A tough first year for South Sudan
In August, a little over a year after South Sudan’s declaration of independence from the North, the two Sudans tentatively agreed a deal that might just ensure that the newly established Nation reaches its second birthday.
Professor Steven Chan, OBE, an Africa specialist and academic at the School of Oriental and African Studies (SOAS) in London, has been closely following South Sudan’s baby steps from its declaration of independence in July 2011. He describes progress as a ‘mixed bag… as the international community always knew it would be,’ and points to continuing issues in the country, such as lack of transparency, lack of infrastructure, and the continued militarised footing of the South Sudanese government.
Unfortunately, the sharing of oil resources between South Sudan (which controls production) and Sudan (which controls transit) has been far from harmonious. In January 2012, a combination of skirmishes in the border areas, and wildly differing notions as to the price the South should pay the North for transiting oil to international markets, led to the South closing down production, to the economic detriment of both parties.
Under the terms of the early August agreement, a price for oil transit at just under $10 per barrel was agreed and Juba is to pay Khartoum around $3bn as a one-off payment to compensate for unpaid transit fees to date. The agreement is some way from being sealed: the two sides are also seeking to reach a deal on border security.
‘There are a number of militia leaders who, under the terms of the peace deal, were not included within South Sudan and have been effectively left to hang out to dry in the border areas of the North. That’s certainly a cause of tension,’ Chan told Global Insight, adding that within South Sudan itself, ‘political leaders’ have built constituencies based ‘…on violence and cattle rustling,’ with long term implications for security and political inclusion
Despite the near-overwhelming political and economic obstacles presented to South Sudan, the United Nations Development Program (UNDP) has praised the moderate progress that has been made, not just in the past year but since the commencement of the Comprehensive Peace Agreement brokered in 2005. Singled out in the UNDP’s report are the establishment of government ministries and state governments, the tripling in the number of children attending primary school, and the construction of up to 6,000 kilometres of roads
Nonetheless, as the UNDP also points out, the remaining challenges are significant. Pressing development needs, corruption and human rights abuses all require careful attention
South Sudan does enjoy substantial championing by the international community, which worked hard to secure its existence. There are political reasons for this at play; the United States maintains the deep suspicions of Khartoum that it has long harboured. But support for the South will be corroded if Juba fails to tackle its governance
This it knows. In June, the country’s Stetson-wearing President Salva Kiir sent a letter to 75 serving and former government employees asking them to return a total of $4bn, which, he said, they had stolen. Juba’s parliament suspended accused serving officials pending resolution of the accusations. The uncompromising letter read:
‘We fought for freedom, justice and equality… Yet once we got to power, we forgot what we fought for and began to enrich ourselves instead of our people.’
The optimism attendant at South Sudan’s birth has yet to be exhausted, but will soon be looking for a source of renewal. Chan believes the future is in the balance: ‘There are some very serious people in the government who are working hard to overcome difficulties, which anyone would find extremely challenging. But there are also greedy opportunists with guns.’
Read the full story at tinyurl.com/SouthSudan1.
Ocampo: Libya has the right to try Gaddafi
Libya should be granted the right to try Saif al-Islam Gaddafi in domestic courts, the former chief prosecutor of the International Criminal Court (ICC) has said – despite the fact that the country is yet to convince the Court that it can grant the former dictator’s son a fair trial. Under Libyan law, Gaddafi could face execution if found guilty.
Gaddafi and former intelligence chief Abdullah al-Senussi are wanted by the ICC for two counts of crimes against humanity – murder and persecution – committed since the start of the revolution in February 2011. Gaddafi is being held by the Zintan fighters who captured him, while al-Senussi was recently extradited back to Libya from Mauritania, where he fled last September. In defiance of the Hague court’s judicial process, Libyan officials originally announced a September trial date for Gaddafi, but have postponed the trial following the arrest of al-Senussi, who they hope can provide further information.
Because a warrant was issued by the ICC in 2011, the Libyan authorities are obliged to provide evidence to the ICC Pre-Trial Chamber to show why they should have jurisdiction. Under ICC rules, the Libyan authorities need to prove the existence of a national investigation, and show that they are both willing and able to carry out a trial ‘genuinely’.
The Chamber has confirmed that it is waiting for further information from Libya and is yet to make a decision.
Former chief prosecutor Luis Moreno Ocampo concedes that Libya needs permission from the ICC judges, but believes the Libyans have clear jurisdiction over the case.
‘The ICC is not an appeal court and the primacy is with Libya, the national system,’ he says, speaking exclusively to IBA Global Insight. ‘And this is what the ICC should decide.’
He adds: ‘The new government wants to show to the world that they can do justice here. For them, it is a matter of pride and dignity that they can conduct this themselves.’
Ocampo has previously been criticised for bias in favour of the Libyan authorities.
Complementarity and due process
Under the ICC’s principle of complementarity, the Court can only accept jurisdiction when a Member State is unable or unwilling to do so itself.
Richard Goldstone, former chief prosecutor of the International Criminal Tribunal of the former Yugoslavia and the International Criminal Tribunal for Rwanda, is not convinced that the country is ready to hold a trial. He points out that announcing a trial before a decision has been made by the ICC is in violation of the Security Council resolution that referred the situation to the Court. ‘From what I understand, the Libyans are in no position to afford Gaddafi a fair trial,’ he says. ‘The absence of a defence counsel is just one part of this.’
The threshold for what constitutes a fair trial in Libya is up to the discretion of the ICC judges. There are no guidelines in the Rome Statute, which brought the ICC into being, outlining what is acceptable. The only regulations concerning due process are associated with the prevention of immunity – when a state chooses to shield the accused – and not with potential violations that may make it easier to convict.
In its report on the situation in Libya on 4 June 2012, ICC Pre-Trial Chamber I states: ‘The view expressed repeatedly [during Rome Statute negotiations] was that the ICC should not function as a court of appeal on national decisions based on alleged deviations from applicable human rights norms […]. Most delegates were concerned with sham or ineffective proceedings and thought that the problem of overly harsh national proceedings was one that could be taken up with a human rights body, not the ICC.’
The reason for this, Ocampo says, was to avoid complications from a clash of different legal systems. What might be acceptable in one system, such as having anonymous witnesses, might be unacceptable in another. ‘A fair trial is important and there should be some basic conditions, but when you go further it is more complicated. The main point is that people in power are killing with impunity and nothing happens. That is the incredible change we are seeing. A new rule of law is starting in the world.’
International law experts insist, however, that the ICC must consider recognised due process standards when making decisions on jurisdiction. ‘There are basic fair trial standards at an international level,’ says David Michael Crane, founding chief prosecutor of the Special Court for Sierra Leone. ‘Openness, fairness and an opportunity to be heard and represented are fundamental.’
To prove its case to the Chamber, Libya must show that its national investigation is covering ‘substantially the same conduct’ as alleged in the proceedings before the ICC. The charges do not need to have the same label as those before the Court, and there is no requirement for states to adopt legislation incorporating international crimes into national law.
There are also no rules on sentencing, and national courts – unlike the ICC – have the right to impose the death penalty. Under Libyan law, both Gaddafi and al-Senussi could face execution if found guilty.
Read the full story at tinyurl.com/GaddafiICC.
IBAHRI publishes report on Malawi’s road to recovery and holds high-level discussion on progress and challenges
In a report released 3 September 2012, the IBAHRI concluded that the state of the rule of law in Malawi is ‘on the road to recovery’ but that some important issues still need to be remedied in order for Malawi to fully restore the rule of law. To mark the publication of Rule of Law in Malawi: The Road to Recovery, the IBAHRI hosted a high-level panel discussion in Lilongwe, Malawi.
The delegation was mandated to investigate serious concerns regarding violations of the rule of law, particularly the separation of powers, the Executive’s disregard for the Constitution, and lack of observance for basic human rights. Since the delegation’s visit to Malawi and the change in Presidency, Malawi has made significant progress in respect for the rule of law. Nonetheless, the IBAHRI report highlights further challenges and makes recommendations to continue on the journey of recovery.
A full list of findings and recommendations is available via the IBA website at tinyurl.com/MalawiReport2012.
To read more about the panel discussion visit tinyurl.com/MalawiReport2012Panel.
IBAHRI to participate in the Regional Congress on the Death Penalty in Morocco
The IBAHRI will hold a seminar for the Moroccan legal profession, entitled Lawyers and the abolition of the death penalty in Morocco, as part of the as part of the Regional Congress on the death penalty. The IBAHRI aims to engage the legal profession in efforts to abolish the death penalty in law in Morocco. The country is one of five Arab states which have observed an unofficial moratorium on executions for over a decade with the last execution in Morocco taking place in 1993. Morocco has a strong abolitionist movement, mostly led by the Moroccan Coalition Against the Death Penalty. Established in 2003, the Moroccan coalition has seven member organisations, including the Moroccan Bar Association.
The regional congress against the death penalty will take place on 18–20 October 2012 at the Moroccan National Library. The Congress is organised by the abolitionist organisation Ensemble Contre la Peine de Mort (ECPM), in partnership with the Organisation Maroccaine des Droits de l’Homme, the International Bar Association’s Human Rights Institute (IBAHRI) and in association with the Coalition Marocaine Contre la Peine de Mort (CMCPM).
If you wish to attend the seminar, or the Regional Congress, it is necessary to register. Registration is free but compulsory. Please visit the website at tinyurl.com/RabatDeathPenalty. If you would like any more information about the IBAHRI seminar please contact email@example.com or firstname.lastname@example.org.
Hungary: IBAHRI fact-finding report highlights concern over the threat to the independence of the judiciary and rule of law
In a report published on 10 September 2012 – Courting Controversy: the Impact of the Recent Reforms on the Independence of the Judiciary and the Rule of Law in Hungary – the IBAHRI called on the Government of Hungary to respect the decision of the country’s Constitutional Court and to repeal the new legislative provisions that lowered the mandatory age of retirement for judges to 62 years, forcing the immediate retirement of more than 270 justices.
The report contains the findings and recommendations of the high-level IBAHRI delegation’s fact-finding visit to Hungary to examine the impact of a series of controversial legislative reforms, including a new Constitution, which came into force at the beginning of 2012. At the end of its visit, in March 2012, the delegation concluded that although the rationale behind the reforms as presented by the Hungarian government – to make the operation of the judicial system faster and more efficient – is to be welcomed, several of the specific legislative solutions as they then stood, seriously threatened the institutional guarantees of judicial independence. Subsequent to the delegation’s visit, the Hungarian Parliament passed legislation, in July 2012, addressing some of the main concerns regarding the independence of the judiciary, particularly in relation to the sweeping powers of the President of the newly-created National Judicial Office. While, generally, the legislative amendments introduced are considered improvements to some of the worst aspects of the reforms, the IBAHRI stresses that significant areas of concern remain.
A full list of findings and recommendations is available via the IBA website at tinyurl.com/HungaryReport2012.
IBAHRI Director, Dr Phillip Tahmindjis, receives the Member of the Order of Australia Award
The IBAHRI congratulates Dr Phillip Tahmindjis, Director of the Institute, on being awarded the Member of the Order of Australia (AM) for service to the international community, and to the law, as a contributor and advocate for the promotion and protection of human rights.
Dr Tahmindjis, who has worked determinedly throughout his career on human rights, justice and rule of law issues, was conferred with Order of Australia on 21 September 2012 at Government House, Canberra. He has considerable experience in capacity building for bar associations, in particular, in Afghanistan, Swaziland, and East Timor. He has also undertaken human rights training for lawyers in Iraq, Libya, Palestine, and the Former Yugoslavia, and has compiled a Human Rights Training Manual in conjunction with the UN High Commission for Human Rights. He has conducted human rights fact finding missions to Russia, Pakistan, and Syria, and coordinated the project to establish global guidelines for human rights fact finding. He is also a trustee of the Southern Africa Litigation Centre.
Dr Tahmindjis has been a consultant to private industry and government with respect to the implementation of human rights (particularly with respect to anti-discrimination measures) and is the editor of four books and the author of several articles in this area, including Sexuality and Human Rights: A Global Overview.
He has held executive positions in several organisations, including President of the Queensland branch of Amnesty International, Trustee of the Queensland AIDS Council, and Vice-President of the International Lesbian and Gay Lawyers Association. He has been awarded the Queensland Premier’s Citation for contributions to law reform, the Queensland Equal Opportunity Practitioners’ Association Prize for compiling the International Guidelines for Non-Discrimination in Legal Practice, and the QUT Prize for Outstanding Professional Achievement for his consultancy work in human rights.
IBAHRI releases film on human rights violations of young offenders in Brazil
As part of its ongoing combating torture project in Brazil, the IBAHRI has released a short film entitled The Forgotten: FEBEM, Young Offenders and Human Rights Violations in Brazil. FEBEM is a former young offenders’ prison in São Paulo that, in the 1990s, saw violent rebellions caused by institutionalised torture and ill-treatment. Prosecutor Wilson Tafner explains the story of FEBEM and how the legal profession and civil society came together to address these issues. The film includes images of a graphic nature that may be disturbing to some viewers.