Delay in U.S. Extradition of Inocente Orlando Montano Morales to Spain for Trial in Murder of the Jesuit Priests in El Salvador

 

Previous posts have discussed U.S. proceedings for extradition to Spain of Inocente Orlando Montano Morales (“Montano”), a former Salvadoran military officer, for his alleged participation in the murder of six Jesuit priests in El Salvador in November 1989. Such extradition was approved in February 2016 by a U.S. Magistrate Judge in the U.S. District Court for the Eastern District of North Carolina, and thereafter Montano challenged that decision by filing an application for a writ of habeas corpus in that court with a hearing in November 2016 on that application and the Government’s motion to dismiss the application.[1]

Four months later, on March 27, 2017, U.S. District Judge Terrence W. Boyle entered an order denying the Government’s dismissal motion without prejudice and requesting the parties to submit new briefs to address certain issues.[2]

Judge Boyle’s analysis started with the assertions that (a) Spain’s criminal case against Montano and others was based upon its law prohibiting “terrorist murder” in other countries of its nationals, five of whom were the murdered Jesuit priests; and (b) the bilateral extradition treaty between Spain and the U.S. required under these circumstances that U.S. law provided “for the punishment of such an offense committed in similar circumstances.”

Thus, for Judge Boyle, the issue to be addressed by the parties in subsequent briefs was whether the U.S. Constitution and law and international law provided for U.S. prosecution of such an offense under similar circumstances. The balance of the Judge’s Order suggests that he has serious doubts that this is so.

He starts with this legitimate premise: “Universal jurisdiction is an international law doctrine that recognizes a ‘narrow and unique exception’ to the general requirement that nations have a jurisdictional nexus before punishing extraterritorial conduct committed by non-nationals” (quoting an Eastern District of Virginia case that was affirmed by the Fourth Circuit, which has jurisdiction over Judge Boyle’s court). This “narrow and unique exception,” he implicitly says, is limited to offenses that “rise to the level of universal concern.”

International Law Issue

Judge Boyle then makes a questionable assertion, which he pins on the parties’ alleged previous arguments, that Spain’s charges for “terrorist acts involving the murder of five Jesuit priests” do not rise to the level of universal concern, such as piracy or genocide.” For this proposition the Judge cites section 404 of the Restatement (Third) of Foreign Relations Law [of the U.S.] (1987), which says, in part, that “offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps terrorism.” (Emphasis added; p. 3, n.2.) Two pages later the Judge cites United States v. Yousef, 327 F.3d 56, 107-08 (2d Cir. 2003), which apparently concluded that “terrorism . . . does not provide a basis for universal jurisdiction” although also observing that treatises like the previously cited Restatement are not primary sources of customary international law.

No independent legal research has been conducted on this issue, but it should be noted that the Restatement is a thirty-year-old secondary authority and that the Yousef case is 14 years old, is from another circuit court and thus is only persuasive authority at best and Judge Boyle merely says this case has been cited by Montano.

The complex Yousef case involved three defendant foreigners who appealed from judgments of conviction for multiple violations of U.S. law, including a conspiracy to bomb a Philippines Airline aircraft flying from the Philippines to Japan. The appellate court rejected the defense arguments that the U.S. had no jurisdiction for this charge because U.S. “law provides a separate and complete basis for jurisdiction over [this and other charges] . . . [U.S.] law is not subordinate to customary international law or necessarily subordinate to treaty-based international law and, in fact, may conflict with both . . . [and because] customary international law does provide a substantial basis for jurisdiction by the [U.S.] over each of these counts, although not . . . under the universality principle.”

Indeed, the Second Circuit in Yousef held in 2003 that “customary international law currently does not provide for the prosecution of ‘terrorist’ acts under the universality principle, in part due to the failure of States to achieve anything like consensus on the definition of terrorism.” (Emphasis added.) The court also noted that those offenses supporting universal jurisdiction under customary international law — that is, piracy, war crimes, and crimes against humanity —. . . now have fairly precise definitions and that have achieved universal condemnation.” (Emphases added.)

Such definitions of “war crimes” and “crimes against humanity” are found in Articles 7 and 8 of the Rome Statute of the International Criminal Court, which has jurisdiction over “the most serious crimes of concern to the international community as a whole,” including crimes against humanity” and “war crimes.” Here are the relevant parts of that Statute:

  • One of the “crimes against humanity” is “murder” “when committed as part of a widespread or systematic attack directed against any civilian population” or “a course of conduct involving the multiple commission of [murder] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” Given the circumstances of the Salvadoran Civil War and the actions of the Salvadoran military, circa 1989, these conditions for this type of crime against humanity should be satisfied.
  • One of the “war crimes” is “willful killing” of “persons . . . protected under the provisions of the relevant Geneva Convention.” Here, that is the Fourth Geneva Convention (Geneva Convention Relative to the Protection of Civilian Persons in Time of War), which protects “Persons taking no active part in the hostilities” against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”

Therefore, although not yet subjected to complete legal analysis, a respectable argument for this issue for extradition can and should be made.

U.S. Legal Issues

 Judge Boyle also raised two issues of U.S. law: (1) whether there was a U.S. law that would justify a U.S. criminal charge against Montano for his alleged participation in the killing of the Jesuit priests and (2) whether such a hypothetical U.S. charge would satisfy the U.S. constitutional requirement for “due process of law” under the Fifth Amendment.

I leave these issues to the subsequent briefs of the parties.

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[1] See posts listed in “The Jesuit Priests” section of List of Posts to dwkcommentaries—Topical: EL SALVADOR.

[2] Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D. N.C. Mar. 27, 2017).

Salvadoran Responses to Invalidation of Its Amnesty Law

As reported in a prior post, the Supreme Court of El Salvador in July 2016 invalidated the country’s 1993 Amnesty Law that had barred criminal prosecution of the most serious violations of human rights during their civil war.

In response the Salvadoran government is preparing legislation to implement that decision and replace that Amnesty Law. In addition, there have been recent important developments regarding three of those violations: (1) the 1980 assassination of Archbishop Oscar Romero; (2) the 1981 El Mozote massacre; and (3) the 1987 assassination of human rights advocate Herbert Anaya Sanabria. All of these developments originally were posted in Tim’s El Salvador Blog and are re-posted or incorporated here with permission.[1]

New Legislation

The Salvadoran government is preparing draft legislation to implement the court ruling and replace the amnesty law. According to an article in Salvador’s El Faro newspaper, the Salvadoran government is seeking advice on such a new law from Juanita Goebertus, an expert Colombian lawyer who participated in the peace accords signed by the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) in 2016. [2]

The key issue is what crimes that were committed during the war are not protected from prosecution and those that are so protected.  The ruling of the court only nullified the amnesty law as it applied to “crimes against humanity.”

Tim’s El Salvador Blog suggests the only crimes against humanity and perhaps war crimes are not exempt from prosecution, but I think that is too narrow. An apparent quotation from the Supreme Court decision in that Blog says the non-exemption applies to “the cases contained in the report of the Truth Commission, as well as those others of equal or greater gravity and transcendence.”

The Rome Statute of the International Criminal Court provides in Article 1 that it shall have “jurisdiction over persons for the most serious crimes of international concern,” which are specified (with definitions) in Articles 6, 7 and 8 as “crimes against humanity,” “war crimes,” and “the crime of genocide.”[3]

According to Tim’s Blog, another issue to be addressed in the new legislation is “whether perpetrators of crimes against humanity will face criminal punishment including jail time.” A Salvadoran newspaper “suggests that both ARENA and the FMLN would like legislation in which the possibility of jail time is eliminated.  What is left unclear is what process will exist to judge responsibility for these crimes and what reparations might be available to victims.    Nor is it clear if the victims have had a voice in defining any of this process.”

Romero Assassination

On March 23–the day before the 37th anniversary of the assassination of Archbishop Romero–“human rights lawyers filed a petition with a court in the capital of San Salvador to reopen the case of this assassination.   They are asking the court to proceed judicially to establish the facts and the responsible parties for this horrible crime.” [4]

El Mozote Massacre

Previous posts have discussed the 1981 massacre  near the Salvadoran village of El Mozote and various legal proceedings regarding this atrocity. [5]

“Twenty ex-members of El Salvador’s military, including high-ranking generals, [this March] have been cited to appear in court in San Francisco Gotera, in Morazan department, in connection with the 1981 El Mozote massacre. On March 29 a Salvadoran court held a hearing to notify nine of these men, including former Defense Minister Jose Guillermo Garcia, ex-chief-of staff Rafael Flores, five other former colonels and two others who did not appear in court that they are being investigated for their alleged roles in the El Mozote massacre. Former Defense Minister Garcia had no comments to the court or the press regarding this development. On March 30 an additional nine former military officials were similarly notified. [6]

This is the first case in a court in El Salvador involving El Mozote and the first case to proceed after last year’s nullification of the 1993 Amnesty Law.”

“The cited officers include  general José Guillermo García, ex-minister of defense; general Rafael Flores Lima, ex-chief of the Joint Chiefs of Staff of the Armed Forces; Colonel Jaime Flores Grijalva, ex-commander of the Third Infantry Brigade; General Juan Rafael Bustillo, ex-commander of the Salvadoran Air Force; and other lower ranking officers involved in the events.”

“The crimes alleged include murders, aggravated rape, kidnapping, acts of terrorism and other offenses.”

“The actions of the judge in San Francisco Gotera responds to a petition by the legal team for the victims headed by Tutela Legal ‘María Julia Hernández.’    The human rights lawyers have complained about the slow, passive approach being taken by the Attorney General’s office which has not moved the case forward despite the removal of the Amnesty Law and a judgment of the Inter-American Court for Human Rights requiring the government of El Salvador to investigate and prosecute these crimes against humanity.”[7]

“The December 1981 El Mozote massacre was perhaps the worst atrocity of El Salvador’s twelve year civil war.  All but one of the civilians taking refuge in the small village of El Mozote, more than 800 men, women, children and babies, were brutally killed by the Salvadoran army.  It is a tragedy the world must never forget.”

Assassination of Human Rights Advocate Herbert Anaya Sanabria

“Salvadoran Attorney General Douglas Meléndez announced that his office is reopening the case involving the 1987 assassination of human rights advocate Herbert Anaya Sanabria.According to an Amnesty International Report in 1988, his killing, carried out by men in plain clothes using silencers on their guns, followed repeated harassment and threats directed at Anaya himself and at other independent human rights monitors in El Salvador.” 

“Although a trial convicted an ERP guerrilla member,Jorge Miranda, for the murder, most believe that the assassination was carried out by government forces. Miranda was released from prison because of the now invalidated Amnesty Law, but the Attorney General said that Miranda would need to be tried again and that if any relative or other interested persons had information about other material actors or intellectual authors of the crime, the prosecutors would pursue any leads.”

Conclusion

We will be paying close attention to Tim’s El Salvador Blog to keep us apprised of further developments on these matters.

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[1] Amnesty or restorative justice?, Tim’s El Salvador Blog (Mar. 28, 2017); Oscar Romero–37 years after his assassination, Tim’s El Salvador Blog (Mar. 24, 2017); Court cites high military commanders in El Mozote massacre case, Tim’s El Salvador Blog (Mar. 15, 2017); Salvador Attorney General opens new war crimes case, Tim’s El Salvador Blog (Mar. 22, 2017); Historic first step towards justice at El Mozote, Tim’s El Salvador Blog (Mar. 31, 2017). Congratulations and appreciation for Tim’s faithful publication of his blog for the last 13 years.

[2] Rauda, Presidencia busca una nueva ley que permita a los criminales de guerra evitar la cárcel, El Faro (Mar. 26, 2017).

[3] The Rome Statute also includes in Article 5(1) (d) “the crime of aggression” as within the jurisdiction of the ICC, but it was not defined until the States Parties did so at the Review Conference of June 2010, and its ratification and applicability is a complex subject that does not need to be addressed here since the crime of aggression seems less relevant to instances of civil war like El Salvador’s.

 

[4] There have been numerous posts about Romero and his assassination. See posts listed in the “Oscar Romero” section of List of Posts to dwkcommentaries–Topical: EL SALVADOR.

[5] See posts listed in the “El Mozote Massacre” section of List of Posts to dwkcommentaries–Topical: EL SALVADOR. A recent article describes the aftermath of the massacre. (Maslin, The Salvadoran Town That Can’t Forget, The Nation (Mar. 30, 2017).)

[6] Ramos, El Mozote sienta en el banquillo al general del Ejército más oscuro, El Faro (Mar. 30, 2017).; Rauda, Pedro Chicas resurrects to prosecute those responsible for El Mozote, El Faro (Apr. 1, 2017)(Google translate).

[7] The decision of the Inter-American Court of Human Rights regarding the El Mozote massacre was discussed in this post: The el Mozote Massacre: Inter-American Court of Human Rights Determines El Salvador Violated the American Convention on Human Rights, dwkcommentaries.com (Dec. 16, 2012).

 

 

Amending Spain’s Universal Jurisdiction Statute

Spain currently is in the process of adopting an amendment to its statute regarding universal jurisdiction for one of its courts. This post will examine that forthcoming amendment after looking at the background of that amendment.

Background

Under customary international law and certain treaties, a nation state has universal jurisdiction over certain crimes of international concern regardless of where the crimes were committed or the nationality of the victims or perpetrators. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture. (This was discussed in a prior post.)

Spain implemented this principle in 1985 in its own domestic statutory law by conferring such jurisdiction on its National Court (La Audiencia Nacional) for the following crimes: (a) genocide; (b) terrorism; (c) piracy and hijacking of aircraft; (d) falsification of foreign currency; (e) prostitution and corruption of minors or incompetents; (f) trafficking in illegal, psychotropic, toxic and narcotic drugs; and (g) any other crimes under international treaties or conventions that should be prosecuted in Spain.

In 2009 Spain amended this statute to add these additional crimes for universal jurisdiction: crimes against humanity; illegal trafficking or illegal immigration of persons; and female genital mutilation (FGM). In addition, the amendment specified that these conditions or limitations had to be established for such jurisdiction: the alleged perpetrators were in Spain; or the victims were of Spanish nationality; or there was another connecting link to Spain.

Finally the 2009 amendment specified that for such Spanish jurisdiction to exist, another country or international tribunal had not started a process involving an investigation and successful prosecution of such offenses; if there were such another process, then the Spanish court should suspend or stay its case until the other investigation and prosecution has been concluded. The latter provision is referred to as the subsidiary principle.

The New Amendment

On February 11, 2014, Spain’s Congress of Deputies (Congreso de los Diputados), the lower house of the country’s bicameral legislature (los Cortes Generales), approved another amendment to this statute (Article 23.4 of the 1985 Organic Law of the Judicial Power, as amended).[1] Since the same political party (Party Popular) also controls Spain’s Senate, it is anticipated that the Senate will pass the bill as well. Here are the principal provisions of the amendment:

  • The following specific crimes were added for universal jurisdiction: (i) war crimes (crimes against persons or goods in armed conflict); (ii) torture and crimes against moral integrity; (iii) crimes under the Convention on the Physical Protection of Nuclear Material; (iv) crimes covered by the Council of Europe Convention on the prevention and combatting of violence against women and domestic violence; (v) offenses of corruption between private or international economic transactions; and (vi) crimes of enforced disappearances under the International Convention for Protection of All Persons from Enforced Disappearances.
  • Greater specificity was provided for offenses other than piracy covered by the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its Protocol; offenses other than hijacking of aircraft under the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation and its Supplemental Protocol; crimes against sexual freedom committed on children; and trafficking in human beings.
  • For genocide, crimes against humanity and war crimes, universal jurisdiction exists only if the accused individual is a Spanish citizen or a foreign citizen who is habitually resident in Spain or a foreigner who is found in Spain and whose extradition had been denied by Spanish authorities.
  • For torture and disappearances, universal jurisdiction exists only if the prospective defendant is a Spanish citizen, or the victims were (at the time of the events in question) Spanish citizens and the person accused of the crime was in Spanish territory.
  • Only public prosecutors and victims may initiate criminal proceedings under universal jurisdiction; other private individuals or groups (acusaciones populares) may not do so.
  • Pending cases under the universal jurisdiction provision would be stayed and thereafter dismissed if they could not satisfy these new conditions.

There currently are 12 cases under this jurisdictional provision pending in Spanish courts, and presumably they all will be dismissed under this new amendment. They are the following:

  1. Genocide in Tibet. In 2006 the court commenced an investigation against five former Chinese Communist leaders, including former President Jiang Zemin, for alleged genocide in Tibet. In November 2013, the court issued arrest warrants for these individuals, and in early February 2014, the court rejected the prosecutor’s motion to quash the warrants. As a result, the court on February 10th asked INTERPOL to issue international arrest warrants for the Chinese individuals.
  2. Genocide in Guatemala. In 2003 the court commenced an investigation of eight former senior Guatemalan officials for alleged genocide, terrorism and torture.
  3. Genocide in Sahara. In 2006 a NGO commenced a case against 31 Moroccan military officers for alleged genocide in the Sahara Desert.
  4. Genocide in Rwanda. In 2005 an investigation was commenced against 69 senior Rwandan officials for alleged genocide and murder, and in 2008 arrest warrants were issued for 40 Rwandan soldiers.
  5. Holocaust. In 2008 a case was commenced by Spanish survivors of the Holocaust against four SS guards, and in 2009 international arrest warrants were issued for three of these guards.
  6. Murder of Spanish Diplomat. In 2012 the court commenced an investigation against seven Chilean officials for alleged participation in the 1976 kidnapping and assassination of a Spanish diplomat, Carmelo Soria. Last year a Chilean court rejected Spain’s request for the arrest of the officials.
  7. Persecution of Falun Gong. In 2006 the court started an investigation of alleged persecution of Falun Gong practitioners by the Chinese government between 1999 and 2002.
  8. Israeli Attack on “Freedom Flotilla” to Gaza. In 2010 the court started an investigation of Israeli officials for alleged war crimes and crimes against humanity for an armed assault on ships with materials for Palestinians in Gaza.
  9. Murder of Spanish Journalist. In 2003 the court started an investigation of alleged U.S. military personnel in the 2003 death of a Spanish journalist, Jose Couso, in Iraq.
  10. Torture of Detainees on CIA Flights. In 2006 the court started an investigation of possible violations by CIA or other U.S. personnel with respect to detainees on CIA flights stopping at an airport in Spanish territory.
  11. Iraqi attack on Iranian refugee camp. In 2009 the court started to investigate an alleged Iraqi military attack on an Iranian refugee camp in 2008.
  12. Murder of the Jesuit priests. In 1999 the court commenced to investigate the 1989 murders of six Jesuit priests in El Salvador, and in 2011 the court ordered the arrest of 20 former Salvadoran military officials.

The immediate precipitating causes for the Spanish government’s seeking and obtaining approval of this amendment at this time are widely seen as the Spanish court’s issuance of arrest warrants, and seeking INTERPOL arrest warrants, for high officials of the Chinese Communist Party, including a former president of the country, for alleged genocide in Tibet; China’s vehement protests of these developments; and the Spanish government’s desire for a friendly economic relationship with China.

Indeed, on February 11th, China’s Foreign Ministry said, “China is extremely dissatisfied with and resolutely opposed to the wrong actions of the relevant Spanish [court] taken while ignoring China’s solemn position. Whether or not this issue can be appropriately dealt with is related to the healthy development of ties. We hope that the Spanish government can distinguish right from wrong.”

Human rights groups opposed the current proposed amendment. Amnesty International, Human Rights Watch, the Center for Justice and Accountability and 14 others argue that under multilateral treaties ratified by Spain it has a legal obligation to prosecute any suspected offender of those treaties—regardless of where the crime was committed,[2] who is found in Spain. Moreover, these groups say, the International Court of Justice explained in the case Belgium v. Senegal, this duty to prosecute arises “irrespective of the existence of a prior request for the extradition of the suspect” and requires States to adopt legislation giving its courts the necessary jurisdiction.

Conclusion

Although I regard myself as an human rights advocate and have great respect for Amnesty International and the other NGOs that have opposed the amendment, I dissent from their objections.

In my opinion, the amendment is a reaffirmation of Spain’s implementation of such jurisdiction. Indeed, as noted above, but not acknowledged in the NGOs’ objections, the amendment expands the crimes that are subject to universal jurisdiction and provides greater specificity for some of the crimes previously covered by the statute. This is important for future use of the statute and for due process notice to individuals who may be charged with such crimes in the future.

The main objection appears to be the amendment’s requirement for universal jurisdiction in some instances for an accused foreigner to be present (habitually resident or found) in Spain. This is akin to the U.S. constitutional due process requirement for a defendant to be present in the jurisdiction in order for personal jurisdiction in civil cases to exist, and I believe it is a reasonable requirement for criminal cases in Spain under its universal jurisdiction provisions.

Moreover, in many, if not all, of the previously mentioned 12 pending cases in Spain, the defendants have never been in Spain, and this has lead to the Spanish court’s unsuccessful efforts to enforce its own arrest warrants or the INTERPOL international arrest warrants. As a result, actual criminal prosecutions in these 12 cases have not even been commenced.

I know this is true in the case against 20 former Salvadoran military officers for their alleged involvement in the horrendous murders of the six Jesuit priests and their housekeeper and her daughter in El Salvador in November 1989. I think it is outrageous that these 20 individuals so far have not faced any criminal accountability or punishment for their alleged complicity in this awful crime and thus have de facto immunity or impunity for their actions, and I had hoped that the criminal case in Spain under its universal jurisdiction statute would bring them to justice. But unfortunately that has not happened. (Other posts on Spain’s case regarding the Jesuits’ murders, 6/15/11 and 8/26/11.)

Objection also has been made to the amendment’s imposing a requirement for universal jurisdiction in some instances for Spain to have denied a request for extradition. But at least as I read the English translation of the amendment, this requirement exists only for those foreigners who are temporarily in Spain and does not apply to foreigners who habitually reside in the country. For the passers-by this seems like a due process concern. How would you like while on holiday for one week on the Costa Brava to be charged with a serious crime  by a Spanish court for something you allegedly did in the U.S. 10 years ago?

Furthermore, the amendment’s limitations also appear to be reasonable to make efficient use of Spanish judicial resources.

Finally, the Spanish government, in my opinion, has a legitimate interest in its efforts to have friendly economic relations with China as Spain continues to struggle to emerge from its economic difficulties, including high unemployment. Pursing justice for horrible crimes committed elsewhere is a laudable purpose and goal, but it is not the only purpose and goal of the Spanish government or any country’s government.

As an U.S. scholar stated, “With unemployment at 25 percent, Spaniards would be right to wonder why their officials were using taxpayer resources for other peoples’ problems and simultaneously risking even more Iberian jobs.”


[1] This summary of Spain’s new amendment by a retired U.S. lawyer who is not an expert on Spanish law is based upon the English translation of the new law (Proposed Law on Universal Justice to amend the Organic Law 6/1985 of 1 July on the Judiciary on universal justice, No. 122/000136) and of Spain’s Congress’ press release about the bill and the following English-language sources and translations (from Spanish): Perez, High court to follow through on arrest warrants against top Chinese officials, El Pais in English (Feb. 7, 2014); Amnesty Int’l and 15 other Human Rights Organizations, Spanish Lawmakers Should Reject Proposal Aimed at Closing the Door on Justice for the Most Serious Crimes (Feb. 10, 2014);   Yardley, Spain Seeks to Curb Law Allowing Judges to Pursue Cases Globally, N.Y. Times (Feb. 10, 2014); Moffett, Spain’s Lower House Approves Law to Limit Judges’ Reach, W.S.J. (Feb. 11, 2014);  The twelve causes of ‘universal justice,’ El Mundo (Feb. 11, 2014); Molto, Tibet to universal justice: Chronicle of an announced impunity, El Pais (Feb.11, 2014); Kassam, Spain moves to curb legal convention allowing trials of foreign rights abuses, Guardian (Feb. 11, 2014).

[2] These treaties include the Geneva Conventions; the U.N. Convention against Torture; the International Convention for the Protection of All Persons from Enforced Disappearances; the Hague Convention for the Suppression of Unlawful Seizure of Aircraft; and the Convention on the Physical Protection of Nuclear Material.

Should the International Criminal Court Indict George W. Bush and Tony Blair over Iraq?

Desmond Tutu

On September 2nd Desmond Tutu, a Nobel Peace Prize Laureate and the retired South African Anglican Archbishop, said, “The immorality of the United States and Great Britain’s decision to invade Iraq in 2003, premised on the lie that Iraq possessed weapons of mass destruction, has destabilized [sic] and polarised [sic] the world to a greater extent than any other conflict in history.” Therefore, Tutu continued, “In a consistent world, those responsible for this suffering and loss of life [George W. Bush and Tony Blair] should be treading the same path as some of their African and Asian peers who have been made to answer for their actions [at the International Criminal Court] in the Hague.”

These remarks in London’s Observer newspaper followed Tutu’s withdrawal last week as a speaker at a conference in South Africa because Tony Blair was also to be a conference speaker.

Tony Blair

Tony Blair immediately responded to Tutu’s comments. Blair said, Tutu had repeated “the old canard that we lied about the intelligence [on Iraq] is completely wrong as every single independent analysis of the evidence has shown.” In addition, according to Blair, “to say [as Tutu had] that the fact that Saddam massacred hundreds of thousands of his citizens is irrelevant to the morality of removing him is bizarre.” Finally Blair claimed that “despite the problems, Iraq today has an economy three times or more in size with child mortality rate cut by a third of what it was.”

However morally appropriate Tutu was on his criticism of the decision to start the Iraq war, his call for ICC prosecution of Bush and Blair is not legally well founded.

That was the legal conclusion on February 9, 2006, by the ICC’s Office of the Prosecutor in response to many communications expressing concern regarding the launching of military operations and the resulting human loss. This conclusion was documented in a detailed memorandum by the ICC Prosecutor that set forth the following reasons:

  • The ICC did not have jurisdiction over any actions by Iraqi or U.S. citizens because Iraq and the U.S. were not States Parties to the Court’s Rome Statute.
  • Although the Court had jurisdiction over the crime of “aggression” under the Statute’s Article 5, that crime had not yet been defined and thus could not be a basis for any charges.[1]
  • Although there was information indicating war crimes of intentional killing and inhuman treatment had been committed, the information did not suggest that they were “part of a plan or policy or as part of a large-scale commission of such crimes” as required by Article 8 of the Statute.
  • There was no information that the Coalition forces had an  “intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”, as required in the Statute’s definition of the crime of genocide (Article 6).
  • There was no information of “a widespread or systematic attack directed against any civilian population” as required in the Statute’s definition of crimes against humanity (Article 7).

Therefore, the Office of the Prosecutor stated the statutory requirements for initiating a formal investigation of the situation in Iraq had not been satisfied.[2]


[1] As discussed in a prior post, a definition of the crime of aggression was agreed to at the Court’s June 2010 Kampala Review Conference, but its actual use by the Court will not happen until after January 1, 2017 and only if there is a two-thirds vote of approval of the amendment by the Court’s Assembly of States Parties and ratification of the amendment by at least 30 States Parties.

[2] There are many posts about the ICC on this blog. To find them, just click on “International Criminal Court” in the tag cloud to the right of this post.

Mali Refers the Current Situation in Its Country to the International Criminal Court

 Since January of this year Mali in western Africa has been roiled by violent unrest. Last year’s downfall of Colonel Murammar Quaddafi in neighboring Libya has sent a large quantity of Libyan weapons into  Mali, bolstering a longstanding rebel movement by the nomadic Tuareg in the country’s vast northern desert and delivering many defeats to Malian forces.

In March of this year the Tuareg rebels made some of their most significant gains yet, seizing much of northern Mali, including the historic city of Timbuktu. The rebels’ Islamist faction, Ansar Dine (defenders of the faith), preaches a strict form of Islam that advocates a total ban on alcohol, the flogging of adulterers and the imposition of Shariah or Islamic law, on a part of Mali that has traditionally practiced religious tolerance. This Summer Ansar Dine embarked on a campaign of destroying Islamic shrines that are seen by them as Timbuktu’s eminence as a center of broad-minded Islamic teaching for centuries.

Timbuktu mosque
Grand Mosque,                Djenne, Mali

In April, the rebels declared the independence of the new state of Azawad. This has caused fear that Islamic militants and separatists could turn the remote and poor reaches of northern Mali into a haven for the regional affiliate of Al Qaeda.

Now thousands of Malians are fleeing this turmoil to the west to Mauritania. Already a refugee camp of 92,000 is growing near the border.

On July 18th the Government of Mali led by the Minister of Justice hand delivered a letter in The Hague to the Prosecutor of the International Criminal Court. The letter states that the Government of Mali, as a State Party to the ICC, refers “the situation in Mali since January 2012” to the Prosecutor’s Office and requests an investigation to determine whether one or more persons should be charged for crimes within the Court’s jurisdiction (genocide, crimes against humanity and war crimes).

 

The Mali letter alleged “grave and large-scale violations of human rights and of international humanitarian law, committed notably in the north of the country.” It further stated there were “summary executions of soldiers, rape of women and young girls, massacres of civilians and the use of child soldiers and pillage” as well as destruction of hospitals, courts and schools and attacks on churches, tombs and mosques.

The Government of Mali submited that the Malian courts are unable to prosecute or try the perpetrators. The Malian delegation also provided documentation in support of the referral.

The Prosecutor’s Office has been following the situation in Mali very closely since violence erupted there this January. On April 24th, as instances of killings, abductions, rapes and conscription of children were reported by several sources, the Prosecutor reminded all actors of ICC jurisdiction over Rome Statute crimes committed on the territory of Mali or by Malian nationals. On July 1st, the Prosecutor stressed that the deliberate destruction of the shrines of Muslim saints in the city of Timbuktu may constitute a war crime under Article 8 of the Rome Statute.

The Prosecutor, upon receipt of the letter from the Government, announced that the Office

Immediately would proceed with a preliminary examination of the situation in order to assess whether the Rome Statute criteria stipulated under Article 53.1 for opening an investigation are fulfilled.

Is the International Criminal Court Flawed?

A July 8th New York Times headline proclaims, “Arab Uprisings Point Up Flaw in Global Court.” It erroneously suggests that the people operating the International Criminal Court are stupid or cowardly or that the diplomats who in 1998 drafted the ICC’s governing treaty, the ICC’s Rome Statute, were similarly stupid or cowardly.

The article starts with the facts that the ICC has not initiated an investigation of human rights abuses in Yemen and Syria. That is lamentable, but it is not due to a flaw in the operations of the ICC or the Rome Statute.

It is due instead to the limitations on the Court’s jurisdiction that were intentionally established in the drafting of the Rome Statute because of opposition of states like the U.S. that did not want the Court commencing investigations or criminal prosecutions against their citizens if the state did not ratify that Statute.

That Statute’s Article 12 provides, in part, that the Court has jurisdiction if certain crimes (genocide, crimes against humanity or war crimes) are committed on the territory of a state that is a party to the Rome Statute or by nationals of such a state. Neither Yemen nor Syria is such a party, as is true for all other states in the Mideast except Jordan. Thus, the Court does not have jurisdiction of such an investigation or prosecution under Article 12.

The Rome Statute’s Article 13(b) also provides jurisdiction for the Court if the U.N. Security Council, acting under Chapter VII of the U.N. Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression), refers a situation of suspected crimes of that nature to the ICC even if the state where the conduct occurred or whose nationals are involved had not ratified the Rome Statute. In fact, as the New York Times article points out, the Security Council has twice done so: Sudan (Darfur) and Libya.

However, as most people know, the U.N. Charter that was drafted in 1945 at the end of World War II grants in Article 27(3)  a veto on any action by the Council to each of its five permanent members: the U.S., the United Kingdom, France, the Union of Soviet Socialist Republics [now Russia] and the Republic of China. The failure of the ICC to undertake any investigation of the Yemen situation is due to a threatened veto by the U.S. of such a referral.

With respect to Syria, the U.S. in June 2011 reportedly was seeking Russian and Chinese support for a Council referral of the situation to the Court, but that was obviously unsuccessful because no such proposal was actually advanced in the Council. In November 2011 four U.S. Senators (Dick Durbin, Benjamin Cardin, Robert Menendez and Barbara Boxer) sent a letter to the U.S. Ambassador to the U.N. (Susan Rice) asking for such a Security Council referral. They said, “The people of Syria deserve to know that the people of the United States understand their plight, stand behind them, and will work to bring justice to the country.” Security Council referral of Syria to the ICC also has been endorsed by the New York Times.

The next month (December 2011) the U.N. High Commissioner for Human Rights urged the Security Council to make such a referral. But nothing happened, again because of threatened vetoes by Russia and China.

If there is any “flaw” in this structure with respect to Yemen and Syria it is the veto right of the five permanent members of the Security Council. Although many, if not most, of the U.N. members that are not permanent Council members dislike the superior status and veto rights of the permanent Council members and voice various suggestions for reform of the Security Council, expert observers of the U.N. do not think that is at all likely in the near future.

In the meantime, 121 of the 192 U.N. members are now parties to the Rome Statute, and the Court’s governing body (its Assembly of States Parties) is working towards its goal of universal ratification of the Rome Statute. If and when that happened, the Court could initiate investigations and prosecutions with respect to all such parties without Security Council action.

Over the last 60-plus years the peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. The creation and operation of the International Criminal Court and other so-called ad hoc international criminal tribunals are important pieces of this effort. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further development, I am confident, will occur.

Reactions to Charles Taylor’s Conviction

Special Court for Sierra Leone Logo

As reported in a prior post, on April 26th the Special Court for Sierra Leone convicted Charles Taylor, the former President of neighboring Liberia of 11 counts of crimes against humanity and war crimes. The hearing on his sentencing has been scheduled for May 16th with the sentence to be pronounced on May 30th. The deadline for any appeal is 14 days after the sentencing judgment.

Before we look at the reactions to that conviction, we should be aware of the gruesome details of what happened in Sierra Leone according to witnesses at Taylor’s trial. Here are only two examples. One male witness, “Then I put this other hand. Then he [a Sierra Leone rebel] chopped it, but when he chopped it it was not severed initially. He chopped it twice, and it hit here and some bones were broken in it. Then the third time it was severed.” Another male witness, “Well, they [the rebels] used to treat them [civilians] badly. They used to rape them. They used to kill them. Sometimes they even ate them.” A video with photos of some of the Sierra Leone victims should be watched as well as current photos from the country.

Another aspect of the trial needs highlighting. One of the challenges facing the prosecution was how to link Mr. Taylor in Liberia to the crimes committed in Sierra Leone. There was no paper trail showing orders from Taylor. Nor was there any evidence of his ever going to Sierra Leone. He was not at the scene of the crimes in that country, and the Liberian army was not involved. Instead the link was proven by radio and telephone communications from Taylor to the rebels in Sierra Leone, by shipments of arms and ammunition to the rebels from Taylor’s forces and by bank records showing transfers of funds to Taylor’s accounts from Sierra Leone.

The Special Court’s chief prosecutor, Brenda J. Hollis, who is a U.S. lawyer, said the conviction was a triumph for the idea that political leaders should be held accountable  for their deeds in “the new reality of an international justice system.”

The U.N. High Commissioner for Human Rights stated that the conviction “marked a major milestone in the development of international justice. . . .  A former President, who once wielded immense influence in a neighbouring [sic] country where tens of thousands of people were killed, mutilated, raped, robbed and repeatedly displaced for years on end, has been arrested, tried in a fair and thorough international procedure, and has now been convicted of very serious crimes.” Such a result, she said, was “a stark warning to other Heads of State who are committing similar crimes, or contemplating doing so.”

The U.S. Department of State issued an official statement welcoming the conviction as “an important step toward delivering justice and accountability for victims, restoring peace and stability in the country and the region, and completing the Special Court for Sierra Leone’s mandate to prosecute those persons who bear the greatest responsibility for the atrocities committed in Sierra LeoneThe Taylor prosecution at the Special Court delivers a strong message to all perpetrators of atrocities, including those in the highest positions of power, that they will be held accountable.” The U.S. statement also noted that the U.S. “has been a strong supporter and the leading donor of the Special Court  . . . since its inception. The successful completion of the Special Court’s work remains a top U.S. Government priority.”

Amnesty International (AI) asserted that the conviction sends “a clear message to leaders the world over that no-one is immune from justice.”  However, AI lamented that because of the limited jurisdiction and funding of the Special Court, “Thousands of persons suspected of criminal responsibility for incidences of unlawful killings, rape and sexual violence, mutilations and the use of children in Sierra Leone’s armed conflict have never been investigated, much less prosecuted.” In addition, AI emphasized that “only a limited number of Sierra Leone’s thousands of victims who bear the terrible scars of the conflict have received reparations, despite the [provisions for reparations in the Sierra Leone] Peace Accord and the clear recommendations [for reparations] by [Sierra Leone’s] Truth and Reconciliation Commission.” AI also reiterated its call for the repeal of the amnesty provision in the Peace Accord and [for Sierra Leone’s] enactment of legislation defining crimes against humanity and war crimes as crimes under Sierra Leone law.”

Human Rights Watch had a similar reaction. It said the conviction “sends a message to those in power that they can be held to account for grave crimes.”

A New York Times editorial said the conviction “is a historic victory for justice and accountability: the first time a former head of state has been convicted by an international court since the Nuremberg trials after World War II. Mr. Taylor . . . richly deserves this distinction.” The editorial also reminded us that “other leaders . . .  deserve the same fate” from the International Criminal Court in its prosecutions of the Ivory Coast’s brutal former president, Laurent Gbagbo, and Sudan’s current president, Omar Hassan al-Bashir.

The Guardian newspaper from London commented that the conviction was “an important step in what can only be described as the faltering path of international justice.” It noted that even though there were dysfunctional justice systems in Russia and China, it is “a safe bet that no Russian [or Chinese] leader will ever appear before an international court of justice for war crimes . . . . The same is true of . . . US or British generals for war crimes committed in Iraq and Afghanistan. Might, or a seat on the UN security council, still appears to be right. If the arm of international law is long, it is also selective. . . .  If impunity is to end, jurisdiction has to be universal.”

Taylor’s conviction was for crimes against humanity and war crimes in Sierra Leone. But the conviction reminded Liberians of the horrible similar crimes committed in their country by Taylor and his forces.

Charles Taylor (Rebel leader)
Charles Taylor, President of Liberia

An expert on Liberia stated that in “Liberia, Mr. Taylor fought a brutal campaign against West African peacekeepers and other armed factions. As many as 250,000 Liberians out of a prewar population of just over [3,000,000] lost their lives, while more than [1,000,000] others became refugees — crimes for which no one has yet been held accountable. An internationally brokered peace deal in 1997 led to the travesty of a frightened population’s electing Mr. Taylor president for fear of what would happen if he did not get his way. He was driven from power only in 2003.” Moreover, “many of his closest former associates remain at large and active in public life . . . . Mr. Taylor’s ex-wife, Jewel Howard Taylor, who filed for divorce after his fall from power in part to protect her assets from international sanctions, is a member of the Liberian Senate. So is Prince Y. Johnson, a onetime Taylor ally who literally butchered President Samuel K. Doe at the start of the civil war and was so certain of his impunity that he had the entire episode videotaped for posterity. Far from becoming a pariah, Mr. Johnson played kingmaker in Liberia’s presidential election last year, delivering the bloc of votes that assured President Ellen Johnson Sirleaf a second term.”

The previously mentioned New York Times editorial said that Taylor now “must also be held accountable for his role in Liberia’s 14-year civil war. Liberia needs to enact the legislation to bring him, and the other murderous warlords from that era, to trial either in Liberian or international courts.”

Amnesty International and Human Rights Watch also remembered that Taylor and his forces had committed grave crimes in his native Liberia, but had not been subject to any criminal prosecutions for those crimes. Said AI, “during “the 14-year Liberian civil war that raged while Taylor was first the leader of one of the numerous armed opposition groups and later the President, all parties to the conflict committed war crimes and crimes against humanity, including murders along ethnic lines, as well as torture, rapes and other crimes of sexual violence, abductions, and recruitment and use child soldiers.” After the end of the civil war, AI said the Liberian Truth and Reconciliation commission had recommended “that a criminal tribunal be established to prosecute people identified as responsible for crimes under international law [but that it] is yet to be implemented, as are most TRC recommendations on legal and other institutional reforms, accountability, and reparations.  The lack of justice for the victims of the Liberian conflict is shocking. The government of Liberia must end the reign of impunity by enacting the necessary legislation and acting on its duty to investigate and prosecute alleged perpetrators.”

Finally, two African observers commented that justice having “had to come from international courts does not reflect well on . . .  Liberia in particular. The process exposes the failure by Liberians to provide themselves with a legal and judiciary system capable of effectively administering justice.” More generally “the verdict and the process should be a wakeup call to Africans. The successful conviction for such crimes is a glaring example of the failure of Africans to govern themselves effectively. . . . Africans must focus on building strong institutions to deal with human rights violations ourselves . . . .” On the other hand, the conviction “informs future Liberian, and indeed African, dictators and tyrants that they cannot escape justice by hedging their bets on a dysfunctional domestic legal system. Where national systems are incapable of adequately and effectively prosecuting leaders who engage in wanton violations of human rights, citizens can look to the international criminal court for justice.”