One of the Genocide Counts Against Karadzic is Dismissed

The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia that is trying Radovan Karadzic today dismissed a charge of genocide. The ruling was part of the decision that Trial Chambers of the Tribunal make after the prosecution has closed its case and before the defense phase of the trial has begun. Karadzic challenged all of the counts in the indictment, but was successful on only one, concerning alleged genocide perpetrated in Bosnia during 1992. Another count charging genocide with respect to the July 1995 Srebrenica massacre remains, and Karadzic must now produce evidence in reply.

For many years, these rulings have been delivered orally. In a few weeks, the transcript of the decision will be available on the website of the Tribunal. For the time being, all that we have is the press release issued a few hours ago. Here is what it says:

Count 1 of the Indictment charges genocide in relation to the crimes alleged to have been committed between 31 March and 31 December 1992 against the Bosnian Muslims and Bosnian Croats in some municipalities in BiH. Having reviewed the totality of the evidence with respect to the killing of, serious bodily or mental harm to, the forcible displacement of, and conditions of life inflicted on Bosnian Muslims and/or Bosnian Croats in the Municipalities, the Chamber found that the evidence even if taken at its highest, does not reach the level from which a reasonable trier of fact could infer that genocide occurred in the Municipalities.

The Chamber noted that genocidal intent can be inferred from a number of factors and circumstances, including the general context of the case, the means available to the perpetrator, the surrounding circumstances, the perpetration of other culpable acts systematically directed against the same group, the numerical scale of atrocities committed, the repetition of destructive and discriminatory acts, the derogatory language targeting the protected group, or the existence of a plan or policy to commit the underlying offence.  The Chamber noted that although it has heard evidence of culpable acts systematically directed against Bosnian Muslims and/or Bosnian Croats in the Municipalities, and of the repetition of discriminatory acts and derogatory language, the nature, scale, and context of these culpable acts do not reach the level from which a reasonable trier of fact could infer that they were committed with genocidal intent.

The Chamber found that whilst the evidence it had heard indicates that the circumstances in which the Bosnian Muslims and/or Bosnian Croats in the Municipalities were forcibly transferred or displaced from their homes were attended by conditions of great hardship and suffering, and that some of those displaced may have suffered serious bodily or mental harm during this process, this evidence does not rise to the level which could sustain a conclusion that the serious bodily or mental harm suffered by those forcibly transferred in the Municipalities was attended by such circumstances as to lead to the death of the whole or part of the displaced population for the purposes of the actus reus for genocide.

More than once, extremists have labelled me a ‘denier’ because I have challenged the use of the label genocide for the conflict in Bosnia and Herzegovina. But today’s decision is quite consistent with earlier decisions of the Tribunal and with the 2007 judgment of the International Court of Justice. The Bosnian war was characterized by war crimes and crimes against humanity. The waves of ethnic cleansing constituted persecution rather than physical extermination of the groups that were targeted.

The one exception, according to the case law, is the 1995 Srebrenica massacre. To my mind, the approach taken by judges at the Tribunal and the International Court of Justice is somewhat incoherent, in that they have generally rejected the genocide qualification for the conflict, yet applied it to one terrible event during the war that was of short duration and isolated in a geographic sense. That approach is now well-established, whatever one thinks about the inherent inconsistency of it. Karadzic will have a hard time beating the charge of genocide with respect to the Srebrenica massacre.

Iran Truth Commission Sits in London

This week in London a Truth Commission on the treatment of political prisoners in Iran during the 1980s is sitting at Amnesty International UK’s headquarters. The Commissioners consist of several distinguished legal academics, including Prof. Maurice Copithorne (former Special Rapporteur on Iran), Prof. Eric David (member of the International Humanitarian Fact-Finding Commission), Prof. Daniel Turp, Louise Asmal, Anne Burley and myself.

We’ve been hearing testimony from victims of the violations as well as from family members who had relatives that were murdered in the torture chambers of the Iranian prisons, hanged or executed by firing squad.

As a general rule, the victims were secular leftists associated with a range of political organisations. Some were also associated with Kurdish nationalist movements. The accounts are appalling, for example, of sympathizers with political groups being rounded up and questioned about their religion views. If the answer was not to the satisfaction of their fundamentalist interrogators, they would be summarily executed. Torture was routinely practised using a variety of horrific techniques.

Those testifying before the Commission have travelled from around the world in order to record their accounts. This is a phenomenon that I observed in Sierra Leone a decade ago, when I sat as a member of that country’s Truth and Reconciliation Commission. For many victims, a measure of justice is delivered by public acknowledgement that violations took place. Even if this week’s Truth Commission does little else, it will provide these victims with an appropriate forum.

The hearings are very well attended. Often I see people sobbing or wiping their eyes as the testimony is delivered. The witnesses themselves conduct themselves with great dignity and determination, although it is clear that there is also much anguish involved in delivering their accounts. One witness told us that he had never before spoken of the events, which took place twenty-five years ago.

At the end of the week, we will begin drafting a report which will be used for a second stage in this process. A Tribunal is to be established that will make legal determinations based on the facts that the Truth Commission confirms.

Dr Mario Silva

In Galway last week, Dr Mario Silva successfully defended his doctoral thesis entitled Failed and Failing States: Causes and Conditions.

Annyssa Bellal, Mario Silva, Payam Akhavan (by videolink) and myself.

The external examiner was Professor Payam Akhavan of McGill University and the internal examiner was Dr Annyssa Bellal.

Mario Silva has had a distinguished career in public life in Canada that includes three terms in the House of Commons. He is currently the Canadian representative on the Task Force for International Co-operation on Holocaust Education, Remembrance and Research, and will assume its chairmanship in 2013.

The oral examination took place on his birthday. Congratulations, Mario, on both counts.

Prosecutor’s Behaviour Reflects Poorly on the Court, Appeals Chamber Says

Luis Moreno-Ocampo has more than once been criticized on this blog for his predilection to make statements that seem inappropriate for someone in his position as Prosecutor of the International Criminal Court. He stepped down a few days ago, replaced by Fatou Bensouda who began her nine-year term as the Court’s second Prosecutor. As a parting salute, only a few days before Moreno-Ocampo’s departure the Appeals Chamber issued a decision faulting him for statements in an interview in the magazine Vanity Fair that he conducted with British barrister Philippe Sands.

Amongst other things, the decision contains an interesting discussion of the scope of the presumption of innocence.

According to the Appeals Chamber:

31. … the Prosecutor did not exercise sufficient caution, either in the manner in which the interview was conducted or in the content of his statements. The Prosecutor discussed the case in depth and specific evidence against Mr Gaddafi. For nearly three hours, the Prosecutor and Mr Sands reviewed and analysed a 38 minute speech of Mr Gaddafi, with the Prosecutor frequently commenting on the veracity of Mr Gaddafi's statements or on the evidence against him. The Appeals Chamber considers that this detailed discussion of evidence was inappropriate in the context of a media interview. The in-depth discussion of evidence should generally be left to the courtroom. In relation to the content of the Prosecutor's statements, the Appeals Chamber notes that, on several occasions, the Prosecutor stated, as fact, material elements of the allegations against Mr Gaddafi or Mr Al-Senussi, saying, for example, "There was no battle. It was people going to a funeral. That's a crime against humanity". On other occasions, the Prosecutor passed judgment on the credibility of Mr Gaddafi's statements, stating, point blank, "He's lying". The Appeals Chamber finds that the Prosecutor's statements on these sub judice matters were inappropriate in that they gave the impression that factual issues yet to be determined by the judges had been determined or could not be contested.?

32. The Appeals Chamber is also concemed with the way in which the Prosecutor's statements and the interview are recounted in the Vanity Fair Interview. There is no indication that the Prosecutor clarified that the case was at an early stage or that it would be up to the Pre-Trial Chamber to decide whether to confirm charges and, if charges were confirmed, for the Trial Chamber to decide on Mr Gaddafi's criminal responsibility. To the contrary, the Vanity Fair Interview says that it is the Prosecutor "who may decide [Mr Gaddafi's] fate". While the Prosecutor did not publish the Vanity Fair Interview himself, the Appeals Chamber considers that it appears that the Prosecutor failed to exercise due caution in how his interview was reported.

33. For the aforementioned reasons, the Appeals Chamber finds that the Prosecutor's behaviour was clearly inappropriate in light of the presumption of innocence. Such behaviour not only reflects poorly on the Prosecutor but also, given that the Prosecutor is an elected official of the Court and that his statements are often imputed to the Court as whole, may lead observers to question the integrity of the Court as a whole.

The full decision is available here.

Thanks to Joe Powderly.

Eleanor Roosevelt and the new French 'first lady'

The recently-published biography, in French, of Eleanor Roosevelt (Claude-Catherine Kiejman, Eleanor Roosevelt,First Lady et Rebelle, Éditions Tallendier), is stirring much interest in France because the new President’s partner is herself a career journalist. Some have suggested that she retire temporarily because of the possibility of ‘conflict of interest’.

Valérie Trierweiler has herself pointed to Eleanor Roosevelt as an example of a ‘first lady’ who maintains her own public career as a writer. For many years, Eleanor Roosevelt wrote an almost daily column, called My Day. It was a kind of diary that described her most fascinating life. It is all available on line.

I’ve recently pored over the entries for 1946, 1947 and 1948 as part of my research on the drafting of the Universal Declaration of Human Rights. Here is the entry for 11 May 1946, when Eleanor Roosevelt and a handful of pioneers meeting as the ‘Nuclear Commission on Human Rights’ began the process of drafting the Declaration:

NEW YORK, Friday—It seems to me that perhaps I ought to catch up a little on my usual diary! Last Saturday, I had the great pleasure of having Miss Gabriela Mistral, the well-known Chilean poetess, and Mr. and Mrs. Andrei Gromyko drive up to Hyde Park to lunch with me.

I had met all of them before but I had had merely a casual introduction to Miss Mistral. As I have great admiration for this winner of the 1945 Nobel Prize for Literature, I was delighted to have a chance to really talk to her.

She is one of Chile's permanent consuls in San Diego, but her interests are far from being political. As she is a humanitarian, she wishes to see changed anything which is unjust either for men or women. But her real interest is in literature and the arts, and not in whether a vote will be needed in order to obtain some of the things people are entitled to. She had a most interesting face, and I hope the day will come when I will have the opportunity to talk with her in leisurely fashion about the many things in which we both are interested.

After Miss Mistral had gone back to New York City to fill a radio engagement, I drove Mr. and Mrs. Gromyko around to see my husband's hilltop cottage, his trees, and finally the library and the big house. Mr. Gromyko was long-suffering and endured having Fala practically sit in his lap during most of the time we were driving!

* * *

On Sunday, the members of the United Nations Human Rights Commission and the members of the Subcommission on the Status of Women all came up for a picnic lunch before visiting the big house and library. They got started from New York City rather late and, I think, had the usual difficulty finding exactly where they were supposed to arrive, so lunch was a bit late. But I enjoyed having them and hoped they did not find my hospitality too informal.

Monday saw us all back at work in New York but, that afternoon, a case of shingles which I had been fighting for over a week got a little the better of me. I left Prof. Rene Cassin to preside at the afternoon session of the Human Rights Commission. And all day Tuesday, I deserted the Subcommission on the Status of Women. But by Wednesday, I was able to start out again at 9:30, stay at Hunter College all day, and even keep my speaking engagement for the evening.

The subcommission is having a rather hard time finishing its report on schedule, but they are due to hand it to the Human Rights Commission on Monday so that we may go over it on Tuesday. Our own work is progressing fairly well. Today we will take up the consideration of what our recommendations should be on freedom of information. Certainly freedom of information, whether it means freedom of the press or of any other avenue of information, is one of the very important factors in the future peace of the world.

Last night, I spoke for a few minutes for the Jewish Welfare Fund, and today I shall speak for a very brief time at the opening of the new Medical Rehabilitation Clinic which the Veterans Administration has established here in New York City.

Mary Ann Glendon, in her biography of Eleanor Roosevelt, reports on a session of the nuclear Commission on Human Rights where René Cassin spoke for fifteen or twenty minutes without a pause for translation. Apparently “the interpreter broke down in tears and fled the room, leaving Mrs. Roosevelt, who fortunately was fluent in French, to summarize his remarks as best she could.” (Mary Ann Glendon, A World Made New, Eleanor Roosevelt and the Universal Declaration of Human Rights, New York: Random House, 2001, p. 31.)

Two years later, Eleanor Roosevelt spent the autumn in Paris negotiating the final text of the Declaration.  Together with Cassin, she visited the Sorbonne and wrote in her column of 1 October 1948:

PARIS, Thursday—I must own up to the fact that speaking at the Sorbonne seemed to me altogether too great an honor for a woman who never even had earned a degree after four years' work in college.

I was nervous and apprehensive, but there is something in the atmosphere of an old building like that and its beautiful hall that has an invigorating effect on speakers. Of course, the French language lends itself to oratory, and long before I spoke I was lost in the admiration of the way this language provides the words to say things that one would find it difficult to say in almost any other language.

The president of the university and Professor Rene Cassin spoke before I did. And when they speak of the Sorbonne one can tell by the feeling and emotion they put into their words that they are not merely talking of an institution of learning. This is a building they love, in which traditions have been built and which mean a great deal in the intellectual life of the French people.

Our students at home and our universities who have sent help to the Sorbonne and to the students here would be gratified by the remarks made by the president of the university in his speech. He told how much it has meant to them to receive tons of dried milk, for example, just before examinations so that they could give the students more nourishment at that particular time. He emphasized his gratitude not just for the material things, much as they have needed them, but for the spirit of generosity and affection which has come to them here from the institutions of learning in their sister republic of the United States.

The Sorbonne president also made mention of Benjamin Franklin and how he first came to speak for the United States in this capital city of Paris. And this reminded me of the fact that John Golden, who was here for a few days, made me walk to the end of the block of buildings in which our hotel stands to show me a bronze table that commemorates the fact that in this building Benjamin Franklin and other American statesmen signed the treaty that brought us help from France in the days when we needed it more than France needs our help today.

Our two republics have a long history of friendship and it is good now, when they need a lift to their spirits, that we are able to help them through these arduous years. I was only too glad to be able to thank them not only for what they did for us years ago, but for what they have done in the fields of literature and the fine arts for us and for the world over in all the years of their history.

Sierra Leone Truth and Reconciliation Report

The multi-volume report of the Sierra Leone Truth and Reconciliation Commission is now available on line (after a few years when it was difficult to obtain). Click here.
Thanks to Howard Varney.