Guest Blogger: Kate Gibson

It's IntLawGrrls' great pleasure to welcome Kate Gibson (right) as a guest blogger.
Kate's the Co-Counsel of Jean-Baptiste Gatete, a defendant before the International Criminal Tribunal for Rwanda. She's also a member of the defence legal team for Radovan Karadžić, the former Bosnian Serb leader now on trial at the International Criminal Tribunal for the former Yugoslavia. She has previously worked in defence at the ICTR on the Government II case, and the Military I case, where she worked for General Gratien Kabiligi, who was acquitted of all charges in December 2008.
She was the Associate Legal Officer of Judge Mohamed Shahabuddeen, who served on the ICTY Appeals Chamber till 2009, and she also worked as a lawyer for civil parties on the Duch trial at the Extraordinary Chambers in the Courts of Cambodia in Phnom Penh.
Kate holds an LL.M. in International Law from Cambridge University, and is admitted as a solicitor of the Supreme Court of Queensland, Australia.
In her guest post below, Kate discusses the 2-week arrest and detention in Rwanda of American law professor Peter Erlinder, attorney for another accused in the ICTR's Military I case, as well as the ramifications of that detention among defence counsel at the ICTR.
Heartfelt welcome!

ICC reports Sudan's non-cooperation to Security Council

Pre-Trial Chamber I of the International Criminal Court has rendered a decision in the case of Prosecutor v. Harun and Ali Kushayb, informing the U.N. Security Council about Sudan's lack of cooperation in the proceedings.
The decision issued Tuesday was in response to the Prosecutor's April 19 request for a finding on Sudan's non-cooperation in executing warrants, issued by the Chamber 3 years earlier, for the arrest of former State Minister for the Interior Ahmad Muhammad Harun and militia leader Ali Muhammad Ali Abd-Al-Rahman, also known as Ali Kushayb. In these past 3 years, Sudan has refused to cooperate in efforts to deliver Harun, who faces 42 counts of war crimes and crimes against humanity, and militia leader Ali Kushayb, who faces 50 counts of war crimes and crimes against humanity, to the Court. Moreover, Sudanese President Omar al-Bashir, who himself is the subject of an ICC warrant for arrest (prior IntLawGrrls posts), has publicly denounced the proceedings and vowed never to turn a single Sudanese citizen over to the Court.
It is in this context that Pre-Trial Chamber I -- comprising Presiding Judge Sylvia Steiner (Brazil) (left) and Judges Sanji Mmasenono Monageng (Botswana) (below, near left) and Cuno Tarfusser (Italy) -- issued Tuesday's decision. It gave notice of Sudan's non-cooperation to the Security Council, which in Resolution 1593 (2005) had referred the situation in Sudan to the ICC.
While Sudan is not a party to the Rome Statute of the ICC, the Chamber noted that as a U.N. member state, Sudan is obligated under Article 25 of the U.N. Charter to comply with Resolution 1593 -- and that paragraph 2 of that resolution states that Sudan

shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor ....

In its order, the Chamber simply stated that its decision was to be transmitted to the Security Council so that the Council could

take any action it may deem appropriate.

While it remains to be seen how the Security Council will respond to the Chamber's decision, the Council has responded to reports of non-cooperation from international tribunals in the past. For example, in 1996, the Council condemned the Republic of Serbia's and Serbia and Montenegro's failure to execute arrest warrants against Radovan Karadžić and Ratko Mladić after receiving a report from the President of the International Criminal Tribunal for the former Yugoslavia that referred to an ICTY Trial Chamber's finding that neither State was cooperating with the execution of the warrants. In its statement, the Security Council demanded full cooperation from the Republic of Serbia and Serbia and Montenegro. In July 2008, as we then posted, Serbian authorities finally arrested Karadžić.

One can only hope that the ICC need not wait 12 years for Sudan's cooperation on the warrants for Harun and Ali-Kushayb.

On November 14

On this day in ...

... 1995, Richard Goldstone, then the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, indicted 2 Bosnian Serb leaders on charges of genocide, crimes against humanity, and war crimes stemming from the massacre of Bosnian Muslim boys and men at Srebrenica. This indictment followed another, issued 3 months earlier, which had charged the same 2 men, Bosnian Serb President Radovan Karadžić and and Gen. Ratko Mladić, with international crimes related to other aspects of the war in Bosnia. As we posted here and here, it took 13 years for the capture of Karadžić; his trial began last month despite his boycott (left) of the proceedings, which readers may follow via webcast here. Mladić remains a fugitive.

(Prior November 14 posts are here and here.)

The Doctor (Was) In

A former Bosnian Serb leader, Dr. Radovan Karadžić, today ended the boycott of his trial before the International Criminal Tribunal for the former Yugoslavia (prior posts) -- which then promptly adjourned proceedings in order to consider further the complaints by Karadžić (left) that he's not had enough time to prepare his defense. Two very different video takes of today's events are here and here.

Karadžić channels Piaf

In words that weirdly echo the signature song of the late chanteuse Édith Piaf (below), Radovan Karadžić (left) has told Reuters:

« Je ne regrette pas mon propre rôle ».

That's the French version of the article by Adam Tanner. In English, Karadžić said:

'I do not regret my own role.'

Karadžić spoke during an exclusive interview in The Hague cell where, as we've posted, he awaits trial. (photo credits here and here)
The 3d Amended Indictment, filed with the International Criminal Tribunal for the former Yugoslavia in February, alleges that Karadžić, former President of the breakaway Bosnian Serb region known as Republika Srpska, is responsible for genocide, crimes against humanity, and war crimes committed during the brutal Balkans wars of the 1990s.

Girl Soldier & 2nd Chautauqua Declaration

I post again from the 2nd Annual International Humanitarian Law Dialogs at Chautauqua, New York. The conference closed with the solemn reading by American Society of International Law Executive Director Betsy Andersen (left) of the 2nd Chautauqua Declaration, signed by the international criminal prosecutors present. The first two operative paragraphs are powerful:

That states must conform their conduct to the law, to settle disputes peaceably to refrain from aggressive acts, to honor the sanctity of the person, and to allow the peoples of the world to live free from want, fear, and to worship and express themselves without repression;
That states honor their legal commitments to uphold the directions and orders of the justice mechanisms they have created and once again, call upon all states to arrest and surrender to the appropriate court, tribunal or chamber Ratko Mladić, Felician Kabuga, Joseph Kony, Ahmad Harun, Ali Kushyab and all others not listed here and who are sought by international justice.

Missing from the list of fugitives in the 1st Chautauqua Declaration is Radovan Karadžić; let's hope for more missing names next year. The full text is posted on the website of the Robert H. Jackson Center.

The most moving event of the day was the talk by former child soldier Grace Akallo (left), one of the Ugandan schoolgirls abducted by the Lord's Resistance Army. Grace quietly recounted her story, not flinching at describing the mistreatment that caused her to become a killer to survive. With a shy smile, she told us about her college degree and infant son. Her message to us? Just as she is speaking out to educate the public and counseling other victims, we as lawyers should work to bring Joseph Kony and the LRA to justice and thereby facilitate lasting peace.

I highly recommend Girl Soldier (2007) (right), the book that Grace co-authored with Faith J.H. McDonnell.

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes)

Mugabe proved he still had his despotic chops by recently winning an election that he lost.

-- Daily Show commentator Lewis Black, on why Robert Mugabe (left) of Zimbabwe won the gold medal in Black's "Evil Dictator Awards" contest. (Latest news on Zimbabwe's election crisis here.) Sudan's Omar al-Bashir took the silver medal, and the bronze medal went to former Bosnian Serb leader Radovan Karadžić.
Video of the award "ceremony" here.

Defense counsel on "show trial" claims

First, my thanks to the IntLawGrrls for inviting me to be a guest blogger. I am glad to be a part of the blog’s ongoing discussion of timely and relevant international law topics.
As this blog and media around the world have reported, the former Bosnian Serb leader accused of genocide and crimes against humanity, Radovan Karadžić, has just been handed over to the International Tribunal for the former Yugoslavia for prosecution. He has already declared that he would like to represent himself. In doing so, he may intend to follow in the footsteps of Slobodan Milosevic and Vojislav Seselj, both of whom represented themselves and tried to turn the ICTY proceedings into a show for audiences back home. Karadžić is reportedly still considered a hero by some Serbs, with poems in his honor being recited at nationalist gatherings at Belgrade pubs. The prosecution at the ICTY is understandably concerned that, by representing himself in The Hague, Karadžić will do his best to politicize the proceedings and score points with his nationalist supporters.
Karadžić’s plan to represent himself, and the possibility that he will attempt to use the trial as a platform for political statements, feeds into a popular image of international criminal trials turned into a show by conniving defendants and their attorneys. In fact, the Milosevic and Seselj trials do not accurately represent the vast majority of international criminal trials. In most such trials, the defense does not attempt to politicize the proceedings. (credit for photo of ICTY session) Instead, they approach the process in much the same way as do defendants and their counsel in most ordinary domestic proceedings — refraining from political statements, and instead simply putting forward their best legal and factual defenses to the offenses charged. This is one of the main findings of my article on Defense Perspectives in Law and Politics in International Criminal Trials, 48 Va. J. Intl’l. L. 529 (2008).
My article addresses a larger, fundamental question about the purposes of international criminal trials:

Do international criminal trials serve primarily legal purposes, similar to the objectives of domestic trials, or do they serve primarily political purposes, such as helping communities heal and compiling an accurate record of the past?

The article examines this question through the perspectives of an overlooked, but important, participant in these trials—the defense attorney. Through personal interviews, scholarly articles, and case law, I analyze the attorneys' motivations, strategies, and tactics in representing defendants at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. In particular, I ask whether defense attorneys believe that international criminal trials serve primarily adjudicative or primarily political purposes.
The survey finds that defense attorneys believe that these trials are much farther from being constructed primarily to satisfy political purposes, and much nearer to being truly adjudicative proceedings whose crucial function is to separate the guilty from the innocent. Defense attorneys believe that a good number of their clients are innocent and that acquittals are possible. Their perceptions, I argue, are not merely inevitable products of the role they play, but are supported by an increasing number of acquittals, dismissals, and vigorous debates about liability doctrines and rules of procedure. Finally, and contrary to some perceptions, most defense attorneys do not view political statements or attacks as appropriate tactics in international criminal trials and instead focus on factual and legal challenges to the prosecution's case.
Even as international trials retain their unique political importance, the attitudes of those actually engaged in them reflect their character as primarily adjudicative proceedings. Importantly, as key players in the trials, defense attorneys not only reflect, but also influence the proceedings, shifting them toward the adjudicative model.

Really big news about global justice

The last few weeks seem to indicate that international courts are getting some teeth, or, at least, are teething ...
► First, the International Criminal Court’s Prosecutor, Luis Moreno-Ocampo, gets Belgium to arrest Jean-Pierre Bemba, the loser in the 2006 presidential election in the Democratic Republic of Congo and head of one of the more infamous militias in that country. Perhaps to avoid charges of political meddling in DRC politics, Bemba has been charged at the ICC (left) not with crimes at home, but with involvement in mass rapes in the next-door Central African Republic.
► Then the ICC Prosecutor really gets serious, issuing an indictment for the president of Sudan, Omar al-Bashir. (IntLawGrrls posts below, here, here, and here.) That should take some of the wind out of the sails of those ICC skeptics who pointedly asked why, after a nearly 3-year investigation, the ICC had managed only the indictments of a mid-level militia commander and a single Sudanese minister. They asked: Was the Prosecutor focusing just on non-state actors rather than powerful state figures? The Al-Bashir indictment is Moreno-Ocampo’s answer. But it leads to another question: Will the U.N. Security Council use the leverage Moreno-Ocampo has given it to push for real concessions from the Sudanese government, or will it squander the chance?
► Finally, Radovan Karadžić has come in from the cold; he's due to appear in court at The Hague today. (Prior IntLawGrrls post here.) The onetime self-proclaimed president of the Bosnian Serb Republic was arrested by his erstwhile Serbian ex-backers. They are now apparently more interested in securing for Serbia a place in the European Union than in thumbing their nose at the International Criminal Tribunal for the Former Yugoslavia (right).
So far, so good. But it is still true that prosecutions by international courts of high-ranking military and government officials remain few and far between.
The really interesting story is the rise in national-level prosecutions of such officials:
► In the same few weeks, Alberto Fujimori (on whose extradition IntLawGrrls posted here) continued to stand trial in Peru, with military officers confirming that the former president indeed knew of the killings carried out in the name of combating subversion. Fujimori, like Slobodan Milosevic, had delayed the proceedings due to ill-health, but trial is now scheduled to be completed by the fall.
► Then, Argentine courts convicted the Butcher of Córdoba, Benjamín Meléndez, of orchestrating killings and secret death camps during the 1976-83 dictatorship. Since the country’s Supreme Court annulled prior amnesty laws, courts have convicted a number of the top military and police officials, and even a military priest accused of abetting torture. Trials continue throughout the country.
► Next door in Chile, the head of the secret police and his henchmen were convicted of blowing up General Carlos Prats, the former army head, and his wife, in a 1974 bombing in Buenos Aires. And that’s just on one continent. (credit for Chilean Supreme Court photo below left)
Indeed, according to a soon-to-be-published book on trying heads of state, edited by Ellen Lutz and Caitlin Reiger, since 1990, no fewer than 57 heads of state from around the globe have been indicted, at a minimum, for misconduct while in office. True, about half these are corruption cases, not violations of human rights or humanitarian law. True as well, in far fewer cases do the indictments turn into trials and convictions, and fewer still result in actual prison stints. Nonetheless, there is clearly a trend, and it points to the diffuse – but key – influence of the new architecture of international justice on national judges and courts.
That’s the really big news.

News flash: Karadžić arrested

After more than a decade on the run, Radovan Karadžić has been arrested in Serbia.

Karadžić (below), the former President of Republika Srpska, the breakaway Bosnian Serb Republic, was seized Monday night in Serbia, according to Serbian President Boris Tadić, "'in an action by the Serbian security services.'" Tadić added that the longtime fugitive then was brought into a Serbian courtroom, the BBC reported:

'Karadzic was brought to the investigative judge of the War Crimes Court in Belgrade, in accordance with the law on cooperation with the International Criminal Tribunal for the former Yugoslavia.'

As posted, Richard Goldstone, then the ICTY's Chief Prosecutor, indicted Karadžić and Bosnian Serb General Ratko Mladić in 1995 on charges related to their supervisory role in atrocities committed during the Balkans War. The amended indictment, issued in 2000 and including a charge of genocide at Srebrenica, is here.

In a statement issued today, the current Chief Prosecutor, Serge Brammertz, said:

This is a very important day for the victims who have waited for this arrest for over a decade. It is also an important day for international justice because it clearly demonstrates that nobody is beyond the reach of the law and that sooner or later all fugitives will be brought to justice.

Even as Karadžić now awaits likely transfer to the ICTY, Mladić remains at large.

On November 9, ...

... 1996, newly elected Bosnian Serb President, Biljana Plavšić dismissed Gen. Ratko Mladić, whom the International Criminal Tribunal for the former Yugoslavia had indicted on charges of war crimes and crimes against humanity. She said in a televised statement "that international opposition to General Mladic had made it impossible for him to remain," the New York Times reported, adding, "The television is tightly controlled by the Bosnian Serb leader Radovan Karadzic." Today, as posted, Plavšić (left) is serving an ICTY-imposed sentence. But co-indictees Karadžić and Mladić remain at-large fugitives from that mechanism of international criminal justice.

... 1953, 2 days after King Norodom Sihanouk returned from exile, self-imposed months earlier as a protest against colonial rule, Cambodia became independent from France.