(March 10, 2020) US Special Inspector General for Afghanistan Reconstruction (SIGAR) John Sopko discusses lessons learned from the US experience in the reconstruction of Afghanistan.
Jean-Pierre Bemba’s Request for Compensation for Damages from the International Criminal Court
(Re-published from Jurist | June 9, 2019) Jean-Pierre Bemba Gombo (Bemba) is the leader of the Movement for the Liberation of Congo (MLC) and was the commander-in-chief of its military forces during the Central African Bush War from 2003-2004, during which the MLC was accused of committing war crimes, as well as, crimes against humanity.
Bemba was arrested on charges of war crimes and crimes against humanity for his role as the leader of the MLC near Brussels in May 2008 and was handed over to the International Criminal Court (ICC) on July 3, 2008. Bemba was held by the ICC for over two years before his trial began in November 2010, throughout the duration of his trial which lasted until 2014, and still after the conclusion of his trial, until his convictions on March 21, 2016.
The ICC sentenced Bemba to 18 years detention for war crimes and crimes against humanity convictions, plus an additional year and a €290,000 fine for witness tampering.
Bemba appealed his convictions in 2016, citing procedural and legal errors in the lower court judge’s ruling, which Bemba’s counsel said should have resulted in a mistrial. The ICC chamber to which Bemba appealed found on June 8, 2018 that the trial chamber had ignored significant testimonial evidence proving that Bemba had a limited ability to investigate and punish war crimes in the Central African Republic during and after the violence in 2003 and 2004. This conclusion lead to Bemba’s acquittal.
Bemba submitted a request for compensation to the ICC on March 8, 2019. The ICC Prosecutor and Registrar asked the judges to dismiss this claim, but the Pre-Trial Chamber II judges presiding over the claim denied this request.
Bemba’s claim totaled €68.8 million, including: €12 million for the period of his alleged unlawful incarceration, €10 million in aggravated damages, €4.2 million in legal fees, with the remaining €42.4 million being for property damage.
Bemba’s request for property damage compensation stems from those losses consequent to Bemba’s arrest and detention as well as those losses caused by the ICC’s mistakes in managing Bemba’s frozen assets, as the assets seized by the ICC upon Bemba’s conviction were allowed to rot.
The provisions of the law are that Article 85 of the ICC’s Rome Statute governs compensation claims by persons who have been arrested pursuant to the ICC’s jurisdiction or convicted by the ICC. The governing clause provides two primary bases for bringing claims for compensation: the first is found in Article 85(1) while the second is laid out in Article 85(3). Article 85(1) of the Rome Statute states that “[a]nyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” Article 85(3) is vaguer and states that “[i]n exceptional circumstances, where the court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation . . . according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason.”
Claims for compensation must follow the ICC’s Rules of Evidence and Procedure, specifically Rule 173(2), which requires that a request for compensation be submitted to the court no later than six months from the date the person making the request was notified of the decision of the court concerning unlawful arrest or detention; reversal of a conviction; or existence of a grave and manifest miscarriage of justice.
Any party seeking compensation on such grounds must submit a written request containing the grounds for and the amount of compensation being sought to the ICC’s Presidency. The ICC then designates a three-judge chamber to consider the request. Rule 174 of the Rules of Procedure and Evidence provides that judges handling such requests may hold a hearing or determine the matter based on the request along with any written observations by the prosecutor and the party who filed the request.
In cases in which damages are awarded, judges shall take into consideration “the consequences of the grave and manifest miscarriage of justice on the personal, family, and social professional situation of the claimant.” However, it has been acknowledged that there is no exact formula for calculating such damages.
The ICC does not have precedent in awarding damages to those seeking compensation under the court’s jurisdiction, and there does not seem to be a set test to determine whether a party seeking compensation from the ICC will receive such damages – at this point, it is purely discretionary. However, it does seem as if the ICC tends to look to whether the claim for damages is viable under Article 85(1) or 85(3) of the Rome Statute and proper under Rule 173(2) before considering the amount of compensation requested …
David M. Crane is a Syracuse University College of Law Distinguished Scholar in Residence.
INSCT Video: Elections, Violence, and Apathy: Crisis in the Congo, with Jason Stearns
Jason Stearns is Director of the Congo Research Group at New York University and author of Dancing in the Glory of Monsters: The Collapse of the Congo and the Great War of Africa. He obtained his Ph.D. from Yale University and has served in various roles for Congolese and international NGOs and the United Nations.
This talk was part of the David F. Everett Postconflict Reconstruction Speaker Series.
Co-sponsors: Institute for National Security and Counterterrorism and Maxwell African Scholars Union
Yemen: A Crime Against Us All
In a bombing, the dust settles slowly over the strike zone. What emerges are grey images, living beings neutralized to monochrome. Bleeding from the ears, deaf, and dumb from the concussions the survivors walk about in a haze. These zombies are the first things you see staggering down the street away from the rubble behind them, rubble that is the tomb of loved ones, neighbors, and friends.
There is no militarily necessary reason for the destruction, the strike carried out by one of the combatants who knew or should have known about the laws of armed conflict. The rules do not matter in most conflicts of the 21st century. Welcome to the dirty little wars that nip at the heels of civilization, a civilization grown weary of it all and who look the other way. It is just too hard to marshal enough political will to do something.
A powerless United Nations can do nothing other than to help ease the pain of air strikes by caring for the wounded and the terrified refugees. The once proud mandate of restoring international peace and security has changed to maintaining at best that peace and security.
The three nations that could restore that prominence, the United States, China, and Russia are its biggest challenges and all three could certainly live without the paradigm of peace set forth in 1945. All three of those nations over the past years are also the biggest human rights abusers led by strong men.
International Law has evolved over centuries through customary practice and the consent of nations to bind themselves to certain norms. Indeed the day-to-day actions in commerce, trade, and finance all hinge upon these norms. Over time, other norms that declare that human beings have rights to be free from want, fear, and to speak their minds and worship freely are now enforceable and carry an accounting if violated.
From all this just twenty-five years ago, modern international criminal law began. For a decade or so, the rule of law prevailed regarding holding those who commit war crimes and crimes against humanity accountable. Yet we have slipped down a slippery slope. That political will is waning and the use of the law to govern international relations regarding humanity challenged.
In this kaleidoscopic void, dirty little wars flourish like weeds in an abandoned lot. Yemen is one of those weeds thriving in the dusty haze of airstrikes.
The likes of the Yemeni conflict exists but for this condition and circumstance. A surrogate conflict backed by cynical nations vying for power and influence in the greater region that is the Middle East, the possibility of a peaceful resolution hinges on the rule of law. It is not going to happen …
David M. Crane Testifies About Postconflict Justice Options for Sri Lanka
INSCT Faculty Member David M. Crane testified in front of the US House Committee on Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations on June 19, 2018. The hearing, chaired by Rep. Christopher H. Smith (R-NJ), investigated postconflict justice options and human rights issues related to the long Sri Lankan Civil War, which lasted from 1983 to 2009.
Joining Crane as witnesses were J.S. Tissainayagam, journalist and human rights advocate;
Michael Jerryson, Ph.D., Associate Professor of Religious Studies, Youngstown State University; and John Sifton, Asia Advocacy Director, Human Rights Watch.
In his statement, Crane told the committee that, “I approach this issue as a neutral, someone who stands for the rule of law, particularly on the battlefield and for the protection of noncombatants. We live in an age of extremes. Dirty little wars arise across the globe. Parties to the conflict pay little heed to the laws of armed conflict. Many of these largely non-international armed conflicts see civilian casualties mount, most of
them women and children. The conflict in Sri Lanka was one such dirty little war, which saw the death and destruction of tens of thousands of human beings on both sides.”
Crane was a member of a panel of experts advising the Commission of Missing Persons set up by the Sri Lankan government in 2014. “I spent days walking the battlefields of the conflict in Sri Lanka, particularly of the final campaign in the Winter of 2009.”
Crane enumerated several humanitarian and war crimes issues that arose from the conflict and that have yet to be properly reconciled. These include violations of international humanitarian law committed by all sides, the intentional targeting of civilians in a campaign of terror to seek a military and political conclusion, and a brutal final campaign in the winter of 2009 that was exacerbated by an increasingly desperate Liberation Tigers of Tamil Eelam army (the LTTE, or “Tamil Tigers”).
Noted Chairman Smith, “Although the civil war ended almost 10 years ago, important work remains to make sure basic human rights are being respected in Sri Lanka. The resurgence of Buddhist Sinhalese nationalism poses a particular challenge to ethnic reconciliation. It is imperative for Congress to exercise leadership on this issue and ensure that a country as strategically located as Sri Lanka doesn’t collapse again.”
Corri Zoli Offers Thoughts on Human Rights Training to US GAO
Corri Zoli, Director of Research for the Institute for National Security and Counterterrorism, discussed human rights and international humanitarian law (IHL) training with the US Government Accountability Office (GAO) on April 19, 2018.
Zoli was invited to a teleconference session by recent graduate James I. McCully L’17, G’17, now an Analyst in International Affairs and Trade at GAO. A joint J.D./M.P.A. student, while at Syracuse McCully was a research assistant to professors Robert Ashford and David Driesen and Lead Articles Editor for the Journal of International Law and Commerce.
Explained McCully, the GAO is in the process of responding to a mandate in the 2018 National Defense Authorization Act to review human rights and IHL training provided by the departments of State and Defense to the security forces of foreign nations.
Specifically, McCully’s team asked Zoli, an expert in international law, about her observations and views on human rights and IHL training being provided to foreign security forces; her thoughts about the Leahy Laws, which prohibit the US from providing military assistance to foreign security forces that violate human rights; and what assessments, monitoring, and evaluation are most effective when reviewing and auditing this type of training.
David M. Crane Discusses International Law Career at Robert H. Jackson Center
Successor to Robert H. Jackson Speaks at Jackson Center
(The Post-Journal | April 3, 2018) Inside the Robert H. Jackson Center on Monday sat David Crane, the first American chief prosecutor in an international war crimes tribunal since Robert H. Jackson, himself, during the Nuremberg Trial. Crane, former chief prosecutor of the Special Court for Sierra Leone, indicted and later convicted Charles Taylor, president of Liberia, marking the first time a head of state was held accountable for war crimes.
“No one is above the law,” Crane said regarding the legacy of the Sierra Leone tribunal.
Crane’s mandate as chief prosecutor was to prosecute those who bore the greatest responsibility for war crimes and crimes against humanity that were committed during the decade-long Sierra Leone Civil War.
Crane also recently released a book titled “The Founders: Four Pioneering Individuals Who Launched The First Modern-Era International Criminal Tribunals.” The book, written primarily by Crane, features first-hand accounts of the creation of four separate tribunals that brought justice to places such as Rwanda, Cambodia, Yugoslavia and Sierra Leone.
Greg Peterson, director of the Robert H. Jackson Center, conducted the interview and noted that Crane created a lot of precedents regarding international war crime tribunals. Peterson described Crane’s new book, “The Founders,” as a detailed history of the “four foremost prosecutors since Jackson.”
The four prosecutors included in the book include Crane, Richard Goldstone, Robert Peit and Luis Moreno-Ocampo.
“He is in a high echelon of prosecutors,” Peterson said of Crane. “We’re thrilled that he’s here.”
Crane recently announced he would be retiring from his alma matter the Syracuse University College of Law where he taught as a professor of practice since 2006. While there, he taught international law, international humanitarian law, military law and national security law.
Prior to the public interview, a four minute video was played that showed segments from Taylor’s indictment.
“The path will be strewn with the bones of the dead, the moans of the mutilated, the cries of agony of the tortured echoing down to the valley of death,” Crane began his opening statement during the tribunal.
Crane said during the interview that he was personally attacked by other heads of state in Africa because of the indictment. After being indicted, Taylor was later sentenced to 50 years of imprisonment …
Making the Unthinkable Understandable: David M. Crane, Ken Harper Create Media & Atrocities Course
Uncovering and communicating the truths about human conflict, human suffering, and human rights violations is a complicated but vitally important task that often falls to those who write the “first rough draft of history”—that is, journalists operating on the front lines of conflict zones or under cover.
Training communicators to make sense of atrocity and humanitarian disaster was the motivation behind Media & Atrocities, an interdisciplinary course offered for the first time this semester at Syracuse University. The course was co-taught by David Crane, Professor of Practice at the Syracuse University College of Law and member of the faculty of the Institute for National Security and Counterterrorism, and Ken Harper, Associate Professor of Multimedia Photography and Design at the Newhouse School and director of the Newhouse Center for Global Engagement.
The course examines the critical roles that law, policy, and communications play in ensuring truth-telling and securing justice for victims of atrocity, often by providing international law organizations with the raw information they require to bring humanitarian law violators to justice. Harper says he and Crane believe it’s the first university course of its kind.
“These students will become young professionals who are trained to seek and present information on atrocities, genocide, disaster … basically, making the unthinkable understandable,” says Harper.
Among the required readings were “A Problem from Hell” by Samantha Power and “A Long Way Gone” by Ishmael Beah. Several non-fiction films were also recommended, including “Restrepo: Injured Boy” and “Jim: The James Foley Story,” as well as fictional films such as “Blood Diamond,” “Bridge on the River Kwai,” and “Judgement at Nuremberg.”
Special guests—including Ploughshares Fund president Joseph Cirincione, CNN senior UN correspondent Richard Roth, and Physicians for Human Rights researcher Christine Mehta ’11—participated in class discussions via Skype.
Course content was constantly shifting, Harper says, “adapting to the reality the world presents.”
Students in the course included both undergraduate and graduate students from a variety of programs across campus, such as international relations, broadcast and digital journalism, public affairs, photography, and law. They began the semester by examining the meaning and history of atrocity, reviewing legal developments over the past century, and learning about the modern international criminal law system.
Most of the semester was spent building a mock postconflict justice tribunal for Syria. Students chose various roles—such as prosecutor, journalist, public relations officer, or activist—and carried out a series of practical exercises in preparation for the final exercise, held on the last day of class: a press conference called by the mock tribunal’s chief prosecutor (played by Crane) announcing an indictment against Syrian President Bhashr Hafez Al-Assad.
Students also set up a public relations office; organized a PR plan; staged a news broadcast; and developed a coordination plan for NGOs working in Syria, as well as a model for the organizations to work together into the future.
Zach Krahmer, who is earning a master’s degree in photography from the Newhouse School and an executive master’s degree in international relations from the Maxwell School, says he chose to enroll in the class because he is interested in conflict resolution and has worked with communities that have experienced trauma. “I wanted to think critically about the way we produce and consume media that involves atrocities, and the responsibility that implies,” he says.
He notes a particular assignment that had him and his classmates explore the ways social media have been used in various campaigns, with the resulting presentations touching on everything from the Colombian plebiscite to Buddhist extremist groups in Myanmar to Assad. “I was surprised by the innumerable ways that perceptions of events had been manipulated by tactful use of media,” he says.
Krahmer, along with fellow students Katie Conti and Maggie Mabie ’16, acted as Crane’s media team for the mock tribunal. They staged the public release of an indictment against a sitting head of state; wrote, edited and delivered a press release; and crafted the chief prosecutor’s press briefing. “It was valuable to experience the deliberation that goes into crafting public messages such as these,” he says. Mabie, who earned a bachelor’s degree in public relations from the Newhouse School and is now a joint J.D./M.P.A. student in the College of Law and the Maxwell School, says the final exercise was one of the most powerful parts of the class. “Everyone treated the simulation as if it were real.”
Following the class, Krahmer says, “I have a greater appreciation for the way media can be leveraged by different actors to achieve their goals.”
Crane knows intimately how important good journalism and good public relations are to the success of postconflict justice. As the founding chief prosecutor of the Special Court for Sierra Leone—an international war crimes tribunal set up after a devastating civil war—Crane held frequent press conferences and town hall meetings with ordinary citizens seeking justice for war crimes and crimes against humanity, helping them to engage with a lengthy and esoteric process and to accept its findings.
Today, Crane and his law students in the College of Law’s Syrian Accountability Project (SAP) rely on ground reports from reporters, photojournalists, and others in the field. SAP is an internationally recognized, cooperative effort to document war crimes and crimes against humanity in the Syrian Civil War. The students log reports of crimes in their “Crime Matrix,” which is filed with international clients such as the United Nations and International Criminal Court. The intent is that the Crime Matrix will help form the basis of a prosecution of those most responsible for humanitarian crimes after the conflict ends.
Crane and Harper have collaborated on several recent SAP projects, including the event Running for Cover and the white papers “Looking Through the Window Darkly”; “Covered in Dust, Veiled by Shadows”; “Idlib Left Breathless”; and “Report on the Yazidi Genocide.”
“In a conflict zone, the free press is often another victim of tyrants and unscrupulous warriors, and journalists must do their work in extremely dangerous conditions. Certainly, Ken and I know first-hand the difficulties reporters face when documenting human suffering, and the Syrian Accountability Project has recorded many crimes against journalists during that conflict,” says Crane. “Nevertheless, throughout the world there are brave reporters who risk their lives, not only filing reports so the world can witness atrocity but also acting as advocates for those who have no voice. In this course, Ken and I worked together from different disciplines to instill a sense of the responsibility communicators in war zones have, how their work can bring hope and eventually justice to the afflicted, and the importance of professionalism in extreme conditions.”
Khoon diy Baarav (Blood Leaves Its Trail)
A screening with film-maker Iffat Fatima. Q&A to follow.
Date: Oct. 4, 2017
Time: 4 p.m.
Location: Global Collaboratory (Eggers 060)
David F. Everett Postconflict Reconstruction Speaker Series
Moynihan Institute of Global Affairs
Institute for National Security and Counterterrorism (David F. Everett Postconflict Reconstruction Speaker Series)
The conflict in Kashmir is among the long-standing political conflicts in the world. It has taken a heavy toll on lives, on sanity and on the idea of normalcy. The film Khoon Diy Baarav made over nine years, enters the vexed political scenario in Kashmir through the lives of families of the victims of enforced disappearances. It explores memory as a mode of resistance, constantly confronting reality and morphing from the personal to the political, the individual to the collective.
Designing Coercive Institutions in Postconflict Settings, with Erica de Bruin
Date: Oct. 24, 2017
Location: Global Collaboratory (Eggers 060)
David F. Everett Postconflict Reconstruction Speaker Series
“Designing Coercive Institutions in Post-Conflict Settings” will explore the trade-offs policymakers face in designing coercive institutions in the aftermath of conflict. In particular, it will show how aspects of security sector reform thought to reduce the likelihood that war resumes can inadvertently increase the risk of coups d’état, and identify concrete strategies to mitigate this risk.
Erica De Bruin is an Assistant Professor of Government at Hamilton College, where she studies international security and civil-military relations. Her research focuses on the dynamics of military coups, design of coercive institutions, and sources of civilian support for armed groups. It has been published in the Journal of Conflict Resolution and Foreign Affairs online. She worked previously as a Research Associate in U.S. Foreign Policy at the Council on Foreign Relations and the New America Foundation in Washington, DC.