pushing detainees into walls, and the use of stress positions.
Even
without Bush’s presence in Canada, the Canadian government can charge Bush for
torture if a Canadian citizen is the victim. On September 26, 2002, US
authorities detained Syrian-born
Canadian national Maher Arar, while on his way home to Montreal, at
John F. Kennedy airport in New York City, and flew him to Syria, via Jordan.
Arar alleges that in Syria he was beaten in the stomach, face, and back of the
neck, whipped with a two-inch thick electric cable on the palms, hips, and lower
back, and interrogated for up to 18 hours a day. He was confined in a dark,
dank, underground, grave-like cell that was three feet wide, six feet long, and
seven feet tall for more than 10 months.
The Syrian government released Arar after nearly a year, finding he had no connection to any terrorist or criminal activity. The Canadian government, following an extensive inquiry, cleared Arar of all terror connections, offered him a formal apology, acknowledged playing a role in his rendition, and provided compensation of CA$10.5 million plus legal fees. The inquiry expressly concluded that Arar had been tortured in Syria. The Bush administration refused to assist the Canadian inquiry and disregarded Prime Minister Stephen Harper’s request that the US government acknowledge its inappropriate conduct.
The Syrian government released Arar after nearly a year, finding he had no connection to any terrorist or criminal activity. The Canadian government, following an extensive inquiry, cleared Arar of all terror connections, offered him a formal apology, acknowledged playing a role in his rendition, and provided compensation of CA$10.5 million plus legal fees. The inquiry expressly concluded that Arar had been tortured in Syria. The Bush administration refused to assist the Canadian inquiry and disregarded Prime Minister Stephen Harper’s request that the US government acknowledge its inappropriate conduct.
AI
press release , 12 October 2011
Human
rights group wants ex-president Bush arrested for human rights abuses when he
visits Surrey
Ottawa
dismisses Amnesty International 'stunt'.
OCTOBER 13, 2011
Canada
brushed off a call by Amnesty International Wednesday to arrest former U.S.
President George W. Bush for human rights abuse, saying the organization was
engaging in cheap stunts.
Immigration
Minister Jason Kenney, noted in an email that in the past, Amnesty had not
asked for Canada to bar former Cuban leader Fidel Castro, even though the
rights organization itself said he had presided over "arbitrary arrests,
detention, and criminal prosecution."
= = = = = = = = = = =
DO
immunity
rationae materiae
Pinochet
case in House of Lords
Democratic
Republic of the Congo v. Belgium (ICJ, 2000)
= = = = ==
= = = = == =
= = = = ==
= = = = == =
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