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The observatory monitors developments in transitional justice processes undertaken in societies to deal with the past abuses of human rights, both in countries that face or have faced armed conflicts as well as in states in which abuses have been linked to political regimes. It can facilitate the identification of external opportunities of support to local processes, learned lessons to be used in other contexts, as well as of challenges to be overcome. Contributing to the dissemination of research on transitional justice and to the advancement of human rights are two of the main purposes of the Observatory of Transitional Justice. With the support of the Norwegian Ministry of Foreign Affairs.


Transitional Justice Observatory - nº 36 December 2015


    International Criminal Court (ICC)
CONGO, RD: Lubanga and Katanga transferred to the DRC to serve their sentences of imprisonment
The ICC transferred Thomas Lubanga Dyilo and Germain Katanga to a prison in DR Congo to serve their respective sentences of imprisonment. The decision was taken at the beginning of the month, taking into consideration that Lubanga and Katanga had both expressed a preference to serve their respective sentences in the DR Congo. It was stressed that the imprisonment shall be subject to the supervision of the Court and be consistent with international standards governing the treatment of prisoners. Lubanga was sentenced in July 2012 to 14 years of imprisonment for war crimes (conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities). As he has been detained at the ICC Detention Centre in The Hague since March 2006, he is to be in custody in DR Congo for six more years. Katanga was sentenced in May 2014 to 12 years of imprisonment for one count of crime against humanity (murder) and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging) committed in February 2003 during the attack on the village of Bogoro, in the Ituri district of the DR Congo. In November 2015 the ICC Appeals Chamber decided to reduce his sentence and to release him in January 2016. This is the first time that the ICC has designated a State for the enforcement of prison sentences. (ICC, 19/12/15)
    Ad Hoc International Criminal Tribunals
CAMBODIA: Meas Muth charged with genocide and crimes against humanity
In Case 003 the Extraordinary Chambers in the Courts of Cambodia (ECCC) charged the former Navy Commander of the Khmer Rouge, Meas Muth, with genocide, crimes against humanity (murder, extermination, enslavement, imprisonment, torture, persecution and other inhumane acts); grave breaches of the Geneva Conventions of 1949 (wilful killing, wilfully causing great suffering or serious injury to body or health, torture and unlawful confinement of civilians), and violations of the 1956 Cambodian Penal Code (premeditated homicide). The crimes were allegedly committed at various locations, including security centres, worksites and execution sites. Muth appeared voluntarily to hear the charges against him. An arrest warrant had been issued in December 2014, although Cambodian police had refused to arrest him, and he was charged in absentia in March 2015. The Khmer Rouge regime (1975-1979) caused the death of between 1.4 and 2.2 million Cambodians and others, the vast majority by extrajudicial executions, torture, starvation, and disease. (ECCC, Jurist, 14/12/15; Cambodia Daily, 15/12/15)
CENTRAL AFRICAN REPUBLIC: More efforts needed to establish the special criminal court, 23 human rights organizations say
According to 23 Central African and international human rights organizations, the Central African Republic (CAR) transitional government, the United Nations, and donors should step up their efforts to establish a Special Criminal Court in the country. Some progress has been made by the transitional government, such as providing a building for the court’s first investigations, preparing some decrees required for the court to function, and developing job descriptions for recruiting the court’s future staff. The UN has also supported this process by sending a team of experts to assess the logistical and financial needs of the court, and by preparing a project plan to support its establishment. But, according to the organizations, the Central African justice system is still too weak to investigate and prosecute such crimes, and needs therefore to make more efforts to end impunity. The recommendations to that end include: mandating an existing steering committee to develop a common vision of the Special Criminal Court and to guide all of the measures needed to get the court up and running; searching for funding; recruiting international experts; and cooperating with the International Criminal Court (ICC), which is also conducting investigations in the CAR, but will most likely only prosecute a few suspects. To address the grave human rights violations in the CAR the transitional government passed a law in June 2015 to establish a Special Criminal Court inside the national judicial system, with national and international staff, to investigate and prosecute the most severe crimes committed in the country since 2003, including war crimes and crimes against humanity. (AI, HRW, FIDH, 23/12/15)
BALKANS: ICTY unveils arrest warrants for three involved in Šešelj trial
The International Criminal Tribunal for the former Yugoslavia (ICTY) has unveiled arrest warrants against 3 people involved in the Vojislav Šešelj trial, Petar Jojić, Jovo Ostojić and Vjerica Radeta. The two defence lawyers and an associate of Šešelj are suspected of threatening, intimidating, offering bribes of 500 euros, or otherwise interfering with two witnesses so that they would not testify in the trial against Šešelj. The arrest warrants for the three accused were issued confidentially in January 2015, but have not been executed by Serbia to date. Vojislav Šešelj is charged with nine counts of leading Serbs in the persecution of other communities during the Croatia and Bosnia wars in the 1990s. Several incidents have delayed his controversial trial, such as Šešelj’s cancer treatment, radical nationalistic statements on the news, or his statement that he would not return voluntarily to The Hague after his treatment. Šešelj’s verdict was planned for October 2013, but was postponed after one of the judges was removed for alleged bias. The new arrest warrants indicate the case will probably last much longer. In a different case, the appeals chamber of the ICTY has ordered the retrial of Jovica Stanišić and Franko Simatović, two Serbian officials accused of war crimes and acquitted in May 2013 for failing to establish the charges beyond a reasonable doubt. The Appeals chamber has now found procedural errors and has ordered a new trial. (ICTY, 01/12/15; Balkan Transitional Justice 02/12/15; Jurist, 04/12/15; 15/12/15)
RWANDA: ICTR closes down after indicting 93 people and sentencing 61
The International Criminal Tribunal for Rwanda (ICTR) organized a celebration in its headquarters in Arusha, Tanzania, to mark its closure. Since the creation of the tribunal in 1994, at least 93 indictments were made with 61 people being sentenced; 14 acquitted; ten sent to Rwanda for trial; three died; two had their cases withdrawn and three others were transferred to the Mechanism for International Criminal Tribunal (MICT) which has a short mandate to finish the ICTR’s work. Nine of the indicted remain at large. Most of those indicted were senior government officials, military chiefs, businesspeople, priests and journalists, and include high-ranking representatives such as former Prime Minister Jean Kambanda, former Chief of Staff of the Army, Augustin Bizimungu, and the former Minister of Defence, Théoneste Basogora. The ICTR was the world’s first non-permanent UN tribunal. It was set up in 1994 to deal with international crimes and contributed significantly to the fight against impunity and to the development of international law regarding genocide with the inclusion of rape as one of its forms. Its work has been particularly challenging since the fact that it was created before the establishment of the ICC meant that international jurisprudence was altogether insufficient. The umbrella organization of Genocide survivors, Ibuka, has expressed its frustration over the failure of the ICTR to cooperate with survivors, the treatment of witnesses, some of the tribunal’s rulings, the tribunal’s refusal to grant the survivors complete access to some of the court’s documentations, or the fact that an International Trust Fund for reparation to Genocide survivors was never set up as previously agreed. Human Rights Watch has also criticized that very few members of the Rwandan Patriotic Front, including current President Paul Kagame, have been prosecuted. Other mechanisms have contributed to transitional justice in Rwanda, such as the controversial Gacaca tribunals to foster reconciliation, and the prosecution by tribunals in Belgium, Canada, Finland, France, Germany, Norway, The Netherlands, Sweden and Switzerland under the principle of universal jurisdiction. (New Times, 02/12/15; El Pais, 26/12/15)
    Ordinary Justice and Traditional Justice Systems
BURKINA FASO: Military court issues arrest warrant for former president Compaoré for the assassination of previous leader Sankara
At the beginning of the month, the Prosecutor at the Military Court, Colonel Sita Sangare, has charged General Gilbert Diendéré, commander of the Presidential Guard in 1987, for complicity in the 1987 assassination of former president Thomas Sankara. Diendéré was already in prison for his participation in an attempted coup in the country in September 2015. By the end of the month a military court had also issued an international arrest warrant for former president Compaoré on the same charges. Thomas Sankara was a revolutionary leader that ruled the country from 1983 until he was assassinated in 1987 along with 12 other commanders. After the 1987 coup Blaise Compaoré ruled the country until he was forced to resign due to street protests in October 2014. Compaoré’s resignation has opened the door to investigations over Sankara’s death, including the exhumation of his body in October 2015. Former President Compaoré, who has been in exile in Côte d’Ivoire since October 2015, has denied the accusations. In parallel, the DNA analysis of the supposed remains of Sankara’s body, exhumed in May 2015 together with 12 other bodies, has not been able to certify the existence of DNA. The analysis of the remains, which has not been able to guarantee that the body was Sankara’s, was conducted in France. (France24, 07/12/15, Jurist, 08/12/15, 22/12/15; Jeune Afrique, AP, 21/12/15)
FRANCE – CÒTE D’IVOIRE: Soro’s arrest warrant dropped by France due to diplomatic immunity
A French judge has dropped his warrant for the arrest of Côte d’Ivoire’s Speaker of the National Assembly, Guillaume Soro. Soro was accused in 2012 by Michel Gbagbo, the son of the former President of Côte d’Ivoire, of kidnapping and torturing him after his father, Laurent Gbagbo, was captured. Michel Gbagbo accused Soro in a court in France thanks to his French citizenship. The arrest warrant was issued in the first half of December, when Soro was in Paris, France, to attend the UN climate summit COP21, but was immediately lifted considering that Soro was on an official mission in France, and therefore had diplomatic immunity. Soro is one of the few people facing investigation from the current President Ouattara's side of the conflict, while hundreds of Gbagbo supporters have been investigated for the post-electoral violence in 2010. Some 3,000 people were killed in the five-month conflict that erupted between Gbagbo and Ouattara supporters after Gbagbo’s electoral defeat. (Le Monde, 08/12/15; BBC, 09/12/15)
RWANDA – CONGO, DR: DR Congo arrests Ntaganzwa, one of the top fugitive suspects of the Rwandan genocide
Authorities in the DR Congo have arrested Ladislas Ntaganzwa, former mayor of Nyakizu, Rwanda, who is accused of nine counts of genocide and crimes against humanity for allegedly organising the massacre of thousands of Tutsis at various locations, for orchestrating rape and sexual violence committed against many women, for making speeches calling for the elimination of the Tutsis in the region and for facilitating the killing of Tutsi refugees. Ntaganzwa is one of the nine top fugitive Rwandan genocide suspects, and a five million dollar reward was offered by the US State Department under the War Crimes Rewards Programme for information leading to his arrest. Initially wanted for trial at the International Criminal Tribunal for Rwanda (ICTR), based in Arusha, Tanzania, his case was transferred to Rwanda in 2012 to the Mechanism for International Criminal Tribunals (MICT), which continues with the work of the ICTR. The eight other fugitives from the Rwandan genocide sought by the ICTR-MICT that remain at large are: Félicien Kabuga, Augustin Bizimana, Protais Mpiranya, Fulgence Kayishema, Phineas Munyarugarama, Aloys Ndimbati, Charles Ryandikayo, and Charles Sikubwabo. (AFP, 10/12/15; Le Monde, 14/12/15)
    Truth commissions
CANADA: After the release of the final report, Prime Minister Trudeau commits to all recommendations
The Truth and Reconciliation Commission has made public its final report “Honouring the Truth, Reconciling for the Future”, which found that Canada's residential school system amounted to cultural genocide. The 4,000-page report, which has gathered testimonies in more than 300 communities over a six year period, highlights serious concerns for First Nations, Inuit and Métis children and youth since they are over-represented in Canada's prisons and child welfare system, they die at a higher rate than the general population and many have been buried in unmarked graves. The report also points out that less than 50 former residential school staff members have been convicted for sexual or physical abuse of indigenous students, while 37,951 claims for compensation have been filed by survivors; and that substantial harm was done to Métis children who attended residential schools, but the Métis people were excluded from the Indian Residential Schools Settlement Agreement. The reconciliation process should, therefore, address this damage. After the presentation of the report Prime Minister Justin Trudeau fully accepted the Government’s responsibilities and committed to implementing all of the recommendations, beginning with a government inquiry to investigate missing and murdered indigenous women, the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, and a pledge to work with indigenous leaders on a national reconciliation framework. A summary report released by the commission in June 2015 made 94 recommendations. From 1874 to 1996, 150,000 aboriginal children were abducted from their families and forcibly enrolled in 132 boarding schools run by Christian churches, where many suffered systematic physical abuse and violations of their cultural rights. (CBC News, 14/12/15; BBC, 16/12/15)
    Truth seeking investigations
CROATIA: 56 bodies exhumed from a mass grave to identify missing persons from the 1995 Operation Storm
Croatian authorities have collected the remains of 56 bodies from a mass grave next to the Gornje Seliste municipality cemetery for DNA analysis. Representatives of the Serbian Commission for Missing Persons and the International Commission for Missing Persons (from Bosnia) were present during the one-week long exhumation. Families will be invited in three or four months to identify the remains. The bodies are likely to be Croatian Serb civilians and soldiers killed after the Operation Storm, launched by the Croatian military in August 1995, that took place during the armed conflict in Croatia (1991-1995). After the attack 600 people, mostly elderly Serb civilians, were killed, 20,000 buildings were burned, and more than 200,000 Serbs had to flee the country. 1,500 persons are still missing from the armed conflict. In August 2015 ceremonies to commemorate the 20th anniversary of Operation Storm led to a new confrontation between the former opposing actors, with strong nationalistic statements, mostly from the Croatian side, that included hate declarations. (Balkan Transitional Justice, 02/12/15; B92, 09/12/15; Balkan Transitional Justice, 31/12/15)
    Redress
KOREA, REP – JAPAN: Historic deal on WWII sexual slaves establishes official reparations and eight million dollar reparation fund
The governments of Japan and South Korea have reached a historic deal to settle the issue of “comfort women", women forced into sexual slavery during World War Two. Under the agreement, the Japanese government will apologise and accept Japan’s "deep responsibility" for the issue and will pay one billion yen (8.3 million dollars) to a South Korean fund for victims; South Korea will consider the matter finally and irreversibly resolved, and will also look at the possibility of removing a statue symbolising “comfort women” erected by activists outside the Japanese embassy in Seoul in 2011. Both sides will also refrain from criticising each other on this issue. In November 2015, South Korean President Park Geun-Hye and Japanese Prime Minister Shinzo Abe held an official meeting in Seoul, Korea, in which the leaders agreed to resolve the dispute. Until now, Japan had argued it had already repaired the victims by normalizing diplomatic ties between the two countries and providing more than 800 million dollars in economic aid and loans to South Korea in 1965, and by acknowledging its responsibility in a 1993 statement by the then-chief cabinet secretary Yohei Kono. A fund for victims was also set up in 1995 for ten years, but money came from private donations and not from the Japanese government. It is estimated that up to 200,000 women, many of them Korean, but also from China, the Philippines, Indonesia and Taiwan, were sexually enslaved by Japan during WW2. Only 46 "comfort women" are still alive in South Korea, but many women have been campaigning for years for compensation and a stronger apology, with weekly demonstrations outside the Japanese embassy in Seoul. A few days after the agreement, the President of Taiwan, Ma Ying-jeou, also demanded compensations. (BBC, 28, 29/12/15)
TIMOR LESTE: UN expert group urges the government to ensure comprehensive reparations for victims of conflict-related sexual violence
The UN Committee on the Elimination of Discrimination against Women (the CEDAW Committee), the body tasked with reviewing the implementation of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), has raised concerns about the on-going failure by the government of Timor-Leste to adopt laws to ensure comprehensive reparation for survivors of rape and other forms of sexual violence that occurred during the Indonesian occupation (1975-1999) and the 1999 independence referendum. Recognising the efforts to establish a “survivor healing programme”, the Committee is however concerned that survivors of sexual violence continue to experience social stigma and ostracism and that the bills to establish the National Reparation Programme and the Public Memory Institute, which were submitted to the Parliament in July 2010, have still not been passed. The CEDAW recommends that the Timor-Leste authorities ensure there will be no impunity for rape, sexual slavery and other forms of sexual violence committed during the Indonesian occupation, and to implement the recommendations of the reports by the Commission for Reception, Truth and Reconciliation (CAVR) and the Commission on Truth and Friendship (CTF) regarding redress for women and girls who were victims of violations during the occupation. (CEDAW, 20/11/15 CEDAW/C/TLS/CO/2-3; AI, 01/12/15)
    Institutional reform
MYANMAR: The new NLD government faces transitional justice challenges
After its election victory in November 2015, the National League for Democracy opposition party (NLD), lead by Aung San Suu Kyi, has held talks with the country's outgoing President Thein Sein and with General Min Aung Hlaing, Myanmar's military commander, to guarantee a peaceful transfer of power. A paper by the International Center for Transitional Justice blames the old systems of oppression and the legacy of impunity as some of the biggest barriers to the future of the country, and identifies steps for the government and civil society groups that must be taken to address transitional justice. The new government faces a delicate challenge to build trust and national reconciliation after almost 50 years of military rule. While, on the one hand, a constitutional amnesty for members of current and previous governments covers all acts committed in office, and top leaders being worried about their retributions, on the other hand, civil society organizations want to begin to address the past and demand justice for past human rights violations. Some of the suggestions for the new government include small steps to deal with the impact of the past, such as allowing organizations that assist victims to do their work without interference and ensuring that survivors have access to adequate state services; apologies and acknowledgment of past human rights violations; the return and reintegration of internally displaced persons and the release of detainees charged with “unlawful association”. (Al-Jazeera, 02/12/15; ICTJ, 09/12/15)
    Peace talks
COLOMBIA: The deal on Victims sets up a comprehensive system
The Government of Colombia and the opposition group Revolutionary Armed Forces of Colombia (FARC) have agreed on point five of the negotiating agenda which refers to the victims of the armed conflict. The deal, called “Comprehensive system for Truth, Justice, Reparation and guarantee of Non Recurrence” establishes numerous measures. Truth will be addressed by the establishment of an extra-judicial Truth Commission which will only deal with the most relevant cases, to recognize the suffering of the victims and the perpetrators’ responsibilities, but without the possibility of judicial prosecution. Truth seeking will also be the responsibility of a Special Unit that will search for persons that had disappeared due to the armed conflict. As partly agreed in September 2015, Justice will be sought by a Special Jurisdiction for Peace, including a Tribunal for Peace and an Amnesty and Reprieve Chamber. Amnesty will be granted for political crimes, although, according to international standards, crimes against humanity, genocide and war crimes will be prosecuted. Those considered guilty will face penalties such as restriction of movement and reparation work. Reparation measures, which need to be considered comprehensively together with measures of truth, justice and non-recurrence, will include material reparation by the FARC, individual recognition of responsibilities by the FARC and government representatives, and land restitution and support of displaced people. FARC members who have committed crimes which are not entitled to amnesty but recognize their responsibility will participate in 2- to 8-year reparation programs such as demining work, planting new crops in coca growing zones, helping to locate missing persons, reforestation, etc. Those who will refuse to say the truth or to recognize their responsibilities will be subject to prison. Guarantees of Non-Recurrence will be undertaken through the implementation of all the other measures, and additional measures defined in other agreements reached in point three of the negotiating agenda (“End of the conflict”). The Havana negotiators heard the testimonies of 70 victims, including 18 women’s organizations and 10 experts on sexual violence. More than 3,000 other victims had also participated in forums organized by UNDP and the National University in four regions of the country. (El Espectador, 15/12/15; El Tiempo, 16/12/15)

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