Transitions

ICC, Sudan, Arrest Warrants and Lubanga

Ten years after the coming into force of the Rome Statute, the International Criminal Court attracted more attention over the last month than ever before.

On June 13, the court ruled that a request by defendant Thomas Lubanga to halt the proceedings should be granted. The court found that the prosecutor had abused a rule allowed him to gather information from confidential sources for the purpose of investigation. Using this rule, the prosecutor had obtained a large number of documents from the United Nations but had been unable to release them either to the court or to Mr. Lubanga, as the prosecutor had not managed to obtain the consent of the UN to do so before the scheduled start of the trial.

This failure to give access to documents that may contain exonerating information to the defense before trial violated the right to a fair trial according to the court. For this reason, it decided to halt the proceedings. On July 2, it also decided to release Mr. Lubanga but agreed that the prosecutor could appeal to an appeals panel. The decision of the Appeals Chamber is expected shortly.

Is this a catastrophe for the court? It is certainly undesirable to have the first case dismissed on technical grounds rather than on the evidence. The narrow nature of the charges against Mr. Lubanga, who is charged with three counts of child recruitment, made the case vulnerable and apparently dependent on UN documents. However, the formal agreement between the UN and the ICC has put too much emphasis on confidentiality as a basis for sharing information and will need re-examination. The prosecutor will need access to such documents as evidence to bring and succeed in his cases.

While this issue is now with the Appeals Chamber, the decision of the trial court may cause the UN to reconsider its stance on making the documents available. The Trial Chamber decision is also a sign that the judges will be vigilant about the rights of the accused. After all, fair trials are more important for the long-term credibility of the court than convictions.

Developments in the Lubanga trial were eclipsed by the prosecutor's request July 14 for an arrest warrant for President Omar al-Bashir of Sudan on charges of genocide and crimes against humanity in Darfur. The request comes at a very difficult time for Sudan. From the time when the ICC issued arrest warrants against Ahmed Mohammed Harun and Ali Kushayb, in April 2007, Sudan has refused any cooperation with the court. Khartoum now threatens much more severe consequences that could result in the loss of life. Political support for the arrest warrants is uncertain, which is ironic since the Security Council itself referred the case to the court. While this referral began a process that was certain to lead to arrest warrants for those most responsible, it is unclear where the Security Council will stand. At the same time, the arrest warrants provide an important vindication for the victims of Darfur.

Photo: Thomas Lubanga at the International Criminal Court. Photo by Rob Keeris/AFP/Getty Images.

Fall Courses Announced

The ICTJ offers a wide range of courses and fellowship programs for practitioners, academics, and students at the graduate and postgraduate levels. The ICTJ is currently accepting applications for three fall courses:

Workshop on Transitional Justice and Development in Africa (Cape Town, South Africa, September 15 - 19, 2008)

The theme of this workshop is "Enhancing socio-economic justice in societies in transition: Case studies on the African continent." Sponsored by the Japan International Cooperation Agency (JICA) and hosted by the ICTJ, it is the last in a three-part series of workshops that aims to foster understanding of the relationship between transitional justice and development.

The ICTJ Essentials Course: Spotlight on the European Experience (Brussels, Belgium, November 12 - 14, 2008)

ICTJ Brussels, in association with the KU Leuven Faculty of Law, offers this new three-day course, which adds a European aspect to the standard ICTJ Essentials Course. It examines the mechanisms of transitional justice through a deliberately European lens and the case studies in the course are drawn from European experiences.

The Cape Town Transitional Justice Fellowship Program (October 20- November 8, 2008)

ICTJ Cape Town offers an intensive three-week transitional justice course taught by senior ICTJ staff and other visiting lecturers, including Andre du Toit, Emeritus Professor at the University of Cape Town and former Truth and Reconciliation Commissioner Yasmin Sooka. Fellows will discuss strategies that can bring about a more just, democratic, and peaceful society after conflict or repressive rule.

The training provides an opportunity for fellows to develop a network of human rights advocates from around the world. Participants who successfully complete the Fellowship will receive a Certificate in Transitional Justice from the ICTJ.

Visit the ICTJ website to learn more about ICTJ courses and fellowships.

ICTJ, Duke: Archiving Transitional Justice

The ICTJ is pleased to announce a collaborative effort with the Duke University Libraries to preserve records of the ICTJ's global work. In the coming years, the Libraries' Archive for Human Rights will house the ICTJ's physical and digital archives.

"As an institution dedicated to dealing with the past, we have a strong appreciation for documentation and archives," said Louis Bickford, director of ICTJ's Policymakers and Civil Society Unit. "We became aware early on that we needed to take steps to secure our own institutional archive, and are very excited to work with Duke University Libraries to do so."

The transfer of material to take place over the next five years will include documentation relating to transitional justice and the ICTJ's work in both regional and thematic contexts. These materials will be made available to scholars and researchers.

"We are fully committed to preserving the remarkable print and digital records of the work of the ICTJ and to making them accessible into the future. It is an honor to be entrusted with this important collection of human rights documentation," said Deborah Jakubs, Rita DiGiallonardo Holloway University Librarian and Vice Provost for Library Affairs at Duke University.

An innovative digital records initiative at Duke University will ensure the preservation of thousands of historically important digital records.

"The ICTJ's archive will at some point be an essential resource for a wide variety of people, including researchers, historians, and human rights activists, interested in understanding the growth of the field of transitional justice," said ICTJ President Juan Mendez.

Duke's Archive for Human Rights also houses collections of other organizations, including the Center for International Policy, the Washington Office on Latin America and the International Monitor Institute.

Memorialization and Democracy

Throughout the world, societies must choose how to remember episodes of past human rights abuse and mass atrocity. How they do so is critical for sustainable peace and democratization. A new report, Memorialization and Democracy: State Policy and Civic Action, explores the complex issues related to remembering the past, with a special emphasis on the role of both the state and civil society in creating public memorials that strengthen democracy for the long-term.

The report is based on an international conference held in June 2007 in Santiago Chile that brought together 130 theo­rists, practitioners, and policymakers from more that 20 countries to develop innovative approaches to public memorials.

The conference sought to generate strategies for inte­grating memorialization and democracy building, and grew out of three imperatives:

• Memorialization can play a constructive role in shaping cultures of democracy and therefore needs to be included in democracy-building projects;
• Deliberate local, national, and international strategies are required to ensure that memorials complement other democracy-building efforts; and
  
• Strategies require participation of a wide variety of actors and must be tailored to diverse political and cultural contexts.

 The report highlights conclusions reached at the conference, including:

• Sites need to promote dialogue rather than didactic approaches;
• Sites should involve and engage new generations;
• Creating sites is a process in which artists can play an important role;
• Context and creativity are two of the most necessary components of creating public memory sites; and
  
• Sites are places of civic engagement that can become central institutions of a thriving and stable democracy.

The report's authors include Sebastian Brett, Louis Bickford, Liz Ševčenko and Marcela Rios. The Memorialization and Democracy conference was organized by FLACSO-Chile, the ICTJ, and the International Coalition of Historic Site Museums of Conscience, and its Chilean counterpart, the Villa Grimaldi Peace Park Corporation.

Colombia: Truth and the Palace of Justice

A truth commission investigating the 1985 attack on Colombia's Palace of Justice has launched a website to encourage public participation as the commission prepares a final report scheduled for release in 2009. With technical support from the ICTJ, the commission is investigating the events of November  6-7, 1985, when members of the "April 9 Movement" (the guerilla group also known as M-19) forced their way into the Colombian Supreme Court and the State Council, taking judges and staff members hostage.

Some hundred people were killed, including eleven supreme court justices, in a battle that involved the guerrillas as well as government forces. A dozen other people remain unaccounted for.

Established by Colombia's Supreme Court of Justice, the truth commission is a nonjudicial research group. Commission members are three former chairmen of the court: Jorge Anibal Gomez Gallego, Jose Roberto Herrera Vergara and Nilson Pinilla Pinilla. The commission submitted a preliminary report in 2006 and a supplement in 2007.

The commission's new web site, www.verdadpalacio.org.co, is part of an effort to increase public participation in the commission's work as it prepares a final report. The commission will also conduct public hearings this year. The website, which has public documents related to the 1985 attack, invites witnesses to participate through a "contribution to the truth" link.

The commission can contribute to truth and social memory in Colombia, and may also pave the way for a future truth commission focused on investigating a generation of violence.