International Criminal Justice: U.S. Reportedly Failed To Detain Rwandan Indictee of Spanish Court

In May 2011 Justus Majyambere, a major in the Rwandan Defense Forces, apparently visited the U.S. Military Staff College at Fort Leavenworth, Kansas as an official representative of his government. The purpose of the visit was to obtain ideas for starting a military college in Rwanda.[1]

That sounds like a positive development.

But Majyambere is under indictment by a Spanish court for alleged involvement in the killing of nine employees of a Spanish NGO in Rwanda and the Democratic Republic of the Congo. Therefore, he is under an Interpol “red notice,” a worldwide bulletin that is roughly equivalent to an arrest warrant. As a result, he reportedly was arrested upon his recent arrival in the U.S., but mysteriously was not detained and sent to Spain.[2]

If all of this is true, it is contrary to repeated statements by U.S. Ambassador-at-Large for War Crimes, Stephen Rapp, about U.S. supporting the arrest of fugitives from international criminal justice.[3] It is also contrary to the global goal of punishing and deterring violations of international humanitarian and human rights law.


[1] Rosen, U.S. Hosted Alleged Rwandan War Criminal for Military Visit, (June 20, 2011), http://www.theatlantic.com/international/archive/2011/06/us-hosted-alleged-rwandan-war-criminal-for-military-visit/240679/.

[2]  Id.

[3]  See Post: The International Criminal Court and the Obama Administration (May 13, 2011); Post: The International Criminal Court: Possible U.N. Security Council Referral of Syrian Human Rights Abuses to ICC (June 18, 2011).

Celebrating the Rhodes Scholarships’ Centennial

In July 2003 the Rhodes Trust[1] hosted gala celebrations of the centennial of the Rhodes Scholarships. My wife and I were privileged to be there.

Westminster Hall

Westminster Hall
Palace of Westminster

The main event was held in London’s Westminster Hall, which is part of the Palace of Westminster. Other parts of the Palace are the Chambers for the House of Commons and the House of Lords. When it was built in 1097, the Hall at 240 feet by 68 feet was the largest hall in Europe; in the reign of King Richard II it obtained a clear-span wood-beam roof. Here were held the trials of King Charles I, Sir William Wallace, Sir Thomas More, Guy Fawkes and the Earl of Strafford, all of whom were condemned to death. The Rhodes event in 2003 was the first (and, I think, still the only) time it had ever been used for a non-state occasion.[2]

As we were standing in a queue to go through security to enter the Hall, a BBC reporter quizzed me about the significance of the relatively few Rhodes Scholars who were in the George W. Bush Administration. I, however, declined to see any significance to that fact other than to note that Scholars usually were interested in trying to improve people’s lives through government programs.

The audience of over 1,000 Rhodes Scholars and their spouses were treated to interesting speeches from Lord Waldegrave, the Chairman of the Rhodes Trustees;[3] “Nicky” Oppenheimer, the Chairman of DeBeers, the diamond mining company started by Cecil Rhodes in South Africa in the 19th century;[4] Bill Clinton, the former U.S. President; Tony Blair, then the Prime Minister of the U.K.; and Nelson Mandela, the former President of South Africa.[5]

Lord Waldegrave commented on the recent creation of the Mandela Rhodes Foundation, a joint venture of the Rhodes Trustees and the Nelson Mandela Foundation to support aid and education in South Africa. An overarching theme of the centennial was the closing of the circle by joining together the controversial 19th century white entrepreneur (Rhodes) and the 20th century post-apartheid black South African leader (Mandela).[6]

Oppenheimer drew chuckles from the audience when he said that he was confident that the Founder (Cecil Rhodes), looking down from above, or perhaps looking up from below, would be proud of the accomplishments of his Scholars.

Tony Blair & Bill Clinton

Clinton joked that it was a sign of progress that all of the politicians that day felt safe in the Hall where King Charles I and Sir Thomas More had been tried and condemned to death. He and the other Scholars, he said, had been “enriched, enlarged and changed” by their time at the University of Oxford, and many of them had made “great contributions across the globe in public service, the arts, the sciences, business, the military, religion and other fields.” Clinton also applauded the new Mandela Rhodes Foundation to “bring some of Rhodes’ wealth back to its origins to help build a new South Africa.”[7]

Blair, putting his glasses into his breast pocket, said that President Mandela had just told him that he never reads a speech so Blair reciprocated by saying he would not read the speech that the Foreign Office had written for him. Blair recalled that when he was a student at Oxford, an Australian or New Zealand Rhodes Scholar had encouraged Blair to go into politics. Blair said that Mandela “is a person who, probably more than any other political figure, certainly in my lifetime, establishes the triumph of hope over injustice.” Blair also challenged the international community to do more to tackle the scourge of HIV and AIDS in Africa and the developed world to lift tariffs to help African exports.

Nelson Mandela

Mandela gave the concluding speech. He noted that Rhodes had made his fortune in South Africa and imagined that he would endorse the “decision to develop human capacity in modern-day South Africa, enabling that country to continue being a competitive presence in the world as it was in those fields within which he operated during his times.” Indeed, Mandela said, he was “certain, Cecil John Rhodes and I would have made common cause.”[8]

When all the speeches were finished, everyone on the speakers’ stage walked the over 200-feet length of the hall through the audience. Mandela, then nearly 85 years old, was frail, and to help him make the long walk, his right arm was held by Tony Blair; his left, by Bill Clinton. They brought tears to our eyes as they passed six feet from us on their journey through the Hall.

National Portrait Gallery

National Portrait Gallery, London

My wife and I then joined many others walking down Whitehall to the National Portrait Gallery on Trafalgar Square. In the Gallery’s Tudor Rooms Rhodes Scholars from the early 1960’s gathered for conversation, drinks and music from a string quartet.

Other groups of Scholars met in other parts of the Gallery and in the Banqueting Hall on Whitehall.

Dinner at Worcester College

We then went by train to Oxford, where each college held special black-tie dinners honoring their Rhodes Scholars.

Worcester College put out all the college silver and crystal for its Rhodes Scholar dinner. Everyone had an assigned place for the main courses and a different place for dessert. For the main course I was seated across the table from Julian Ogilvie Thompson, a South African Rhodes Scholar who was a director and former executive of DeBeers and the Anglo American gold and diamond mining company.[9]

After dinner I talked with David Kendall, who was at Worcester, 1966-68, and who in 1993 began legal representation of President and Mrs. Clinton in various matters, including the 1998-99 impeachment proceedings against Mr. Clinton.[10] David and I had met in the Spring of 1966, just after he had been elected as a Rhodes Scholar from Indiana’s Wabash College. Illinois Governor Otto Kerner had studied at Cambridge University and that Spring hosted a Cambridge-Oxford Boat Race Dinner at the Governor’s Mansion in Springfield. I joined a group that bused to Springfield from Chicago for the dinner, and David was a special guest on the bus and at the dinner.

Conclusion

These spectacular events reminded me of how fortunate I was to have been selected as a Rhodes Scholar and to have had the amazing experience of an Oxford education. Thank you, Cecil Rhodes.


[2] Wikipedia, Palace of Westminster, http://en.wikipedia.org/wiki/Palace_of_Westminster.

[3] Wikipedia, William Waldegrave, Baron Waldegrave of North Hill, http://en.wikipedia.org/wiki/William_Waldegrave,_Baron_Waldegrave_of_North_Hill.

[4]  Wikipedia, Nicky Oppenheimer, http://en.wikipedia.org/wiki/Nicky_Oppenheimer; Wikipedia, DeBeers, http://en.wikipedia.org/wiki/De_Beers.

[5] Russell, Mandela celebrates 100 years of Rhodes, (July 3, 2003), http://www.independent.co.uk; Johnson, Mandela, Clinton Celebrate with new Rhodes-Mandela Foundation (July 6, 2003), http://africanamerica.org.

[6] Earlier the Rhodes Trust had held centenary celebrations in South Africa.

[7] Bill Clinton, Speech: Rhodes Trust Centenary Celebration (July 2, 2003), http://www.clintonfoundation.org. I previously noted Clinton’s acknowledging his family’s embarrassment that he had not earned an Oxford degree in his two years at Oxford while congratulating his daughter Chelsea’s Oxford degree that summer. (See Post: Reading PPE at Oxford (June 6, 2011).

[8] Nelson Mandela, The Patron’s Founding Speech (July 2, 2003), http://db.nelsonmandela.org/speeches/pub_view.asp?pg=item&ItemID=NMS1073&txtstr=westminster.

[10]  David Kendall Biography, http://www.wc.com/dkendall

Oxford’s Lord Franks

Lord Franks

In February 1962, Sir Oliver Shewell Franks was installed as the Provost of Oxford’s Worcester College. Three months later he was awarded a life peerage as Lord Baron Franks, of Headington in the County of Oxford.[1]

As a Worcester student at the time, I soon learned that Franks was “Mr. Establishment.”

After a brilliant performance as a Classics student at Oxford with a Congratulatory First in 1927, Franks immediately was elected a Fellow in Philosophy at Oxford’s Queens College. There he helped to establish the new degree in Philosophy, Politics and Economics (PPE). In 1937 Franks moved to Glasgow University to hold the Chair in Moral Philosophy, a post once held by Adam Smith.

With World War II on the horizon in 1939, he was conscripted into the U.K. Civil Service to work in the Ministry of Supply, which was in charge of production of war material and equipment. His successful efforts to replenish the British military equipment after the forced withdrawal of forces from Europe at Dunkirk in 1940 drew praise, and by the end of the war Franks was Permanent Secretary of the Ministry. For this exemplary public service, he was made a Commander of the British Empire in 1942 and a Knight Grand Cross in 1946.

After the war in 1946, Franks returned to Oxford’s Queen’s College to be its Provost. He was able to hold this position for only two years, but thereafter was a lifetime Honorary Fellow of the College.

The reason for his 1948 departure from Oxford was his acceptance of a request by Prime Minister Clement Atlee to be the U.K. Ambassador to the U.S., a position he held until 1952. During these years he headed the British delegation for European discussions about what became the Marshall Plan for U.S. aid to Europe. He helped to found the North Atlantic Treaty Organization and became Chairman of the Organization for European Economic Cooperation.

In 1953 Franks had many offers of important jobs in the U.K. and Europe. The one he chose in 1954 was Chairman of Lloyd’s Bank, one of Britain’s largest banks, and he held this position until 1962, when he became Provost of Worcester College. Franks also headed many important commissions of inquiry and was on the board of trustees or directors of other important institutions in the U.K.

In 1960 Franks, with the support of influential heads of several Oxford colleges, was a candidate for the Chancellorship of the University of Oxford, its titular head. His main opponent was Harold Macmillan, then Prime Minister. I recall reading in Anthony Sampson’s Anatomy of Britain (1962) that the Chancellorship was an office elected by the holders of Oxford M.A. degrees, who were physically present at a meeting in Oxford’s Sheldonian Theater. Sampson also reported that Macmillan thought that losing this election to Franks would be a political embarrassment and so ordered or persuaded the many government officials and civil servants who held Oxford M.A. degrees to go by train to Oxford that day to vote for Macmillan. With that special effort, Macmillan won the election by a narrow margin and became the Chancellor. He still held that position in 1983 when he attended the dinner to celebrate Worcester College’s 700th anniversary.[2]

In 1962 when Franks became Worcester’s Provost, he turned down an offer from Prime Minister Macmillan to be the Governor of the Bank of England. He retired from Worcester in 1976, but remained active on the boards of various important institutions and government and university commissions until his death in 1992.

Through this life of remarkable service, Franks gained a reputation as the “Divine Authority” or the “Headmaster of Headmasters.” At 6’2″ with a high brow, he gave the impression of all-seeing omniscience. It was said that if you managed to break the ice with Franks, you would find a lot of cold water underneath.

With such a record and reputation, Franks was an imposing figure for a lowly Oxford undergraduate like me to encounter. I, therefore, was surprised to discover a shy, engaging human being.

At a sherry party in the Provost’s Lodgings at Worcester, Franks once asked me, “Krohnke, do you know why The Times (of London, of course) has advertisements on its front page?” I did not know, so he told me that in the great houses of Britain the butler ironed The Times before the head of the house read the newspaper. I thought that was a bit silly, but there is a scene in the movie The Remains of the Day in which the butler played by Anthony Hopkins is ironing the newspaper. And in the 2011 version of Upstairs, Downstairs a fuss is made when the newspaper arrives too late for the butler to iron the newspaper. (The Times many years ago ceased the practice of front-page advertisements only.)

In the Spring of 1963 Franks lead a “revision” session on political philosophy for Worcester students who were taking PPE Schools that year.[3] Franks mentioned “life, liberty and the pursuit of happiness” from the U.S. Declaration of Independence.  One of the English students who had attended Eton College, the preeminent English “public” school, interrupted to say, “I am sorry, I did not get that all written down. Would you repeat that phrase, please?” (Perhaps it was just my American background, but I always thought it odd that an Oxford University student, in PPE, would not know that phrase.)

In June 1963, after I finished PPE “Schools,” my fiancée and I were married in Oxford’s Manchester College Chapel. As a wedding gift, Lord and Lady Franks gave us a beautiful colored print of the Worcester Provost’s Lodgings.

After I had obtained a First in PPE, Franks sent me a short typed note with his “warm congratulations” and announcement of my receiving a “College Prize for your performance in the examination.” (The prize was “books to the value of ten guineas.”) Another short typed note at the same time stated that he  was “glad to give you the College Grace to take your B.A. degree.” (This undoubtedly was a form note that gave the college a lever to force you to pay all of your college bills.)

My best Franks story, however, took place earlier in one of Worcester’s Senior Common Rooms when my philosophy tutor gave an oral “report card” on my performance to Franks as the head of the College. All of us were in suit and tie, of course, and covered by academic gowns. My tutor must have given a positive report on my performance although I do not recall what he said. Franks responded, “Krohnke, your tutor says you are doing very well. But I do think there is more time for devilry.” I was caught totally off-guard by this note of levity from the august personage of Lord Franks. The word “devilry” was not in my vocabulary, but it sounded mischievous. I had no response.


[1] Wikipedia, Oliver Franks, Baron Franks, http://en.wikipedia.org/wiki/Oliver_Franks,_Baron_Franks; Middlemas, Obituary: Lord Franks, The Independent (Oct. 17, 1992), http://www.independent.co.uk/news/people/obituary-lord-franks-1557796.html; Lambert, Lord Franks, Diplomat Who Led Marshall Plan Effort, Dies at 87, N.Y. Times (Oct. 18, 1992)(http://www.nytimes.com/1992/10/18/world/lord-franks-diplomat-who-led-marshall-plan-effort-dies-at-87.html?pagewanted=print&src=pm; Alex Danchev, Oliver Franks: founding father (Oxford: Clarendon Press 1993);Michael Hopkins, Oliver Franks and the Truman Administration: Anglo-American Relations, 1948-1952 (London: Frank Cass 2003); Smethurst, Oliver Shewell Franks, 139 Proceedings of the American Philosophical Soc’y 83 (1995); Franks, Britain and the Tide of World Affairs (London: Oxford Univ. Press 1955); Somerville, Oliver Franks, hsommerville.com.

[2] See Post: Celebrating Worcester College’s 700th Anniversary (May 29, 2011).

[3] See Post: Reading PPE at Oxford (June 6, 2011); Post: PPE Examinations at Oxford (June 10, 2011).

International Criminal Court: Possible U.N. Security Council Referral of Syrian Human Rights Abuses to ICC

As previously mentioned, the International Criminal Court (ICC) has jurisdiction over the crime of genocide, crimes against humanity and war crimes, and one of the ways in which it can obtain jurisdiction over a specific situation is by referral from the U.N. Security Council. [1] The Council already has done so with respect to Sudan (Darfur) and Libya.[2]

Now the U.S. is considering asking the U.N. Security Council to refer possible Syrian human rights abuses to the ICC for investigation and possible prosecution. On June 17th U.S. officials said the possible referral was in reaction to the regime’s killing 1,100 civilians since March and another 20 on Friday.[3]

Russia and China, two other permanent Security Council members with veto power, have expressed opposition to pressuring Syria through the Council. But the U.S. now is pressing Russia to support a Council resolution on Syria.[4]

Earlier in June Syrian opposition and human-rights groups presented the ICC’s Prosecutor with information about alleged crimes against humanity by the Syrian regime. This information had details about attacks on civilians: over 1,100 killings, 3,000 injured and 900 forced disappearances. The report also alleged the regime’s use of torture, snipers, attack helicopters and tanks against civilians. [5]

In May U.S. Ambassador-at-Large for War Crimes, Stephen Rapp, reiterated U.S. support for the ICC. He  mentioned how the U.S. as a non-member was cooperating with the ICC: participating as an observer at meetings of the Court’s Assembly of States Parties, assisting the Court with information-sharing, witness relocation and protection and the arrest and transfer of ICC fugitives. The U.S. also supported the Security Council’s referral of the Libyan situation to the ICC.[6]


[1] See Post: The International Criminal Court: Introduction (April 28, 2011).

[2] See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011); Post: The International Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011).

[3]  Solomon, U.S. Pushes to Try Syria Regime, Wall S. J. (June 18, 2011); Shanker, War Crimes Charges Weighed as Crisis Continues in Syria, N.Y. Times (June 19, 2011); Reuters, Russia’s Medvedev Opposed to U.N. Vote on Syria: Report, N.Y. Times (June 19, 2011).

[4]  Id.

[5] Id.

[6] Rapp, Where Can the Victims of Atrocities Find Justice? (May 10, 2011), http://www.state.gov/s/wci/us_releases/remarks/165257.htm.

International Criminal Justice: Winding Down Two Ad-Hoc Criminal Tribunals

We have seen that two of the institutions of international criminal justice are the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY). They are both so-called ad hoc tribunals that were created by the U.N. Security Council.[1]

Both were created with the clear expectation that they would not be permanent institutions. Instead, they had set terms of existence that have had to be extended. Those termination dates are now July 1, 2012 (ICTR) and July 1, 2013 (ICTY). To cope with their anticipated unfinished business when they cease to exist, the Security Council created another institution with the awkward title of the International Residual Mechanism for Criminal Tribunals (IRMCT).[2]

On June 6, 2011, the Security Council heard from the ICTR and ICTY on the status of their efforts to complete their work by the above dates. Despite their diligent efforts, both tribunals face difficulties in meeting the deadlines.[3]

One problem is the recent arrests of defendants (Mladic for ICTY and Munyagishari for ICTR) and the resulting preparations for, and conducting, their trials.

Another problem for both tribunals is the departure of professional staff members who understandably are seeking new jobs with ongoing institutions, rather than be left standing on a sinking ship. One solution to this problem that was suggested at the recent Security Council meeting was paying retention bonuses to those who stay until the tribunals are terminated. Good idea, but what is the source of the funds to pay such bonuses? The tribunals are paid for by the Security Council, which always has difficulties in obtaining funds for its budget.

One way to help get their work done by their end dates is to refer as many remaining cases as possible to national courts. Both tribunals are doing so.

These inherent administrative difficulties that are associated with ending the ad hoc tribunals are one set of reasons for the establishment of the permanent International Criminal Court. Since it is a permanent body, it will not experience these problems.[4] In addition, unlike the ad hoc tribunals, the ICC, once established, is able to take on current problems like Libya.[5]

All three of these institutions, however, share the difficult challenge of trying to shorten the time required for trials. Given the nature of the crimes within the jurisdiction of these bodies, this is not easy. For example, the ICC has jurisdiction over defined “war crimes,” which require proof of certain acts when “committed as part of a plan or policy or as part of a large-scale commission of such crimes.” Such proof is not simple.[6]

Thus, the recent Security Council meeting included discussion of the need for the ICTR and ICTY to have greater judicial efficiency while still providing due process to the defendants. The tribunals’  representatives  talked about the recent introduction of electronic filing, amendments to their rules of procedure and evidence and improved case management techniques, limiting amendments to the grounds for appeal, organization of judgment drafting and prioritization of work. There were no details of these efforts provided at the Security Council meeting, but although they sound good, they seem an inadequate response to me. More promising were suggestions on this subject from one of the ICC judges:

  • Have court-appointed experts present reports regarding context, background, general circumstances of alleged offenses and peripheral facts.
  • Use depositions for less central areas of evidence.
  • Increase use of video links to hear some witnesses.
  • Require parties for each witness to identify areas of undisputed and of disputed testimony.
  • Amend the Rome Statute to allow a single judge to hear some parts of trial instead of the three judges now required for all aspects of a trial.
  • Examine whether the ICC is efficiently operating and using its funds.
  • Develop expedited procedures for interlocutory appeals.[7]

Another problem was presented by the ICTR. It continues to face difficulties in relocating acquitted defendants and convicted individuals who have served their sentences.

The Security Council meeting was attended by a representative of the government of Rwanda, which is not a member of the Council. He raised a separate issue. He said of utmost concern to his government was the “scourge of genocide denial by some in the academic and legal professions, including ICTY defense lawyers, [who] are leading an international campaign to misrepresent, misinterpret and openly deny that, in 1994, there was a genocide perpetrated against the Tutsi in Rwanda. . . . Such attempts  . . . are . . . not only morally reprehensible, but also a violation of the ethics and rules of professional conduct for attorneys. . . . The Government of Rwanda will . . . continue to ensure that, without prejudice or favor, any individual who engages in revisionism or denial of [this] . . . genocide . . . be brought to justice in accordance with the Rwandan Constitution and other legal instruments.”

This Rwandan statement is not an idle threat. In 2010 Rwandan authorities arrested and jailed for nearly three weeks a defense lawyer before the ICTR, Peter Erlinder of Minnesota, for allegedly denying that genocide had happened.[8] Such threats and charges, I submit, are infringements of a defendant’s right to counsel and of the lawyer’s duty zealously to represent his client. The Minnesota State Bar Association stood up for Erlinder with a resolution that urged the Rwandan government “to drop all charges against him based on actions taken in the course of his professional representation of his clients in Rwanda and the exercise of his internationally recognized rights to freedom of expression, belief, association and assembly, and . . . to allow him to continue his legal representation and the exercise of his rights to freedom of expression, belief, association and assembly without further intimidation, hindrance, harassment or improper influence.”[9]

Despite all of these administrative problems, the French Ambassador to the U.N. at the recent Council meeting reminded us all that the recent arrests of Mladic and the Rwandan fugitive and the continued efforts to find and prosecute those charged with these grave crimes send “an important message.” For “all of those who today still try to come to power–or stay in power–by ordering and planning attacks against civilians, to all those who, when faced with an international criminal justice arrest warrant . . ., think that they can count on weariness or inaction on the part of the [Security] Council [or the international criminal tribunals], [t]hey are mistaken.”


[1] See: Post: International Criminal Justice: Introduction (April 26, 2011); Post: International Criminal Justice: Mladic To Face Charges at ICTY (May 27, 2011); Post: International Criminal Justice: Mladic Update (June 1, 2011).

[2]  See Post: International Criminal Justice: The Residual Mechanism for Criminal Tribunals (May 28, 2011).

[3]  U.N. Security Council, 6545th Meeting (June 6, 2011); U.N. Security Council, Press Release: Arrests of Long-Sought Fugitives Commended in Security Council, But Challenges to Completing Work in War Crimes Tribunals Dominate Briefings by Officials (June 6, 2011).

[4]  See Post: International Criminal Court: Introduction (April 28, 2011); Post: International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[5]  See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011); Post: The International Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011).

[6]  Rome Statute for ICC, Art. 8(1).

[7]  ICC Judge Adrian Fulford, The Reflections of a Trial Judge (Dec. 16, 2010).

[8]  Kron & Gettleman, American Lawyer for Opposition Figure Is Arrested, N.Y. Times (May 28, 2010); Ward, Hearing could end Erlinder’s “holding pattern” in Rwanda, StarTrib. (June 6, 2010); Herb, Erlinder is sent to prison after Rwanda denies bail, StarTrib. (June 7, 2010); Diaz, Erlinder essay on Rwanda has defense nervous, StarTrib. (June 11, 2011); Herb & Diaz, Erlinder acknowledges suicide attempt in jail, StarTrib. (June 15, 2010); Herb & Diaz, Rwanda frees Peter Erlinder on bail, StarTrib. (June 17, 2010); Diaz & Herb, Nightmare over, Erlinder’s home, StarTrib. (June 22, 2010); Kron, U.S. Lawyer Is Barred from Rwanda Tribunal Work, N.Y. Times (April 22, 2011).

[9] Minn. State Bar Ass’n, General Assembly Resolution (June 25, 2010).  Professor Erlinder has written an account of his arrest and jailing which, he says, was due to his having used discovery proceedings to uncover original documents in U.N. and U.S. Government archives that confirm that the victors in the four-year Rwandan war have told the story of the violence that occurred during that war; he also criticizes the record of the ICTR as one-sided prosecution. (Erlinder, The UN Security Council Ad Hoc Rwanda Tribunal: International Justice or Juridically-Constructed “Victor’s Impunity”?, 4 DePaul J. Soc. Justice 131 (2010).) Erlinder also has created the Rwanda Documents Project to collect and make available primary source materials from international and national agencies, governments, and courts that relate to the political and social history of Rwanda from 1990 to the present. (Rwanda documents project, http://www.rwandadocumentsproject.net/gsdl/cgi-bin/library.)

International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur)

As previously reported, the ICC has been investigating the situation in Sudan (Darfur) for genocide, crimes against humanity and war crimes since July 1, 2002, at the request of the U.N. Security Council.[1]

On June 8, 2011, the ICC Prosecutor made his semi-annual report to the U.N. Security Council on the status of his office’s investigations and prosecutions in this matter.[2] The following are the main points of that report:

  • There are three pending ICC prosecutions from Sudan (Darfur). In two of them–Harun and Kushayh and Bashir–the defendants are still at large, and thus the proceedings have not really commenced. In the third case against two rebel commanders, the parties have agreed to certain facts and limited the trial to three issues: (1) whether a certain attack by the rebels was unlawful; (2) if the attack is deemed to be unlawful, whether the defendants were aware of the factual circumstances that established its illegality; and (3) whether the African Union Mission in Sudan was a peacekeeping mission in accordance with the U.N. Charter. In this third case, the defendants do not dispute their participation in the attack and both have committed to surrender voluntarily to the ICC.
  • The Prosecutor also said his office was considering presenting a fourth Sudanese case to the Court’s Pre-Trial Chamber for its decision whether or not to issue arrest warrants.
  • All of these cases concern past alleged crimes. In addition, the Prosecutor reported that the following crimes were continuing: bombing attacks targeting or indiscriminately affecting civilians; ground attacks targeting civilians; widespread sexual and gender-based violence; attacks on human rights defenders, civil society members and community leaders; deliberately inflicting conditions of life calculated to cause physical destruction of groups of people; forcible transferring of populations; recruitment and use of child soldiers; and concealing information on crimes.
  • The government of Sudan has announced its investigations of these alleged crimes and the creation of new entities to do so, but there are no such investigations, and the announcements are parts of a governmental policy of covering up the crimes and avoiding international scrutiny.
  • When the ICC exposes these crimes, the reaction of President Bashir and other leaders has been “to deny the crimes entirely, attribute them to other factors (such as inter-tribal feud), divert attention by publicizing . . . ceasefire agreements that are violated as soon as they are announced and threaten the international community with retaliation and even more crimes. . . . Bashir has successfully transformed public knowledge of his criminal responsibility as a negotiating tool.”
  • “It is the challenging responsibility of the . . . Security Council to use the information exposed by the [ICC] to stop the crimes in Darfur, to protect the civilians in Darfur. The [ICC] Prosecution, fulfilling its mandate, is willing to assist.”

After the submission of this report, the Council’s 15 members went into private session to discuss the report. They were joined by representatives of 37 other countries.[3]

Immediately after this Security Council meeting there were reports of a “growing sense of panic” in central Sudan with 60,000 displaced people, blocked relief convoys, ethnic clashes and many deaths. This week the Council was given an alarming report about current violence and threatened ethnic cleansing.[4] In short, the armed conflict in Darfur has not stopped. Nor has the illegal intentional practice of targeting civilians.

Sudanese President Bashir’s evasion of arrest to face ICC charges continues to make the news. On June 13th, Hillary Clinton, U.S. Secretary of State, addressed African leaders at a meeting of the African Union in Addis Ababa, Ethiopia and pressed them to abandon authoritarian rulers. President Bashir also was in Addis Ababa for the meeting, but left before Clinton arrived.[5] On June 14th Amnesty International urged Malaysia to withdraw an invitation to President Bashir to attend an upcoming economic forum and to arrest him if he came. On June 16th Amnesty International made a similar plea to China after its announcement that Bashir would be visiting that country next week supposedly to talk about seeking peace in his country.[6]


[1] See Post: International Criminal Justice: Introduction (April 26, 2011); Post: International Criminal Court: Introduction (April 28, 2011); Post: International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[2]  ICC Office of Prosecutor, Thirteenth Report of the [ICC] Prosecutor to the UN Security Council [on Sudan (Darfur)] (June 8, 2011); ICC Office of Prosecutor, Statement to the [U.N.] Security Council on the situation in Darfur, the Sudan (June 8, 2011); U.N. Security Council,6548th Meeting (June 8, 2011); U.N. Security Council, Press Release: President of Sudan Has Learned To Defy Security Council . . . . (June 8, 2011).

[3]  U.N. Security Council, 6549th (closed) meeting (June 8, 2011).

[4]  Gettleman, U.N. Officials Warn of a Growing ‘Panic” in Central Sudan as Violence Spreads, N.Y. Times (June 15, 2011); Lynch, Obama expresses concern over Sudan violence, Wash. Post (June 16, 2011); Reeves, In Sudan, genocide anew?, Wash. Post (June 17, 2011); Totten, Is Omar Hassan al-Bashir Up to Genocide Again?, N.Y. Times (June 18, 2011).

[5] Myers, Clinton Presses Africans to Abandon Authoritarian Rulers, Singling Out Qaddafi, N.Y. Times (June 13, 2011).

[6] AP, Amnesty urges Malaysia to withdraw invitation to Sudan president or arrest him when he arrives, Wash. Post (June 14, 2011); AP, China Invites Sudan Leader Accused of War Crimes, N.Y. Times (June 16, 2011); AP, US Seeks China’s Help in Sudan as Alarm Grows, N.Y. Times (June 16, 2011); AP, Sudan leader al-Bashir to skip Malaysia forum amid calls to arrest him on war crime charges, Wash. Post (June 15, 2011).

El Salvador’s Current Controversy over Its General Amnesty Law and Supreme Court

As indicated in a prior post, the issue of the constitutionality under Salvadoran law of the General Amnesty Law has not gone away. Indeed, that issue and a new law regarding its Supreme Court (Decree 743) have precipitated a major, still-unresolved controversy in the country.[1]

As an outsider, I have found it difficult to understand and analyze this controversy. I, therefore, will try to summarize what has been happening. I cannot predict how this will turn out, but will conclude with my observations and questions.

The first step in this still unfolding drama was the May 30, 2011, decision by a Spanish court to issue criminal arrest warrants for 20 Salvadoran military officers and soldiers for their alleged participation in the November 1989 murder of the six Jesuit priests.[2]

The next step was the adoption without debate three days later (June 2, 2011) of Decree 743 by the votes of the conservative political party legislators of the Salvadoran legislature (the National Assembly) with abstentions from all but two of the FMLN legislators and by the signing of the law the next day (June 3, 2011) by  President Funes of the FMLN party. Decree 743 requires through July 2012 the five-member Constitutional Chamber of the Salvadoran Supreme Court to act unanimously in order to declare a law unconstitutional.[3]

Decree 743 and the highly unusual and hasty manner in which it was adopted have caused major citizen protests in the capitol city and debate in the media and various organs of the State.[4]

Much debate and speculation has centered on why the Decree was proposed and adopted by the legislators from the conservative political parties. Foremost, as former President Cristiani, who is now the President of the ARENA political party, has admitted, was concern that the Constitutional Chamber would invalidate the General Amnesty Law. Was there worry that a decision invalidating that amnesty law would facilitate a Salvadoran court’s enforcing the Spanish arrest warrants? The conservative political parties, it is true, also disliked some of the recent decisions by the four moderate or progressive members of the Chamber that have invalidated various laws. Was that the main reason? If so, why did the Decree have to be adopted so quickly without debate? The “sunset” provision of Decree 743 is also seen as an implicit recognition that it is aimed at the four progressive members of the Chamber in that their current three-year terms expire in July 2012.

So too there is debate and speculation as to why President Funes from the FMLN political party quickly supported the Decree when the FMLN itself did not. Was there pressure by the U.S., which does not want El Salvador to withdraw from the Central American Free Trade Agreement (CAFTA) and to stop using the U.S. Dollar as the country’s currency and, therefore, feared the Constitutional Chamber’s invalidating those laws? Was something not yet known promised Funes by the conservative political parties in exchange for his supporting the Decree? Some speculate that Funes did so to gain support in the National Assembly for a moderate legislative agenda. True?

The third step in this drama was the Constitutional Chamber’s decision in a case on June 6th (only three days after the adoption of Decree 743) that decided, by four of the five magistrates, that the country’s Budget Act 2011 was unconstitutional in two respects and that the just-adopted Decree 743 itself was unconstitutional. Decree 743 was held to violate the principle of separation of powers and to interfere with the constitutional powers of the Chamber; the decree, according to the court, was also adopted by the legislature in an unconstitutional manner.[5]

Yet another wrinkle was added to this controversy by the announcement on June 8th by Cristiani, as President of the ARENA political party. He said that ARENA had supported Decree 743 on June 2nd because of rumors that the Chamber was about to declare the General Amnesty Law unconstitutional.  On June 8th (only six days after the legislature’s adoption of the Decree), however, Cristiani said that the information about the Chamber’s impending invalidation of the General Amnesty Law was erroneous and that instead the Chamber had made a “clear demonstration” that it did not intend to invalidate the amnesty. Therefore, Cristiani said, ARENA would be introducing a bill to repeal that Decree. This about-face, he said, was to end the conflict over the Decree and to promote dialogue among the three branches of government.[6]

This ARENA reversal itself has created more controversy and speculation. Why did it change its mind in only six days? Did it really want to end the conflict over the Decree and promote dialogue? Did it receive secret and improper leaks from the Chamber that it would not invalidate the General Amnesty Law? Was there in fact no pending case regarding the Amnesty Law? Was it discovery that the Chamber seven years ago had ruled that the Amnesty Law did not apply to the murders of the Jesuits because no administration may grant amnesty to itself?[7] Was it due to the Chamber’s June 6th decision holding that the Decree was unconstitutional and by respected attorneys publicly taking the same position?[8]

However, later on the very same day as the ARENA announcement of changing its position (June 8th), an attorney filed two cases with the Chamber challenging the constitutionality of the General Amnesty Law and El Salvador’s being a party to CAFTA. Will this cause ARENA to change its mind again?

The FMLN positions in this controversy are even more baffling. On June 2nd all but two of the FMLN legislators abstained on voting on Decree 743, saying it was a blow to democracy. The June 8th ARENA reversal of position on the Decree, therefore, presumably would be welcomed by the FMLN. The FMLN, however, also reversed its position. Its spokesman now said that the Decree had “no reverse gear” and that the Chamber’s June 6th invalidation of the Decree was a danger for the other institutions of the government. Why was the FMLN party taking these positions?[9]

President Funes from the FMLN appears to be the only participant who has had a consistent position. When he signed the Decree, he has said he did so because it was constitutional, it would prevent a looming conflict between the legislature and the judiciary and it would not obstruct the operations of the Chamber. Was this the real reason? After the ARENA reversal of position, he still supported the Decree and said that ARENA’s change appeared to reflect an improper agreement with the Chamber not to declare the amnesty unconstitutional and an improper attempt to influence the Chamber and cast doubt on the independence of some judges.[10] (The next day both ARENA and the President of the Supreme Court denied the existence of any agreement regarding the amnesty law between the Constitutional Chamber and ARENA or Cristiani.)[11]

As an outsider without full knowledge of all the facts, all I can do is speculate and raise questions.

The timing and manner of the adoption of Decree 743 and the comments by Cristiani suggest to me that the Decree is most directly connected with the Spanish court’s issuance of the indictment and warrants.

First, I had thought that the validity or invalidity of the General Amnesty Law had become a theoretical issue. That Law grants amnesty for certain crimes committed before January 1, 1992 (the end of the Civil War) or over 19 years ago. But for that time period, El Salvador had a 10-year statute of limitations for such crimes that in December 2000 was held to bar a new Salvadoran criminal case over the murders of the Jesuits without regard to the General Amnesty Law.[12] Although there is a basis under international law for challenging the validity of such a short statute of limitations for such horrendous crimes,[13] that appeared to me to be unlikely to succeed in El Salvador.

Second, the Spanish indictment was issued on May 30th and gave the defendants, the majority of whom are still Salvadoran residents, only 10 days (until June 9th) to surrender themselves to the Spanish court before additional steps would be taken to secure their arrests.[14] On June 2d (only three days after the issuance of the indictment) the National Assembly without debate adopted Decree 743, and the next day (June 3) it was signed by President Funes and enacted into law. This suggests to me a desire by the conservative political parties (and the President) to have Decree 743 in place before the Spanish court would take steps to have the Salvadoran courts issue arrest warrants for the defendants and thereby give those defendants a possible legal basis (the General Amnesty Law) to resist the arrest warrants. Is this what happened?

Third, Cristiani was a subject of the original criminal complaint in Spain and a potential additional indicted defendant in the Spanish case.[15] Thus, he has a profound personal interest in having Salvadoran legal defenses to any future attempt by the Spanish court to have him arrested in his home country. Just this month he has been the principal spokesman for ARENA regarding its original support of Decree 743 and tying it to trying to ensure that the General Amnesty Law is not invalidated. Was this at least part of Cristiani and ARENA’s motivation for their original support of Decree 743?

Fourth, it is much more difficult to understand the reasons why President Funes immediately signed the Decree when his political party (the FMLN) was opposed. His rationale as stated on June 10th is not persuasive to me as an outsider. I, therefore, wonder if President Funes had received threats that the Salvadoran military (or a paramilitary organization) would intervene to prevent the removal of these officers from the country? Was the perceived elimination of a threatened invalidation of the General Amnesty Law by requiring unanimity in the Constitutional Chamber seen as a way to prevent the extradition of the military men through the courts and thus avoid a military intervention or coup?

Finally, is it possible that all of this controversy is unnecessary? Could the Constitutional Chamber hold the General Amnesty Law constitutional, but like the U.S. federal courts conclude it is not applicable to proceedings in other countries?[16]


[1] See Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011).

[2]  See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (June 15, 2011).

[3] Marinero, Funes sanciona reformas para que fallos de amparos e inconstitucionalides sean por decision unanime, (June 3, 2011), http://www.lapagina.com; ?Donde se gesto el decreto que le puso el freno legal a la Sala de lo Constitucional?, (June 4, 2011),www.lapagina.com.sv; Voices from El Salvador, Institutional Coup in El Salvador (June 4, 2011), http://voiceselsalvador.wordpress.com/2011/06/04/institutional-coup-in-el-salvador; Voices from El Salvador, Salvadorans Protest the Government’s Actions Against Constitutional Court (June 6,2011), http://voiceselsalvador.wordpress.com/2011/06/06/salvadorans-protest-the-governments-actions-against-constitutional-court; Tim’s El Salvador Blog, Broad opposition to Decree 743 (June 8, 2011),   http://luterano.blogspot.com/2011/06/broad-opposition-to-decree-743.html.

[4] Id.; Ortiz, Attorney Oscar Luna condemns the decree 743 (June 13, 2011), http://www.lapagina.com.sv (English translation; Luna is El Salvador’s human rights ombudsman); Discussions in the Constitutional Court in El Salvador (June 13, 2011), http://www.centralamericadata.com (Salvadoran Chamber of Commerce and Industry calls for repeal of Decree 743); Voices on the Border, The Debate Over Decree 743 Continues (June 14, 2011).

[5] Arauz, Constitutional Chamber hereby declared the decree that would tie the hands, elfaro (June 6, 2011), http://www.elfaro.com.sv; Merinero, Guerra de poderes en El Salvador: La Corte Suprema declara inapplicable el articulo que exige unanimidad en fallos de la Sala de lo Constitucional, (June 6, 2011), http://www.lapagina.com.sv.

[6] Huete, Henriquez & Cabrera, ARENA perida derogatoria de decreto 743, La Prensa Grafica (June 8, 2011), http://www.laprensagrafica.com; Arauz, ARENA retract the decree against FMLN urges Chamber and fulfill, elfaro (June 8, 2011).; Perez, ARENA se retracta y promote pedir la derogacion del decreto 743, (June 8, 2011), http://www.lapagina.com.sv; Otto & Marinero, ARENA contra la pared: ya hay dos recursos de inconstitucionalidad contra la Ley de Amnistia y el TLC (June 8, 2011), http://www.lapagina.com.sv.

[7]  I have not seen this case myself, but it is referenced in one of the articles about the current controversy. I solicit information about this case.

[8] See n.6.

[9] E.g., FMLN reiterated it would not support repeal of Decree 743 (June 14, 2011), http://www.lapagina.com.sv.

[10] Guzman, Funes: “Aqui no ha habido ningun compadre hablado entre el presidente y la derecha, (June 6, 2011), http://www.lapagina.com.sv; Guzman, Funes: La confesion publica de ARENA es una injerencia inacceptable en el Organo Judicial, (June 10, 2011), http://www.lapagina.com.sv.

[11] Voices on the Border, The Debate Over Decree 743 Continues (June 11, 2011).

[12]  No New Trial Set in Deaths of 6 Jesuits, Miami Herald, Dec. 14, 2000.

[13]   E.g., Barrios Altos v. Peru, 2001 Inter-Am. Ct. H.R. (Ser. C) No. 75, ¶ 41 (Mar. 14, 2001); Convention on the Non-Applicabilty of Statutory Limitations to War Crimes and Crimes Against Humanity, Art. I (war crimes, crimes against humanity and genocide); European Convention on the Non-Applicability of Statutory Limitation to Crimes Against Humanity and War Crimes, Art. 1 (crimes against humanity, genocide, war crimes and “any other violation of a rule or custom of international law which may hereafter be established and which the Contracting Party concerned considers . . . as being of a comparable nature to [the previous crimes]”); Inter-American Convention on Forced Disappearance of Persons, Art. VII; Rome Statute of the International Criminal Court, Art. 29 (genocide, war crimes and crimes against humanity). Moreover, El Salvador apparently has a new statute that has no time limit for criminal prosecutions for torture, genocide, war crimes and certain other crimes occurring after sometime in 1996. (Ruth A. Kok, Statutory Limitations in International Criminal Law at 45 (Cambridge, U.K.: Cambridge Univ. Press 2007).)

[14] CJA, Spanish National Court Indictments and Arrest Warrants (May 30, 2011)(in Spanish), http://www.cja.org/downloads/JesuitsArrestWarrants.pdf;  CJA, Update: Spanish Judge Issues Indictments and Arrest Warrants in Spanish Jesuits Massacre Case (May 31, 2011), http://www.cja.org/article.php?id=1004.

[15]  See Post: International Criminal Justice: Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (June 15, 2011).

[16] See Post: El Salvador’s General Amnesty Law in U.S. Federal Court Cases (June 14, 2011).