Law of War & Post-Conflict Transitions Archives | Page 2 of 3

U.S. Attorney General Announces Continued U.S. Funding of Law Enforcement Efforts at 3rd Ministerial of Northern Triangle Attorneys General, as Guatemala Prepares to Abolish Anti-Corruption Prosecutor

May 19, 2019 by Bruce Zagaris Leave a Comment

On May 16, 2019, U.S. Attorney General William P. Barr, during the 3^rd Ministerial of the Northern Triangle Attorneys General announced that, as part of a coordinated law enforcement action known as Operation Regional Shield,President Trump has approved continued funding for law enforcement efforts between the U.S. and the Northern Triangle countries (El Salvador, Guatemala, and Honduras).

In particular Barr said the U.S. will continue fund law enforcement efforts, through the ongoing work of the project’s law enforcement efforts, through the continuing work of the U.S. Office of Overseas Prosecutorial Development Assistance and Training (OPDAT) Resident Legal Advisors in each of the three countries, through the FBI’s Transnational Anti-Gang teams, through the Drug Enforcement Administration’s Sensitive Investigative Units, and through Homeland Security’s (HSI) work to counter human smuggling and trafficking.

Barr said the meeting has reaffirmed his belief that the safety of the citizens of the U.S. and Northern Triangle is interdependent and together they will not only confront but will defeat the criminal gangs.

Inconsistency of U.S. Enforcement Policy with Northern Triangle Countries

In recent months the Trump Administration’s policy in terms of cooperation with the Northern Triangle has not been consistent. For instance, on March 28, 2019, then Secretary of Homeland Security Kirstjen M. Nielsen signed, on behalf of the United States, a Memorandum of Cooperation (MOC) on border security cooperation in Central America. Almost simultaneously, U.S. President Donald Trump said that he was planning on cutting U.S. assistance to the three countries and has threatened to close the border with Mexico.

The initiatives of the U.S. and other governments against transnational organized crime in Central America can be classified in eight areas: whole-of-government solutions; interdiction of criminal flows; targeting of transnational criminal organization leaders; use of the military in a domestic law enforcement; institutional reform within law enforcement; targeting the financial flows and resources of organized criminal groups; prison control and reform; and binational and multinational cooperation against organized crime. (See R. Evan Ellis, Transnational Organized Crime in Latin America and the Caribbean 103-4 (2018).

During his trip Barr highlighted DOJ priorities, including interdicting illegal narcotics, dismantling MS-13, the 18th Street Gang and other transnational criminal organizations, and combatting illegal migration and human trafficking. While in El Salvador, the Attorney General visited the International Law Enforcement Academy.

Effort of Guatemalan Morales Administration to End the Work of the International Commission against Impunty (CICIG)

One setback for the fight against anti-corruption is the effort by the current Guatemala Administration of Jimmy Morales to terminate the work of the International Commission against Impunty (CICIG), which the United Nations established to strength the efforts against organized crime and corruption after Guatemala’s 36-year civil war. See Elisabeth Malkin, Latin America Risks Losing Potential Weapon Against Corruption, N.Y. Times, May 19, 2009, at 10, col. 1.

On May 15, the Guatemala high court rejected the appeal of Thelma Aldana, a crusading former prosecutor, to participate in Guatemala’s presidential election. As a result, at least two of the top three candidates, according to polls, will not be able to run in the election. The decision on Aldana seemed to arise from fears over her zealous prosecutions of corruption in politics and business. Aldana has been denied the right to participate in the election because she lacked a document accrediting that she did not have any outstanding accounts after she was responsible for public funds during her serving as from her time as a former prosecutor.

The Trump Administration has not supported the CICIG, as prior U.S. Administrations have. As a result Morales’ announcement to not renew the CICIG’s two-year mandate in September 2019 and his denial of Ivan Velázquez, the Colombian head of the Commission, in September 2018, mean that, notwithstanding its strong record of prosecuting corruption and transnational organized crime, the lack of independent prosecutors in the Guatemalan government, and the importance of strong and independent prosecutors to better stabilize the security situation in Guatemala, the CICIG may well expire in September. Indeed the enormous security problems due to the proliferation of gangs, gun violence, and corruption fuel migration from Guatemala.

ICC Rejection of Prosecutors Call to Investigate US Service Members for Alleged War Crimes Reveals The Role of Political Power in International Legal Frameworks

April 13, 2019 by Evan Schleicher Leave a Comment

On Friday, April 12^th, the International Criminal Court’s pre-trial judges unanimously rejected a request by the court’s chief prosecutor to investigate alleged war crimes and crimes against humanity committed in Afghanistan. This was about a week after the US revoked ICC prosecutor Fatou Bensouda’s visa over her continuing push to investigate alleged war crimes and crimes against humanity, particularly pertaining to actions taken by US armed forces and the CIA between 2003 and 2004. For more background on this, please see a recent blog post we have written on this topic.

In their decision on a potential investigation, the judges focused on a lack of cooperation received by the prosecutor and the changing political landscape and instability in Afghanistan, suggesting that these conditions are likely to persist. The central issue at play is one briefly mentioned in our last piece: From an international enforcement perspective, the controversy concerns whether a powerful state can assert its power to give impunity to its nationals when they are under investigation for war crimes.

Article 27 of the Rome Statute was included to avoid this manipulation by powerful actors and to produce equal justice across the world and society. It reads:

This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

Amnesty International has criticized the ICC for failing to hold the line on these standards and for too often giving into state demands. The ICC giving into the political influence of states is clearly an issue in the Afghanistan example, given that the investigation was halted due to a lack of support from the United States. This is a general trend between the ICC and powerful states, as these states have continued to exert their authority in the face of ICC attempts at investigation and prosecution. To begin, although the Rome statute, which set up the court, came into force in 2002, and 123 states are party to it, the US, Russia, China, India and others such as Israel have either not ratified or have rejected the treaty. South African efforts to withdraw from the Rome Statute reveals that even the strongest supporters of the ICC can be fickle when their geopolitical interests are affected by the Court’s activities. The US has been particularly aggressive in threatening ICC officials, with National Security Adviser John Bolton threatening sanctions against ICC officials if they pursue cases against US citizens. Due to the ability of these powerful countries to avoid prosecution, virtually all its cases were in Africa, which has strained the Court’s political base as accusations have emerged of anti-African bias.

This row over ICC authority to investigate American service members and CIA officers has also created an interesting jurisdictional question, as the US objects to the ICC’s jurisdiction over nationals of non-member countries, absent a referral to the court by the United Nations Security Council. However, ICC prosecutors have argued that because Afghanistan is an ICC member country, they have the authority to investigate and prosecute crimes which were committed within Afghan borders. Precedent in the international system might favor the latter interpretation, given that national governments already have the legal authority to investigate and prosecute foreign individuals who commit crimes within their borders. The geography of the crime remains an important factor in determining the jurisdictional limits of different organizations and states and, in the context of the ICC, geographic jurisdiction can be overcome de imperio by the Security Council (with permanent member agreement). The US seems to have generally accepted this premise at a level short of war crimes, given that the State Department website advises that they cannot get US citizens out of jail, state to a court that anyone is guilty or innocent, provide legal advice, or serve as officials interpreters or translators.

The ICC’s lack of capacity to hold powerful states accountable will likely force it to continue to focus its investigations on poorer, less politically powerful countries. Despite attempts by international legal authorities to promote equal justice over the world, investigations and prosecutions coming out of the ICC will continue to promote a culture of immunity within powerful countries and will continue to over focus on African and other politically peripheral countries within the international system.

The current issue of the IELR will carry a more in-depth discussion of the decision by Professor Michael Plachta.

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Evan Schleicher is an Editorial Intern with the International Enforcement Law Reporter. He is also an MA candidate in Security Policy Studies at George Washington University’s Elliott School of International Affairs.

Conviction of Iraqi War Criminal Raises Questions About the Treatment of Extremist Fighters in Conflict and Captivity

March 16, 2019 by Evan Schleicher Leave a Comment

On February 19^th, the Orebro District Court of Sweden convicted 38-year-old Kurda Bahaalddin H Saeed to 15 months in prison for his involvement in the desecration and filming of bodies of Islamic State in Iraq militants.

The desecration of dead bodies constitutes a war crime according to Article 8(2)(b)(xxi) and (c)(ii) of the 1998 ICC Statute, which state that “[c]ommitting outrages upon personal dignity” constitutes a war crime in both international and non-international armed conflicts. A later document, the ICC Elements of Crimes, specifies that this includes the desecration of dead bodies. Despite admitting to being in pictures which showed him desecrating the bodies, Bahaalddin denied that he had committed war crimes.

This decision reiterates the reality that war crimes, even when committed against ISIS members, who have engaged in countless criminal acts themselves, are still war crimes. It also contrasts with some troubling trends within Iraq and the broader international community regarding the treatment of extremist groups.

A reporter from the New Yorker met with a senior Iraqi intelligence official who detailing patterns of battlefield executions, murders in detention centers, and coverups organized by the state. This pattern has carried over into the courtrooms, where thousands of individuals have been tortured into confessing affiliation to ISIS and hundreds have been hanged. The magnitude of the problem is even greater than that, as these numbers reflect only a small number of total detainees.

Mistreatment of insurgents is not purely an Iraqi Armed Forces phenomenon, as multiple Navy Seals have been charged with severe crimes against ISIS fighters, including one officer, Chief Special Warfare Operator Edward Gallagher, who underwent his reenlistment ceremony while posed with the corpse of a teenage ISIS fighter he killed. He was also accused of shooting two civilians and firing indiscriminately into crowds while deployed in Iraq. On February 19^th, Gallagher’s trial was postponed three months so that the defense would have more time to review new evidence from the prosecution. His official trial date is now May 28^th.

Although only individual soldiers have been tried, to date, the previous evidence of the Iraqi situation makes it clear that a culture exists which implicitly justifies widespread abuses both against civilians and ISIS members in Iraq. An Amnesty International report published in 2018 claims that over 1,000 civilians were killed by Coalition and affiliate forces during the 2017 Raqqa offensive in Syria. The report concludes with the not-so-subtle claim that “states have an obligation to investigate allegations of war crimes by their forces or nationals.”

The question becomes: Is there hope that US or Iraqi war criminals will be broadly brought to justice? The answer, it seems, is no. To begin, neither Iraq nor the United States have ratified the Rome Statute of the International Criminal Court, meaning that any international attempt to try war criminals in Iraq may be doomed to failure from the onset. Sweden was only able to try Bahaaldin because he arrived in the country with his family as a refugee, and given the recent opposition in the West to repatriating the large numbers of captured ISIS fighters, it may fall on the governments of Iraq and Syria to mete out “justice” to these captured individuals. Further, thousands of ISIS fighters are being held by the Syrian Democratic Forces, who were a large part of the previously mentioned Raqqa offensive, and who may become judge, jury, and executioner if no agreements are made to repatriate captives. Previous concerns about the Iraqi justice system and the SDF reveal the potential for widespread abuse which exists in the present moment.

Perhaps the larger concern here is that the violence committed against supposed members of these extremist groups will create a cycle of violence. A CIA officer, commenting on the indiscriminate executions undertaken by the Iraqi government, said that “Of course [ISIS] came back…What do you expect? You literally killed their dads.” The previously mentioned Iraqi intelligence officials noted a similar concern, saying that the indiscriminate arrests and killings of Sunnis fed into the narrative that Sunnis could not live safely in Iraqi society. This contributed heavily to ISIS recruitment and to implicit support for the group among terrified Sunni populations across the country.

This case is undoubtedly important, given that it should, in combination with cases like Edward Gallagher’s, begin to establish norms of accountability regarding war crimes committed against war criminals. Further, it provides a blueprint for countries fighting with terrorist groups by which they can punish war criminals justly within the bounds of international law and avoid becoming criminals themselves in the process.

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German Appellate Court Overturns Convictions of Two Rwandans Charged with War Crimes

December 24, 2018 by Bruce Zagaris Leave a Comment

By Evan Schleicher

Germany’s top appeals court has partially overturned the convictions of two Rwandan men, Ignace Murwanashyaka and his deputy Straton Musoni, who were accused of aiding and abetting in the committing of war crimes in Rwanda. Their original trial, which was concluded in 2015, was a massive war crimes trial in which the Higher Regional Court in Stuttgart was in session for 320 days over a period of more than four years. The indictment, making use of the German Code of Crimes Against International Law (Völkerstrafgesetzbuch, CCAIL), which was introduced in 2002 to bring German criminal law in line with the provisions in the Rome Statute of the International Criminal Court (ICC), was the first major test of the principle of universal jurisdiction. While the case resulted in convictions, it highlighted the limits of universal jurisdiction in practice. The extremely limited sentencing of these two men initially, and the subsequent overturning of major segments of their convictions, reveal the degree to which a lack of domestic resources and overwhelming international friction to a loosely defined universal jurisdiction have made current efforts, such as those in Germany, largely ineffective.

On the topic of international friction, a lack of definitional cohesion of universal jurisdiction and the absence of international criminal courts have hindered efforts to try international criminals globally. According to M. Cherif Bassiouni in his Introduction to International Criminal Law at 713-714 (2003) and the International Committee of the Red Cross, universal jurisdiction is reserved for persons who have committed the jus cogens crimes of genocide, crimes against humanity, war crimes, torture, slavery, and slave-related practices regardless of where an alleged crime was committed, and regardless of the accused’s nationality, country of residence, or any other relation with the prosecuting entity. In practice, this seemingly simple definition has caused significant controversy. Concerns over differing jurisdictional claims and infringements of state sovereignty have made the development of a common definition of universal jurisdiction impossible. Recently, the Kenyan representative to the Sixth Committee said that “Universal jurisdiction must not be allowed to become a wildfire, uncontrolled in its spread and destructive of orderly legal processes”. This poetic turn of phrase hints at another potential harm of the principle: abuse and misuse by powerful states to attacks individuals or groups. Further, there is a danger that this principle will be used to attack the sovereignty of other nations. Many States differ in their position on universal jurisdiction when discussing the immunity of Heads of States and Governments, making it possible that a powerful nation could attempt to take and try other heads of state who oppose their interests. This may seem unlikely, but even short of such a dramatic scenario, the precedent set by universal jurisdiction claims could easily produce significant confusion and conflict between nations. There seems to be no end in sight, as talks have been ongoing since 2010 on how best to define the principle.

Further, partially because of inconsistencies across nations, domestic courts attempting to try international cases and even sometimes international criminal tribunals have received little international support. Judges in the initial trial in Germany went on the record multiple times to note the difficulty of hearing evidence from Germany and it seems that they received little outside support, even from other German courts. Further there were difficulties in the translation of documents, as well as the obtaining of evidence which met the standards of German criminal code. In sum, it was a process which was hugely time consuming and extremely difficult. This is very telling when it is noted that only two men were on trial and their initial combined sentences were only twenty-one years. International legal efforts have historically required far more resources than the courts of even an advanced country can hope to provide. The International Criminal Court at The Hague and the International Criminal Tribunal for former Yugoslavia both employed hundreds of court psychologists, legal experts and translators, resources which courts such as the Stuttgart Higher Regional Court lack.

The recent reduction of the sentences initially handed out in 2015 can thus be seen as an example of the limits of the principle of universal jurisdiction, especially when undertaken by national tribunals. In fact, because of perceived and actual limitations to the notion of universal jurisdiction, courts have begun to push for trials in the countries in which the crimes were committed when such adjudications are possible and can be fair. In 2017, the Higher Regional Court in Hamm referred a war crimes trial back to Rwanda. Further, within discussions about the notion of universal jurisdiction, there has been an extensive focus on accurately defining the jurisdictions of organizations such as the ICC considering the emerging principle. In light of these simultaneous realities, it is clear that despite the potential benefits of the principle, it will require significantly more institutional cohesion and support before it can hope to produce more effective or lasting verdicts than either existing international courts or courts within the countries in which the crimes were committed can.

Over a Year after Capture, Trump Administration Frees American ISIS Suspect at the Center of Doe v. Mattis Case

November 2, 2018 by Zarine Kharazian Leave a Comment

The Trump administration has released the anonymous U.S.-Saudi dual national and alleged ISIS fighter at the heart of the Doe v. Mattis case to a third country, reported to be Bahrain, U.S. officials announced on Monday, October 29. The man’s release comes thirteen months after he was captured by Kurdish military forces in Syria, and turned over to the American military. It also brings an end to a bitter and lengthy court battle that has raised novel substantive and procedural questions about the scope of the executive’s powers in wartime.

The suspect, a “John Doe,” resided in the custody of the U.S. military in Iraq for over a year. U.S. forces initially detained him as an enemy combatant, based on his own declaration that he was an ISIL member, coupled with corroborating evidence. While Doe’s real name and identity have been kept confidential throughout the case, the New York Times identified him on October 29 as Abdulrahman Ahmad Alsheikh, after reviewing an unredacted version of an Islamic State intake form and other public records.

Initially, the American Civil Liberties Union (ACLU) filed a petition for a writ of habeas corpus on Alsheikh’s behalf in district court. The petition asked that the district court order the government to either charge Doe with a federal crime in a federal court, or to release him, sparking a lengthy court battle and appeals process that seemed headed to the Supreme Court.

At the heart of Doe v. Mattis was a key merits-based question as well as a procedural one. The merits-based question, litigated at the district level, concerned whether the president’s Article II authority and/or the 2001 and 2002 Authorizations for the Use of Military Force (AUMFs) apply to the Islamic State. The procedural question, which made its way to the DC Circuit Court of Appeals, concerned the U.S. government’s authority to forcibly transfer Doe to another country (presumed to be Saudi Arabia) while hos habeas petition remains pending.

The release of Alsheikh is the result of a confidential settlement agreement between Alheikh’s counsel from the ACLU and the Trump administration. In a blog post published on the ACLU Blog, Senior Staff Attorney Jonathan Hafetz outlined the agreement as a win for due process rights. “This case demonstrates that the president cannot take away an American’s liberty without due process, showing the continuing importance of judicial review,” Hafetz wrote. “[T]he government cannot render citizens to another country against their will — especially to places where they face further detention or risk to personal safety.”

According to the New York Times, the State Department has canceled Alsheikh’s American passport, but has not revoked his American citizenship.

See the IELR’s prior coverage on the Doe v. Mattis case here.

Trump Administration Threatens Sanctions against International Criminal Court

September 10, 2018 by Bruce Zagaris Leave a Comment

On September 10, 2018, in a speech before the Federalist Society U.S. National Security Advisor John Bolton said the Trump Administration will use any means necessary to protect U.S. citizens, and those of its allies, from unjust prosecution by the International Criminal Court.

Bolton said a major reason for his remarks was that on November 3, 2017, the ICC’s Chief Prosecutor issued a statement concerning her request to start an investigation into the situation in Afghanistan. The Chief Prosecutor indicated the investigation would target the Afghan National Security Forces, the Taliban, and the Haqqani network, as well as war crimes allegedly committed by U.S. service members and intelligence professionals during the Afghan war since May 1, 2003.

Bolton announced that, if the ICC formally opens an investigation, the Trump Administration will consider the following steps: negotiate even more binding, bilateral agreements to prohibit countries from surrendering U.S. persons to the ICC; to the extent allowed by U.S. law; ban ICC judges and prosecutors from entering the U.S.; sanction their funds in the U.S. financial system, and prosecute them in the U.S. criminal system; consider acting in the UN Security Council to limit the ICC’s authority, including to ensure that the ICC does not exercise jurisdiction over U.S. nationals and the U.S. allies that have not ratified the Rome Statute; and take action against entities and persons who cooperate with the ICC with respect to cases against U.S. nationals.

Bolton explained the Trump Administration will protect American constitutionalism, its sovereignty, and its citizens. Bolton observed that, as Trump said in his first foreign policy speech as a Presidential candidate in April 2016, given in the same Mayflower Hotel that Bolton delivered his talk, the Trump promised “in every decision we make, we will put the interests of the American People first.”

In his remarks Bolton explained that the ICC was established in July 2002 with the entry into force of the Rome Statute. While the U.S> originally signed the Rome Statute at the very end of the Clinton Administration, it was not submitted to the Senate for ratification. In May 2002, President George W. Bush authorized the then-Under Secretary of State John Bolton to “unsign” it based on the view of the U.S. government that it was fundamentally illegitimate.

Bolton explained the U.S. government’s position to unsign the Rome treaty is based on concerns of the U.S. government that the ICCC has broad, unaccountable powers that posed a significant threat to U.S. sovereignty and its constitutional protections. Bolton said it is a fundamental principle of international law that a treaty is binding only on its parties, and that it does not establish obligations for non-parties without their consent.

The current issue of the IELR will provide a more comprehensive account of the remarks by Bolton and implications.

UN Investigators Call for Prosecution of Top Myanmar Officials for Genocide

August 30, 2018 by Zarine Kharazian Leave a Comment

On August 27, 2018, the United Nation’s Independent International Fact-Finding Mission on Myanmar released its report detailing the human rights abuses and war crimes of Myanmar government and military officials against the Rohingya people, a Muslim minority ethnic group who resided for centuries in the Buddhist-majority country of Myanmar’s Rakhine State.

Drawing from over nearly 900 interviews with victims, eyewitnesses, and experts, obtained satellite imagery and photographs, as well as open source material, the Mission highlights a pattern of systemic persecution of the Rohingya over decades, as well as war crimes and crimes against humanity perpetrated principally by the Tamadaw (military) forces. The report makes clear that the violence and persecution against the Rohingya did not begin with the 2012 “clearance operations” orchestrated by the Tamadaw. Rather, the lack of legal status afforded to the Rohingya, coupled with increasingly exclusionary citizenship and political rights have rendered members of the ethnic group “defacto stateless.”

Against the backdrop of the gradual systematic disenfranchisement of the Rohingya, the Mission also alleges that the Myanmar military perpetrated widespread and organized crimes against humanity and war crimes against the Rohingya people. In particular, the report notes:

Myanmar security forces were at least complicit. They often failed to intervene to stop the violence, or actively participated. They injured, killed and tortured Rohingya and destroyed their properties. Witnesses from Sittwe and Kyaukpyu described security forces preventing Rohingya or Kaman from extinguishing houses set on fire by Rakhine, including by gunfire. Witnesses from Maungdaw described security forces shooting indiscriminately at Rohingya and conducting mass arbitrary arrests, including of Rohingya NGO workers. Large groups were transferred to Buthidaung prison, where they faced inhuman conditions and torture. Prisoners were beaten by prison guards and fellow Rakhine detainees, some fatally.

The Mission culminates its report by calling for the “investigation and prosecution” of senior Tatmadaw officials to “determine their liability for genocide in relation to the situation in Rakhine State.” The report also notes that sufficient basis exists to find that the Tatmandaw committed war crimes and crime against humanity against the Royingya. Six senior officials are named as bearing principal responsibility for directing the operations:

Tatmadaw Commander-in-Chief, Senior-General Min Aung Hlaing;
Deputy Commander-in-Chief, Vice Senior-General Soe Win;
Commander, Bureau of Special Operations-3, Lieutenant-General Aung Kyaw Zaw;
Commander, Western Regional Military Command, Major-General Maung Maung Soe;
Commander, 33rd Light Infantry Division, Brigadier-General Aung Aung; and
Commander, 99th Light Infantry Division, Brigadier-General Than Oo.

In Myanmar state media, a spokesperson for the government, U Zaw Htay, denounced the U.N. mission for making “false allegations” of genocidal intent in its report.

You may access the full U.N. report below.

A_HRC_39_64

Organization for the Prohibition of Chemical Weapons Gains Power to Assign Blame

June 29, 2018 by Maria O' Sullivan Leave a Comment

On June 27, 2018, the Organization for the Prohibition of Chemical Weapons (OPCW) gained the power to assign blame for chemical weapons attacks. This British-led move, opposed by Russia, Syria and their allies, is a big step forward in holding perpetrators of such attacks legally accountable, and comes at a time when chemical weapons are in the spotlight following horrific stories of attacks on civilians in Syria and the Sergei Skripal case.

This latter case no doubt could be why Russia not only opposed the motion but tried to filibuster it, which ultimately passed 82 to 24, with 26 countries abstaining.

Notably, the June 26-28 meeting officially condemned attacks in Syria and the UK, as well as the attack on Kim Jong Nam in Malaysia in February of 2017, assigning blame in cases where it had previously not done so.

In the decision from the meeting, responsibility was assigned to the Syrian Arab Republic for various attacks such as in Khan Sheikhoun. On April 4, 2017, over 80 Syrians were killed following a sarin gas attack on the rebel-held town. Witnesses and activists say that the attack happened when many were asleep. Two months after the attack, the OPCW Fact-Finding Mission confirmed that sarin was used, but did not publicly indicate a responsible party until now.

The decision also assigns responsibility to Daesh (or ISIL) for noted attacks.

Markedly, the decision does not assign blame for the attack against Sergei Skripal or Kim Jong Nam. The inclusion of blame would most likely have brought even greater resistance from Russia and potentially even other states.

On March 4, 2018, Sergei Skripal, a former Russian spy, and his daughter were found unconscious on a bench after they had been poisoned with a nerve agent identified as Novichok, which fueled tensions between Britain and Russia. Russia continues to deny involvement.

Britain seeks to “hold Russia legally responsible” given the Soviet origin of Novichok (although Russia has pointed out that other states can synthesize such chemicals), and for putting the lives of British nationals at risk and violating Britain’s sovereignty. Having had OPCW technical assistance with this case which assessed the agent to be highly pure, Britain could potentially move forward with action following the July 27 vote.

The July 27 vote could be another step towards action against the Syrian Arab Republic as well. The OPCW-UN Joint Investigative Mechanism in Syria was the only body with the expertise and mandate “to attribute responsibility of use of chemical weapons in Syria,” although multiple other organizations and bodies exist to draw attention to perpetrators. But this body was short-lived surviving from 2015 until 2017 when it was dissolved following Russia’s inability to accept the findings that held Syria responsible, “an illustration of the broader geopolitical cleavage between Russia and the West.”

Ironically, Iran, supporting Russia’s resistance of the July 27 vote, said in a statement at the session that they questioned whether the move to allow the OPCW to assign blame would “politicize” the body and stated that it would “cause a heavy burden of responsibility and liability for the Technical Secretariat and the DG and place their impartiality under question as well.”

Moving forward, cases such as Syria and Skripal will remain contentious in terms of the proper actions to take and the perceived impartiality of the OPCW; however the motion to assign blame passed on July 27 was a large stepping stone towards international accountability.

Maria O’Sullivan is a Legal Assistant at Berliner Corcoran and Rowe LLP.

Motion Challenges Indefinite Detention of 11 Guantanamo Detainees for 16 Years Without Charges or Trial

January 15, 2018 by Bruce Zagaris Leave a Comment

On January 11, 2018, on the 16^th anniversary of the Guantánamo prison’s opening, the Center for Constitutional Rights (CCR), Reprieve, and co-counsel filed a motion on behalf of 11 men held at the military facility for 16 years, challenging indefinite detention without charges or trial.

The motion argues that Trump’s proclamation against releasing anyone from Guantánamo, regardless of their circumstances, which has borne out for the first full year of the Trump presidency, is arbitrary and unlawful and amounts to “perpetual detention for detention’s sake.”

In a press release CCR Senior Staff Attorney Pardiss Kebriaei, who represents Sharqawi Al Hajj, said that “continuing indefinite detention after all this time is unprecedented and experimental. Another three or seven years under President Trump may mean a death sentence for men like Sharqawi Al Hajj, who is in poor health and damaged by past torture.”

According to the filing the continued detention is unconstitutional because any legitimate rationale for initially detaining these men has long since expired. Detention 16 years into Guantánamo’s operation, is based only on Trump’s raw antipathy towards Guantánamo prisoners – all foreign-born Muslim men – and Muslims more broadly.

Some of the men participating in the filing allegedly have been detained in Guantánamo for nearly 16 years without charge or trial—detention that has spanned three presidential administrations and five presidential terms.

Two of the petitioners have even been approved for transfer, narrowly missing their chance at release in the final days of the Obama administration.

The CCR press release states that Reprieve attorney Shelby Sullivan-Bennis, who represents prisoners at Guantánamo, said, “Since Guantánamo opened, it’s been clear to all – including U.S. officials – that the detainees were being held on the basis of mistakes, faulty evidence, and forced ‘confessions’. The U.S. has had 16 years to build a case against these men, and yet 28 of 41 prisoners are held without charge or a trial of any kind – a shocking violation of America’s founding principles.

On January 11, 2018, human rights activists, torture survivors, Guantánamo attorneys, 9/11 family members, and members of diverse faith communities rallied outside the White House to mark the 16th anniversary and the continued operation of the Guantánamo Bay prison. The coalition issued a press release about the rally. The coalition included the Center for Constitutional Rights, Close Guantanamo, Codepink, Council on American Islamic Relations, Defending Rights and Dissent, Justice for Muslims Collective, National Religious Campaign Against Torture, No More Guantanamos, Reprieve, September 11th Families for Peaceful Tomorrows, Torture Abolition and Survivors Support Coalition, Veterans For Peace, Voices for Creative Nonviolence, Witness Against Torture, and World Can’t Wait.

Meanwhile, a spokeswoman for the Department of Justice declined to comment, saying that officials were reviewing the filing.

As defense counsel to United States citizens abroad, I used to be able to successfully argue that the foreign government had detained my clients for days and weeks without filing charges and/or affording them right to counsel, consular access, etc. In view of conduct by the U.S. government with respect to Guantánamo detainees, such arguments no longer resonate.

Another consequence of the continued detentions is that, in extradition requests by the U.S. government, especially with respect to national security and Muslim defendants, courts from democratic countries no longer accord the U.S. the benefit of the doubt as they did previously.

The “Father of International Criminal Law,” M. Cherif Bassiouni (1937-2017)

September 27, 2017 by Zarine Kharazian Leave a Comment

M. Cherif Bassiouni, an Egyptian-American law professor hailed by many in academic and policy circles as “the father of international criminal law,” passed away on September 25, 2017. He was 79. The cause of death was reported to be complications from multiple myeloma.

Mahmoud Cherif Bassiouni was born in Cairo, Egypt, on December 9, 1937. His father was an Egyptian diplomat to India. In 1956, while a young Bassiouni was studying law in France, the Suez Crisis broke out. Bassiouni returned to Egypt to serve in the Egyptian army, and fought against the attack on the Sinai Peninsula.

In 1964, Bassiouni received his law degree from Indiana University, and also received a doctorate of law from George Washington University. As a legal scholar, Professor Bassiouni was incredibly prolific. In his six decade long career, he published 256 scholarly articles and over 30 books on topics ranging from international extradition to the Islamic criminal justice system.

Professor Bassiouni with Barack Obama Chicago, IL | 2008

Professor Bassiouni was not only a scholar of international law, but a human rights champion. As vice-chair of the UN General Assembly, he helped establish the International Criminal Court, earning him a Nobel Peace Prize nomination in 1999. He has investigated war crimes and human rights violations in the former Yugoslavia, Rwanda, and Afghanistan, among other countries. In 1990, he co-founded the International Human Rights Law Institute at DePaul University, where he had taught for over six decades.

Opinio Juris has published a farewell note by Professor Bassiouni that his students sent out posthumously from his email account to his list of friends and acquaintances. He is survived by his wife, Elaine Klemen-Bassiouni, a stepdaughter, Lisa Capitanini, and two grandchildren.