Thursday, April 30, 2009

The Special Tribunal for Lebanon: A New Ad Hoc Hybrid Tribunal

Recently, the Special Tribunal for Lebanon began operating, by swearing in judges and establishing a first set of procedures. This tribunal is the latest in the recent trend in the international criminal community toward establishing hybrid tribunals on an ad hoc basis, to deal with particular situations, regions and issues. In fact, other such hybrid tribunals include the Special Court for Sierra Leone, the Iraqi Special Tribunal, and the Extra-Ordinary Chambers in the Courts of Cambodia. While each of these tribunals has special characteristics and a different degree of domestic v. international features, all of them reflect a consensus between the international community and the host country (Lebanon, Sierra Leone, Iraq, and Cambodia) that something ought to be done about particular crimes in the host crimes.
The Special Tribunal for Lebanon was established pursuant to an agreement between the United Nations and Lebanon, negotiated in 2006, and solidified through several Security Council resolutions (in fact, it had been the government of Lebanon that wrote to the United Nations, requesting the establishment of the special tribunal - a situation exactly alike to the one in Sierra Leone). The Lebanese tribunal has jurisdiction to investigate, and prosecute those responsible for, the attack of Feb. 14, 2005, in which former Prime Minister Rafiq Hariri was killed, and several other individuals were killed or injured. The tribunal can also investigate other acts if it finds that they are linked to the Hariri assassination. The tribunal, while directed to apply Lebanese criminal law, is of an international character because some of its judges and its prosecutor are "international" (some judges hail from Lebanon). Moreover, the tribunal's seat is in the Netherlands, not in Lebanon, a fact which adds to the international character of this institution. Like the Special Court for Sierra Leone, the Special Tribunal for Lebanon is composed of four offices: the Registry, the Prosecution, the Defense, and the Chambers (to read more about the tribunal, click here:
There are many arguments as to why establishing hybrid tribunals versus purely international ones is a good thing. Hybrid tribunals implicate the host country, if they are located in the host country, they help rebuild its judiciary, institutions, and domestic criminal law, they provide a sense of domestic justice and closure to the victims, can bring about national reconciliation, and can send a stronger message of deterrence domestically. On the other hand, ad hoc hybrid tribunals undermine the International Criminal Court ("ICC"), in instances where the situation could be investigated by the ICC because it fits its jurisdictional mandate. De facto, the United States, a main opponent of the ICC, has been a staunch supporter of ad hoc hybrid tribunals, possibly due to an implicit American policy of thwarting the ICC and sending cases elsewhere. It will be interesting to note whether more ad hoc hybrid tribunals are established during the Obama Administration reign, as our new president seems to have a more supportive stance toward the ICC and may prefer for cases to be prosecuted there. For now, however, the international community welcomes its newest hybrid member, the Special Tribunal for Lebanon.

Monday, April 20, 2009

Piracy in Somalia: Why It is Dangerous

The Somali pirates are dangerous.

They are sea-terrorists, operating on a supra-national level: beyond the reach of any laws, in the name of no particular state, and against no specific nations. They enjoy complete impunity – most of the time, they are simply chased off, and if captured, they are often released. It would be unimaginable for the United States to capture an Al Qaeda operative, or a member of any other terrorist group, in order to then promptly release him, not wanting to bother with the cost and difficulty of a criminal prosecution. Yet, this is precisely what some countries, like Great Britain and France, have done with respect to captured pirates. They have let them go. And the United States has, wrongly, not said a word about it. The global laissez-faire attitude toward the Somali pirates needs to change, and the United States’ passivity toward these sea-terrorists has to come to an end.

World powers like the United States should be willing to take on the Somali pirates for several reasons. First, the legal tools needed to capture and prosecute these pirates already are in place. The United Nations Security Council has facilitated the fight against Somali piracy, for countries willing to engage in such a fight, by passing five different resolutions during 2008. These resolutions authorize nations patrolling waters in the Indian Ocean off the Somali coast to cross into the 12-nautical-mile zone of Somali territorial waters if self-defending or pursuing pirates. Thus, countries willing to fight the Somali pirates have the Security Council’s green light to apprehend and capture them, be it on the so-called high seas, or anywhere within the Somali territorial waters. Moreover, a combination of two different international conventions regulating the law of the seas arguably provides jurisdiction to try pirates to either the capturing nation, or to any third nation where the pirates have been rendered for prosecution. Countries like the United States and Great Britain have even signed a memorandum of understanding with a regional partner, Kenya, whereby Kenya would try any pirates captured by the two great powers. Thus, world powers like the United States legally may apprehend and try Somali pirates; it is time that they actually do so. Second, pirates are sea-terrorists and may be or become linked to other terrorist groups. For now, we do not know whether the proceeds of piracy are financing other forms of terrorism. However, it is reasonably likely that the Somali pirates will be befriended by groups like the Taliban or Al Qaeda, for whom pirates can easily steal money and weapons. Furthermore, the Somali pirates, if linked to a terrorist group, may attempt to use the hostages that they are already holding (about 300 as of today) as political leverage against all sorts of unreasonable and politically dangerous demands. This type of hostage use is not novel – some may remember that back in the 1980’s, a faction of the Palestinian Liberation Organization hijacked an Italian cruise ship, the Achille Lauro, and refused to release the kidnapped hostages unless Israel released a group of Palestinian prisoners. The United States has been lucky until now: only one American ship was successfully hijacked by the Somali pirates, and after a three-day long stand-off in the Indian Ocean, all American hostages were safely rescued. In the future, the United States may not remain as fortuitous. The Somali pirates have already pledged that they would go after more American ships, and in the recent days, they have certainly done so (albeit, with no success). Thus, the threat of piracy linked to traditional forms of terrorism looms large for countries like the United States, which may become particular targets. Finally, not fighting the Somali piracy signals a message of passivity and carelessness to all sorts of potentially dangerous individuals and groups across the globe, looking to engage in similar types of criminal behavior. If the United States, or Great Britain, or France, is not willing to fight pirates in Somalia, then the Nigerian or Indonesian pirates may become just as brash in their efforts to seize ships, steal money and capture hostages. Then, piracy would become a global issue, as it once was in the 16th and 17th centuries. This is a dangerous proposal that should be cut at its roots.

The United States cannot do it all: it cannot fight wars in Afghanistan and Iraq, worry about Iran and North Korea, and negotiate between Israel and its hostile neighbors. It must prioritize its military and diplomatic efforts and give more importance to certain issues and certain geographic areas at particular times. Now is the time to focus on Somalia and its pirates. If the United States seriously began to capture them, prosecute them, and hand out stiff sentences, maybe other nations would follow and maybe the not-yet captured Somali pirates would begin looking for other (legal) lucrative activities.

Tuesday, April 7, 2009

Former Peruvian President Guilty of Human Rights Abuses

The Peruvian Supreme Court decided on April 7, 2009, that the country's former president, Alberto Fujimori, was guilty of human rights violations, and sentenced him to 25 years in prison (click here to read the story: Fujimori, who ruled Peru from 1990 to 2000, has been imprisoned in Peru since 2006, and was already serving a six-year sentence on unrelated charges, involving abuse of power. Interestingly, a significant number of Peruvians still support Fujimori, who is largely credited with aggressive business and economic policies in the early 1990's that stirred Peru away from financial catastrophe. In fact, Fujimori was democratically elected as president of Peru three times (although his last election was critiqued as irregular and plagued with corruption allegations). Supporters of Fujimori, including his daughter, Keiko Fujimori, who is herself running in the 2011 presidential election in Peru, claim that his sentence stands for revenge and hate of the former president. His opponents, however, point to deaths and disappearances of numerous individuals in the 1990's, when Fujimori was fighting a Maoist insurgency in Peru, called the "Shining Path." Fujimori was accused (and convicted) of authorizing paramilitary death squads to operate against the insurgents during Peru's "dirty war" in 1991 and 1992. Fujimori himself has admitted that he had to "govern from hell, not a palace." When his regime crumbled in 2000, Fujimori fled Peru and exiled himself in Japan (he holds Japanese citizenship as well as he was born to Japanese immigrants in Peru), and then infamously faxed his resignation as president to Peru. Peru attempted to persuade Japan to extradite Fujimori to stand trial in his home country, but Japan remained unresponsive to the extradition request. Ultimately, it was Fujimori himself who sealed his fate when he decided to run in Peruvian presidential elections again in 2006. That year, he traveled to Chile where he was arrested and then extradited to Peru. He has been imprisoned ever since, and it is likely that he will die in jail, in light of his age (70) and his 25-year sentence.
Human rights groups and NGO's hailed Fujimori's sentence as unprecedented and extremely significant in the crusade of human rights protection. Fujimori is the first Latin American former head of state to be formally convicted of human rights violations, although many other countries in this region have experienced dirty wars of their own (El Salvador, Argentina, Paraguay, Chile, etc.). In 1998, a Spanish magistrate, Baltasar Garzon, attempted to indict and prosecute Augusto Pinochet, the former Chilean dictator. These efforts however proved unsuccessful as Pinochet was never extradited to Spain. Pinochet has been on various forms of house arrest in Chile, but he had never been tried or formally convicted anywhere else at the time of his death in 2006 (although there were numerous charges pending against him in Chile: click here to read the story: Thus, the fact that Fujimori, a former president, has now been convicted, appears of paramount importance to human rights advocates. This type of conviction of a former head of state signals to the world community that no one is indefinitely immune from prosecution for gross violations of human rights law. Even presidents can one day stand trial if they condone such atrocities. One can only hope that the Fujimori precedent stands and that it serves as a basis for future prosecutions of rogue leaders.