Reporting Justice - Coalition for the International Criminal Court

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Reporting Justice - Coalition for the International Criminal Court

REPORTING JUSTICE:A HANDBOOK ON COVERINGWAR CRIMES COURTSThis book is dedicated to the dozens of frontline journalists who have lost their livesin recent conflicts while reporting on the human consequences of war.


The Institute for War & Peace Reporting builds peace and democracy throughfree and fair media. Programmes include reporting, training and institutionalcapacity building projects for local media in areas of crisis and conflict.IWPR is an international network of not-for-profit organisations. This book is a projectof IWPR – Africa.IWPR - Africa, 1st Floor, 5 Wellington Road, Parktown, 2193, Johannesburg, South AfricaIWPR – US, 1325 G Street, NW, Suite 500, Washington, DC 20005, United StatesIWPR – Europe, 48 Gray’s Inn Road, London WC1X 8LT, United Kingdomwww.iwpr.netWritten by Stacy Sullivan and Janet AndersonWith editing and contributions from Anthony Borden, Vera Frankl and John MacLeodPhotography by Marcus Bleasdale and IWPR ContributorsDesign by Lylaani DixonCover by Srdan PajicProject co-ordination by Jon Campbell and Duncan Furey2006 © Institute for War & Peace ReportingISBN Number: 1-902811-11-9IWPR gratefully acknowledges support from the Human Security Program of theCanadian Department of Foreign Affairs and International Trade for the publication ofthis training manual. This manual has been produced as part of IWPR’s GlobalJustice Reporting. The programme strengthens local reporting on internationaljustice mechanisms in post-conflict countries through reporting, training, dialogueand capacity-building activities.For further information on IWPR, or to support its work, see: www.iwpr.net


CONTENTSIntroduction 41 The Fight Against Impunity 62 The Tribunals 103 In the Courtroom 164 Procedure 225 Court Reporting 286 Conflict Reporting 327 Alternative Justice Mechanisms 388 The Law 42AppendixI. Examples of Court and Other Reports 48II. International Humanitarian Law Documents 52Hague Conventions 52Geneva Conventions 53Genocide Convention 59Rome Statute of the International Criminal Court 60III. Information Resources & Contacts 63IV. Answers to Exercises 64


INTRODUCTIONThis handbook is intended for journalists undertaking one of the most challenging, important andpotentially rewarding of tasks: reporting on the trials of war crimes suspects or investigating warcrimes on the ground.War crimes reporting, like any journalistic specialisation, makes its own demands and has its ownrules. The historical background, procedures and law must be understood.There are many reasons you may want to report on justice: you may have witnessed crimes beingcommitted; you may feel your country or community has suffered war crimes; you may believe that yourcountry or community has been engaged in war crimes and can only build a decent future by revealingand addressing past wrongs.Whatever drives you to report on justice, you need to have the tools to do it. That is what thishandbook sets out to provide.Reporting Justice: A Handbook for Journalists introduces you to the various kinds of courts in whichwar crimes are tried; gives an outline of the history of the courts; explains the body of international lawunder which the courts operate; details how war crimes trials work; and explores the actual process ofreporting both in the courts and on the ground.The handbook is designed either to support formal training sessions with humanitarian law expertsand experienced journalist trainers or to be used on its own for independent study and review.The boxes in each chapter are intended to make the sometimes complex information easier to digest.Extended appendices provide basic humanitarian law documents and suggested online resources forfurther study and research.The purpose of this book is to support countries emerging from war by improving publicunderstanding of international and other justice processes. Strengthening the skills of individual reportersand editors will increase responsible and reliable reporting on justice issues and make a majorcontribution to the process.The book’s success, therefore, lies with you as a journalist, and the important work you will do in yourown country in the months and years ahead.Anthony BordenExecutive DirectorResidents of Fataki a village in Eastern Congo flee south from Lendu militias.Credit: Marcus Bleasdale4 ■ REPORTING JUSTICE


CHAPTER 1 – THE FIGHT AGAINST IMPUNITYWhat Is a War Crime?The term “war crime” is often used to describe anatrocity committed during a war, but the legaldefinition is more specific: a war crime is a seriousviolation of international humanitarian law, thebody of law that defines what is and is notpermitted during an armed conflict.There is no single document, or even auniversally agreed definition, of internationalhumanitarian law. Instead, it is a mixture ofmultilateral treaties, United Nations SecurityCouncil resolutions, behavioural norms of states(customary law), and precedents set by variousinternational courts.These laws do not regulate whether a statemay use force. Instead, they apply to individualsonce an armed conflict is under way. Their aim isto limit civilian casualties and to minimisesuffering.War crimes courts are set up to enforce theselaws. These courts have five basic aims, to:■■■■■Try those accused of committing grave crimes,and punish those found to be responsibleBring justice to the victims of those crimesDeter future crimesEstablish the facts to pave the way forreconciliationStrengthen the rule of lawThe Role of the ReporterWar crimes courts can only achieve these goals ifpeople are made aware of what they are doing. Itis your job as a journalist to inform the publicresponsibly and reliably. That means undertakingyour work without catering to prejudices held byeither the winners or losers of conflicts. Victimsmay tend to assume that all suspects are guilty;the accused may assert that the court itself isinvalid or incompetent.It is your job to see through these competingbiases and provide a fair and balancedpresentation of the facts emerging from the trials.As a journalist, you must also keep a careful eyeon the workings of the courts and draw attentionto their shortcomings, as well as acknowledgetheir accomplishments. Press criticism may forcethe courts to operate more openly, fairly andeffectively, yet relentless critiques can build upunjustified cynicism and suspicion of a courtamong the population at large.One of the difficulties for journalists coveringinternational tribunals and other justicemechanisms is that the institutions, the field andthe law itself are still emerging, and they aredeveloping quickly. This makes the subjectdynamic and very exciting. Decisions now canhave a significant impact not only on theperpetrators and victims involved in a case, andon the country as a whole, but also on the broaderfield of international humanitarian law and theglobal effort to bring war criminals to justice.The fact that the field is so new can alsocreate confusion. The various courts currentlyoperating have each been set up differently,because they represent a response to differentcircumstances. The law has a longer history,dating back to conventions from the 1940s andlong before that. But its practice is as new as thecourts where it is now being tested. Expertise islimited, if growing, and resources – such as thishandbook – are only evolving now.In short, international humanitarian law andthe institutions to uphold it have achieved a criticalmass – but only very recently. Facing considerablepressures on all sides, a journalist must present areliable and fair picture of complex and sometimesseemingly inscrutable proceedings. It is a majorchallenge.To appreciate how new and dynamic the fieldis, it is essential to comprehend the long struggleto build the law and the courts needed to confrontthe perpetrators of the worst of humanity’s crimes.The Origins of Human RightsHuman rights have evolved as a concept overmany years in many cultures. In the 18th and 19thcenturies, several European philosophersproposed the concept of “natural rights” – that isrights that belong to a people by nature becausethey are human beings, not by virtue of citizenshipof a particular country or membership of aparticular religious or ethnic group.6 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGThe Crimes Tried at NurembergCrimes against peace (aggression)Planning, preparation, initiation or waging ofa war of aggression or a war in violation ofinternational treaties, agreements orassurances; participation in a common plan orconspiracy for the accomplishment of any ofthe following:War crimesViolations of the laws or customs of war whichinclude, but are not limited to, murder, illtreatmentor deportation of civilian populationof or in occupied territory, murder or illtreatmentof prisoners of war, of persons onthe seas, killing of hostages, plunder of publicor private property, wanton destruction ofcities, towns, or villages, or devastation notjustified by military necessity.Crimes against humanityMurder, extermination, enslavement,deportation and other inhuman acts doneagainst any civilian population, orpersecutions on political, racial or religiousgrounds, when such acts are done or suchpersecutions are carried out in execution of, orin connection with any crime against peace orany war crime.The term “crimes against humanity” wasfirst used by an African American scholarcalled George Washington Williams, in anopen letter to King Leopold II of Belgium in1890, in which he spoke about the appallinghuman rights situation he had witnessed inthe Congo, at the time run virtually as aprivate colony by the king.GenocideFirst relating to the Holocaust, it was not listedas a crime in the Nuremberg court’s charter.But after pressure from Raphael Lemkin, thescholar who had actually coined the term“genocide”, prosecutors included it inindictments against some of the major Nazison trial, and in their closing remarks.Baghdad, February 2003At the same time, the founder of the RedCross, Henri Dunant, began expressingconcern for the plight of the sick and woundedin war time and worked to establish the firstGeneva Convention, which was signed in 1864.In the late nineteenth century and into thetwentieth, these rights progressed further aspolitical and religious groups worked to endslavery, serfdom and exploitative labourpractices.These values – what we now call humanrights – were enshrined in the Charter of theUnited Nations just after World War II. In itspreamble, the charter stated that the UN aimed to“reaffirm faith in fundamental human rights, in thedignity and worth of the human person, in theequal rights of men and women and of nationslarge and small”. It entered into force in October1945. The Universal Declaration of Human Rights(December 10 1948) elaborated on theseprovisions and produced a full catalogue ofhuman rights.Credit: Tony BordenREPORTING JUSTICE ■ 7


CHAPTER 1 ■ THE FIGHT AGAINST IMPUNITYNurembergThe international human rights movement grewquickly in the second half of the 20th century. In1946, the Nazi military and political leadershipwere put on trial in Nuremberg for the crimes theycommitted against civilians and a new legalconcept was born: crimes against humanity.The Nuremberg trials were a watershed ininternational humanitarian law. They marked thefirst time leaders of a major state were tried bythe international community for war crimes,crimes against peace and crimes againsthumanity.By putting on trial those responsible for theHolocaust – the annihilation of six millionEuropean Jews – the Allies showed the worldwhat had been done and thus made it impossibleto deny what had happened. In addition topunishing those responsible for the crimes, theNuremberg trials also served to bring justice tothose who survived the Holocaust byacknowledging their suffering. Finally the trialstrengthened the rule of law internationally,establishing the principle that there was such athing as crimes against humanity.Much of this would have been impossiblewithout the media. Had journalists not coveredthe trial, the public would not have known aboutwhat unfolded in the Nuremberg courtroom.Without them, the shocking footage of Nazi deathcamps, the dramatic testimony of campsurvivors, and the hundreds of thousands ofdocuments detailing Nazi crimes would neverhave made it into the public’s consciousness anda crucial part of the tribunal’s mission would havebeen left unfulfilled.Parallel trials were also held in Tokyo, to tryJapanese leaders for their part in wartimeatrocities.Emboldened by these trials, human rightsactivists were determined to end impunity – thatis, where people get away with major crimesunpunished. They devised the 1948 GenocideConvention, which gave legal meaning to theworst crimes known to mankind, and drafted the1949 Geneva conventions, which codified thelaws of war and outlawed attacks on civilians andcivilian property. In their eyes, the next logicalstep was an international court to enforce thenewly developed body of internationalhumanitarian law.The Cold War and AfterBut it was not to be. In the years following WorldWar II, the United States and the Soviet Unionbegan competing with one another in an effort tospread their opposing ideologies throughout theworld. As they built up their military arsenals, thetwo superpowers hamstrung the United NationsSecurity Council with their veto powers, renderingany kind of international cooperation towardscreating an international court impossible.NurembergBy far the most famous war crimes trials ofthe modern era were the Nuremberg trials, thetrials of Nazis involved in World War II andthe Holocaust.Initiated by the United States, GreatBritain, France and the Soviet Union – thevictors in the war – the trials were held at theNuremberg Palace of Justice in Germany from1945 until 1949.The first and most famous trial began inNovember 1945 at the International MilitaryTribunal. Twenty-four of the main capturedNazi leaders were put on trial, and 12 of themwere sentenced to death. Subsequently, scoresof lower-ranking war crimes suspects weretried at the US Nuremberg Military Tribunal. Inthe process, the inner-workings of the Nazi warmachine were exposed.When the four powers signed anagreement creating the InternationalMilitary Tribunal in August 1945, they hadto decide which type of legal system thecourt would use: common law, used by theBritish and the Americans, or civil law usedin Europe and the Soviet Union. Theysettled on a hybrid of the two systems – anexample that was to be followed by futuretribunals.The process at Nuremberg was flawed – itwas victor’s justice. Only crimes committedby the Germans were tried. There was noconsideration of attacks by Allied forces oncivilian populations in Germany or Japan. ButNuremberg would provide the criticalgroundwork for subsequent war crimescourts.8 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGFor nearly half a century, the body of lawcreated in the wake of World War II seemedforgotten, so much so that by 1992 “civilised”Europe was again home to concentration camps,mass deportations and systematic destruction.In what was then known as Yugoslavia, Serbforces began systematically expelling members ofother communities from the territory theycontrolled. They did so in front of the world's eyesin utter disregard for the laws of war, confident thatthey would never have to answer for their crimes.This practice was also applied by other parties inconflicts throughout the region.But by then the Cold War was over, the SovietUnion had collapsed, and the United Nations wasno longer crippled. As the savagery continuedunabated, a public outcry forced the world’spowers to act. In 1993, the United NationsSecurity Council established the InternationalCriminal Tribunal for the Former Yugoslavia(ICTY), to hold accountable those responsible forcommitting the atrocities.The ICTY, based in The Hague, Netherlands,was the first war crimes tribunal since Nuremberg,and its establishment spearheaded what humanrights activists call the “shift from impunity toaccountability.” The following year, the SecurityCouncil created a court for Rwanda to holdaccountable those responsible for the slaughter ofsome 800,000 Tutsis and moderate Hutus in 1994.A Special Court for Sierra Leone followed, as didefforts to try war crimes suspects in Kosovo,Cambodia and East Timor, among others.A Permanent CourtFinally, in July 2002, the International CriminalCourt, the world’s first permanent internationalbody capable of trying individuals accused of themost serious violations of internationalhumanitarian law, came into being.Created through a treaty among nations,currently with 100 signatories, it is an independentbody, tasked with prosecuting alleged warcriminals where states are themselves not willingor able to do so.The court had long been the missing link ininternational human rights enforcement. The courtfaces many challenges – a vast remit, the complexnature of the cases it will deal with, and inparticular strong opposition from the UnitedStates. But although most countries had long agoaccepted the Universal Declaration of HumanRights and ratified the Geneva conventions, theGenocide Convention and other treaties, there hadnever been an official enforcement mechanismwith jurisdiction over individuals who commit thesecrimes.Now such a court exists.EXERCISESIn this chapter, we’ve looked at the aims of warcrimes courts and their history. Answer thefollowing questions:1) The Nuremberg Trials achieved three keythings. What were they?2) What were the crimes tried at Nuremberg?3) Why was the role of journalists at Nurembergso important?4) Which was the first war crimes tribunal set upafter Nuremberg?REPORTING JUSTICE ■ 9


CHAPTER 2 – THE TRIBUNALSInternational humanitarian law has no singlebasis but draws on a complex web ofdocuments, treaties, rulings and customarypractice. So too there is no single institution toenforce this law. In response to different historicalmoments, many different types of courts havebeen created to try those accused of war crimes.These include:■■■■International Criminal Court (ICC)Ad-hoc tribunals for Yugoslavia and Rwanda(ICTY and ICTR)Hybrid courtsNational courtsThis chapter reviews the main courts currentlyoperating, provides background on theirformation, and explains some of the keydifferences in how they are structured, how theyoperate and what kind of crimes they cover.International Criminal CourtThe newest and most far-reaching tribunal createdto hold war crimes suspects accountable is theInternational Criminal Court (ICC), based in TheHague.The ICC has been a long time coming. Acourt of this kind had been envisaged ever since1945, when the Allied forces who won World War IIestablished the Nuremberg tribunal to try Nazi warcriminals.The aim of the ICC is to try individuals for theworst crimes known to mankind. It is the firstpermanent court created to investigate and trysuch cases. Until 2002, when it came into being,war-crimes trials had been conducted bydomestic courts or by temporary tribunals with aspecific focus.The Rome Treaty, which created the ICC, wasadopted by an overwhelming majority of UnitedNations member states in July 1998. But the courtcould only start operating when 60 countries hadratified the treaty, which took another four years.The ICC is empowered to try war crimes,crimes against humanity and genocide. The ICCdefinition of crimes against humanity includesrape, torture, forced disappearance andapartheid. The ICC also has the power to try thecrime of aggression – but only after the stateswhich have signed up to the court can agree on adefinition of this crime.Contrary to popular belief, the ICC does nothave the power to prosecute any person anywherein the world. It can only try crimes relating toalleged violations of international humanitarian lawthat were committed after July 1, 2002 – that is,after the court was formally constituted. It only hasjurisdiction over crimes committed within statesthat have ratified the Rome treaty, or that areattributed to nationals of those states.The ICC is independent and is not a UNinstitution. However, the UN Security Council canrefer a situation in any territory of the world to theICC – overriding the national and territoriallimitation on the court’s jurisdiction. But such astep can only be taken under the Chapter VII ofthe UN Charter, which governs intervention. Thiswould require the agreement of the majority ofmembers of the Security Council, and theacceptance of all permanent members, whichhold veto power.The ICC plans to help victims by providingthem with compensation through the Victims’ TrustFund, which is overseen by an independent boardof directors. Support for the fund will come fromgovernments, foundations and private donors. Thecourt can also order criminals to pay reparations.As of the start of 2006, 100 countries hadratified the treaty, and the ultimate aim is universalratification. But opposition by the United States tothe court has significantly hindered the process.The US fears that an anti-American ICCprosecutor could use the court as a tool to unfairlytarget Americans. So Washington has not onlyrefused to ratify the Rome Statute, it has also usedits political and economic leverage to undermine itby demanding that states sign bilateralagreements pledging not to subject Americancitizens to the court. Those who refuse could bedenied US military or other aid.A child waits with her mother in Disa, Northern Darfur.Credit: Marcus Bleasdale10 ■ REPORTING JUSTICE


CHAPTER 2 ■ THE TRIBUNALSThe late former Yugoslav president Slobodan Milosevicin the courtroomAn ICC case can be triggered by the court’sindependent prosecutor, by a country, or by theUN Security Council. The court will only proceed ifit is convinced that the country concerned isunwilling or unable to look into and potentiallybring to trial a war crimes case itself. “Failed” or“collapsed” states, or countries at war, may nothave the ability to undertake complex war crimestrials; countries which have been involved in warcrimes may simply refuse to.As of February 2006, ICC Chief ProsecutorLuis Moreno-Ocampo had decided to openinvestigations into three situations in Africa, as afirst step that could lead to war crimes trials:■■■Democratic Republic of CongoUgandaDarfur, SudanAd-hoc UN Tribunals: Rwanda and FormerYugoslaviaBefore the ICC came into being, there wereother attempts to bring war criminals toaccount.In what was then known as Yugoslavia, aseries of wars erupted in the 1990s in whichvarious ethnic groups were systematically andbrutally expelled from territories they controlled.Much fighting on the part of Serb, Croat andBosnian Muslim forces was undertaken with utterdisregard for the laws of war, by individuals whowere confident that they would not have to answerfor their crimes.But a public outcry forced the world’s powersto act and in 1993, the United Nations SecurityCouncil established the International CriminalCredit: IWPRTribunal for the Former Yugoslavia. Based in TheHague, in the Netherlands, this was the first warcrimes tribunal since Nuremberg.The next year, 800,000 Tutsis and moderateHutus were slaughtered in the genocide inRwanda. In response, in November 1994, theSecurity Council voted to create the InternationalCriminal Tribunal for Rwanda (ICTR).Both tribunals were created by UN SecurityCouncil resolutions and are UN institutions. Bothhave a mandate to prosecute war crimesundertaken by anyone on the territory, from anyethnic or national group, or any country.Like the ICC, the crimes under the jurisdictionof the ad-hoc UN tribunals include war crimes,crimes against humanity and genocide.Both the ICTY and ICTR – like the Nurembergcourt before them – employ a combination of civillaw and common law. Prosecutors investigateand bring indictments, which have to beconfirmed by the judges before they becomeofficial. Trials are conducted in an adversarialmanner, with prosecutors and defence lawyerspresenting their arguments to the judges, who actas referees. There is no jury. It is the panel ofjudges who hand down the final decision.Cases are built in the courtroom, wherehundreds of witnesses might be questioned.Sometimes witnesses can choose not to appear inperson, but to submit a written statement instead.ICTY and ICTR prosecutors may offer pleaagreements – in other words, they can offer toreduce the charges against an accused inexchange for a guilty plea and usually cooperationin providing testimony in another case. But thejudges may disregard plea agreements. Suspectsare entitled to appeal their cases through aspecially-created joint Appeals Chamber thatcovers both the Rwandan and the former Yugoslavtribunals.The ICTY, based in The Hague, theNetherlands, has indicted 161 people from allethnic groups and all sides involved in the wars inthe former Yugoslavia, including the late formerpresident of Yugoslavia Slobodan Milosevic. ByFebruary 2006, more than 130 accused hadappeared before the court. Forty had been foundguilty and six acquitted, with others having died orhad the indictments against them withdrawn. Sixremained at large.The ICTR, headquartered in Arusha, Tanzania,with the prosecutor’s office in Kigali, Rwanda, hasindicted 59 people, including senior cabinet12 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGCredit: IWPRICTY building in The HagueCommon Law vs Civil LawFollowing the pattern from Nuremberg, theinternational war crimes courts have largelyadopted a hybrid system adapting from bothcommon law and civil law. What are thedifferences between the two, and what does thecombined approach mean?The common law system – often thought ofas “Anglo-Saxon” or English because it is used inBritain and former colonies, including the UnitedStates – is based on court decisions and theprinciples that emerge from them. This is knownas precedent. (It also draws on custom and usage,and written law.)Under common law, prosecutors need toestablish that there is a prima facie case, meaningone that is likely to result in a conviction ifbrought to trial. Prosecutors and defence lawyersthen present opposing legal arguments in thecourtroom while the judge plays a passive role,presiding over proceedings and acting as refereebetween opposing counsel. A jury drawn fromrandomly selected members of the public rendersa verdict.Because jurors do not have legal expertiseand could be prone to believing any convincingargument, the common law system has developedstrict rules of evidence aimed at excluding lessthan-trustworthyinformation. Evidence that doesnot meet this standard is not presented to the juryand is not considered part of the case. So long asevidence passes this test, however, the parties arefree to introduce whatever they believe will bestsupport their version of events. They can decidewhom to call as witnesses, and are given a chanceto question the other side’s witnesses through theoften hostile process of cross-examination.Civil law proceedings are based on writtencodes of law, and precedent plays a lesser role.Trials are not adversarial but rather“inquisitorial”. That means the judges take aleading role, conducting investigations and askingquestions during the trial in an attempt to comeas close to the truth as possible. The judges alsogive the decision or verdict; there are generally nojuries (although some civil law countries such asRussia are introducing them). Although the rulesof evidence are more lenient, all the evidence forthe case must be presented before an indictment isissued. Documents play a greater role thanwitness testimony.Many international war crimes tribunals,including Nuremberg, ICTY, ICTR and ICC,adopted a mixed common-civil law system. In thecourtroom, this means that:■■■■some evidence is presented with theindictment, and some is introduced laterduring the trial;as in civil law, a panel of judges, not a jury,renders decisions;as in common law, an adversarial system isused;the defendants have a right to present evidencein their own defence and to cross-examinewitnesses brought by the prosecution.In practice this has also meant extensive behindthe-scenesdiscussions and debates among thejudges, as legal minds from both traditions worktogether to clarify and agree their workingprocedures. The international war crimestribunals are sometimes as much about creating anew legal system as they are about trying thespecific cases at hand.REPORTING JUSTICE ■ 13


CHAPTER 2 ■ THE TRIBUNALSmembers, military commanders, politicians,journalists and senior businessman from the timeof the genocide in 1994. By February 2006, it haddealt with 26 cases and secured several genocideconvictions, making it the first court to rule on thecrime as defined under the Genocide Conventionof 1948. Another 28 suspects were on trial andnine remained at large.These tribunals have been successful inholding accountable some of those responsible forthe worst crimes in the former Yugoslavia andRwanda. They have also contributed to thebroader goal of establishing a record of crimesand helping those societies face up to whathappened.They have not been an unqualified success,however. Both tribunals take place hundreds ofmiles from the sites of the crimes, which make theproceedings feel remote to those who aresupposed to benefit from them. Some key accusedhave not surrendered or been apprehended. Thecases have also been very complex and expensiveto run, and they are under pressure from theinternational community to complete their work andclose down in the next few years.Hybrid Courts: Sierra LeoneSierra Leone’s brutal war, which included masskillings, mutilations and sex crimes, ended in2002, with an international commitment to supporta court that would try and punish the worstperpetrators.To avoid the expense of establishing a UNtribunal and to ensure that the justice meted outwould resonate within the society, the UN and thegovernment of Sierra Leone agreed to establish aso-called hybrid tribunal with both national andinternational staff, judges, prosecutors anddefence lawyers. The Special Court for SierraLeone, based in the capital, Freetown, has athree-year mandate and a total budget of $57million. Trials began in June 2004.The Special Court for Sierra Leone draws onparts of the 1949 Geneva conventions (seechapter 6) and other international legislation, aswell as national law of Sierra Leone. It can trycrimes against humanity including murder,extermination, enslavement, deportation,imprisonment, torture, rape and other forms ofsexual violence, persecution and other inhumaneacts when carried out as part of a “widespread orsystematic attack against any civilian population”.Mass grave near Baghdad, February 2003Under the Geneva conventions’ commonArticle 3 and the Additional Protocol II of 1997,the court can prosecute people for violenceincluding murder and torture, collectivepunishment, humiliating and degrading treatment,pillage, and extra-judicial killings. Otherinternational-law violations include deliberateattacks on civilians, aid workers andpeacekeepers, and conscripting children underthe age of 15 into armed forces. Finally, the courtcan charge people for breaches of SierraLeonean law such as the abuse of girls under 14,and wanton destruction of property.Genocide was not listed in the court’s statutebecause it is not believed to have taken place inSierra Leone.The Sierra Leone court has a registry,chambers and prosecution. The defence is alsoincluded as an integral body of the court.So far, 11 people from all sides in thecountry’s former warring factions have beenindicted, including the former president of Liberia,Charles Taylor.Other Hybrid & National CourtsSeveral other courts have been established toaddress crimes in countries under transition.National or hybrid courts can help speed theprocess and ensure local resonance.Sometimes, however, they may become tied upin national political issues and get delayed orentrapped in controversy over their structure orquestions about their professionalism, capacityor neutrality.A similar hybrid court has been created inCambodia, where trials of the surviving KhmerRouge leaders, who seized power and wereCredit: Tony Borden14 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGresponsible for the deaths of at least 1.7 millionpeople during four years of terror from 1975 to1979, are due to start in 2007.In Kosovo, a region of Serbia andMontenegro on the territory of the formerYugoslavia administered by the United Nations,the UN mission has been helping to rebuild theprovince’s judiciary and legal system, and as partof that effort has overseen numerous trialsinvolving violations of international humanitarianlaw.In East Timor, the United Nations TransitionalAdministration has established Special Panelswithin the local judicial system to hold war crimessuspects accountable.In Bosnia and Herzegovina, a country thatused to be part of Yugoslavia, a War CrimesChamber has been set up in close cooperationwith the ICTY, to try those responsible for eventsduring the wars in the Balkans, includingindividuals that the tribunal in The Hagueconsiders too low-level to deal with itself.In neighbouring Croatia and Serbia, thejudicial systems have also been given internationalsupport to overhaul their courts to meet Europeanstandards, so that they can run effective warcrimes trials on their own.In Iraq, former president Saddam Husseinand other top leaders are being tried at aSpecial Tribunal created by the Iraqi GoverningCouncil and the US-led Coalition ProvisionalAuthority. It is staffed by Iraqi judges and otherIraqi personnel, with the US military providingdetention facilities and support. It is empoweredto try Iraqi nationals or residents of Iraq duringthe time of the government of Saddam Husseinaccused of war crimes, crimes againsthumanity, genocide, and violations of certainIraqi laws relating to abuse of power or nationalresources.A grave digger at a cemetery in HarareExisting national courts sometimes exert theauthority to try war crimes cases. Some courts inEurope have sought to establish a right ofuniversal jurisdiction, and have soughtcontroversially to bring cases against political ormilitary leaders from other countries.EXERCISESIn this chapter, you reviewed the various kinds ofcourts and tribunals. See if you can answer thefollowing questions, and then check your answers:1. How were the tribunals for the formerYugoslavia and Rwanda created?2. Why was the ICTR created?3. Why are all UN member states obliged tocooperate with the ICTR?4. How was the ICC created?5. Why was it not possible to refer the genocidein Rwanda or the crimes during the SierraLeone civil war to the ICC?6. What kind of court does Sierra Leone have?7. What are some of the advantages of having ahybrid court?Credit: IWPRREPORTING JUSTICE ■ 15


CHAPTER 3 – IN THE COURTROOMJournalists are separate from the courtsand must at all times retain theirindependence from court institutions andofficials. But they have an essential role toplay if war crimes courts are to achieve theirbroader goals.Fairness and transparency are essential if thesociety at large is to understand and acceptwhatever judgements a court may hand down. Inmany cases, the rulings and the courtsthemselves will be very controversial – especiallywithin the communities from which a war criminalis drawn. Hence it is important that the details ofwar crimes cases and the work of the courts arereported fairly and accurately.Your job as a reporter covering theInternational Criminal Court or any other warcrimes tribunal is in the first place to provide aresponsible and balanced presentation of theproceedings, the facts and legal issues arising,and the rulings taken.You will also have to monitor what happensoutside the courtroom, because everything thecourt does can have an impact on the ground.This may mean reporting on the court itself, itsstrategies and plans (UN courts, for example,provide a regular report on their work to theSecurity Council), and its problems andchallenges.But the courtroom will be your starting point. Itis through the day-to-day proceedings there thatyou will get to know the facts for your stories: theconflicts and the crimes, plus the manypersonalities involved, including the accused andthe victims, lawyers for the prosecution anddefence, other witnesses, officials and of coursethe judges.What You Will See and HearOnce you have your credentials (see box, page18), you can attend trials and use other facilitiesmade available to reporters at the court. Everycourt has rules about what you are allowed to takeLord’s Resistance Army fighters captured in an ambushare paraded in front of the town in Soroti, CentralUganda.Credit: Marcus BleasdaleOUTSIDE IMPACTSA court’s decisions can have lasting influenceon on-going conflicts and on internationalhumanitarian law.When the ICC issued arrest warrants forthe leaders of Uganda’s Lord’s ResistanceArmy in October 2005, mediators were stillworking to broker a peace between the rebelsand the government. These mediators said theICC investigation was jeopardising theirwork, by driving the LRA away from thetalks.ICC investigators kept a low profile, butin the end, the court issued arrest warrantsand mediation efforts appear to be on hold. Asthe story has unfolded on the ground inUganda, journalists have had the opportunityto address important issues concerning theICC and how it operates – an important partof reporting on the court.When the ICTY, the former Yugoslavcourt, was established in the mid-1990s, thoseindicted by the court were excluded byinternational mediators from peacenegotiations over Bosnia. In this instance,setting up a court may have assisted peacetalks by forcing the exclusion of obstructionistplayers who had stymied settlements foryears.In September 1998, judges at the ICTRfound the former mayor of a Rwandan town,Jean-Paul Akayesu, guilty of genocide. Theruling was historic because he was the firstperson to be found guilty of genocide sincethe Convention on Genocide came into forcein 1948. It was also significant for what it saidabout rape – that acts of sexual violence canform an integral part of the process ofdestroying a group, i.e., genocide.In covering the court, you will beexpected to report on the political impact ofcourt decisions and to explain groundbreakinglegal precedents as they emerge.16 ■ REPORTING JUSTICE


CHAPTER 3 ■ IN THE COURTROOMGetting Started at the ICCThe first thing you need to do to cover a courtcase is to get press credentials, which you can dothrough the press office. Generally there is apress representative for the registry, whichbasically manages the court, as well as theprosecutor’s office. In this case, it is the registrypress office that you need to contact.In the case of the ICC, the court will issuelong-term press credentials or daily passes forjournalists covering the court in the short term.For long-term accreditation, journalists have tofill out the ICC’s Accreditation Request Form,which can be downloaded form the court’swebsite or requested via post.Journalists are required to provide the followingdocumentation:■■■■letter from the media outlet they arerepresenting, specifying how long they willbe covering the court;photocopy of a valid passport;photocopy of a valid press pass;passport photo.The information should be sent to:International Criminal Court/Public InformationMedia AccreditationP.O. Box 195192500 CM The HagueThe NetherlandsIt can also sent by fax to +31 (0) 70 515 8408 orby e-mail to press@icc-cpi.int.Daily passes can be obtained at the court bypresenting a valid press pass and passport.Although there is plenty of space in thecourtroom galleries for journalists, some casesmay attract so many that you need specialaccreditation. The press office will postapplications for this on the ICC’s website.Once you have your credentials, you will beable to enter the courtroom and have access tothe press centre. Journalists are not permittedaccess to any other office unless accompanied bya member of the Public Information Unit.ICC Contacts:ICC Website: www.icc-cpi.intRegistry spokesperson, Ernest Sagaga +31 (0) 70515 8762Prosecutor’s spokesperson, Yves Sokorobi +31(0) 70 515 8560The Registry has also prepared a handbook forjournalists, which may be requested by e-mailingpress@icc-cpi.int or pio@icc-cpi.intContact for the Association of Journalists at theInternational Criminal CourtThomas Verfuss, PresidentPrins Mauritsplein, 212582 ND The Hague, The NetherlandsTelephone + 31 (0) 65 338 1687Fax: + 31 (0) 70 350 5151Email:thomas.verfuss@planet.nlinto the courtroom. Usually, electronic equipmentincluding tape recorders, mobile telephones andcameras are not allowed.All proceedings at the ICC, for example, arerecorded by the court and the press office canarrange for journalists to get video or audio feedsfor broadcast. There are video outlets in the pressworking area, to record the proceedings. Theremay also be a press room where you can watchthe proceedings via closed-circuit TV, enablingyou to work comfortably while following activities inthe courtroom.Journalists who regularly cover the ICC haveformed an organisation called the Association ofJournalists at the International Criminal Court. Itcan be extremely helpful – whether you are havingtrouble getting the information you need from courtofficials or just seeking advice from otherjournalists.At the ICC, you will sit behind a glass partitionin the press section. In the centre of the courtroomDamba and Bintu in a refugee camp.Credit: Marcus Bleasdale18 ■ REPORTING JUSTICE


CHAPTER 3 ■ IN THE COURTROOMHow the Rwanda Tribunal WorksThe Rwanda tribunal in Arusha is made up ofthree parts: the registry, the chambers and theprosecutor’s office. The registry is in charge ofall the administrative work. It controlssecurity, organises trial schedules and theprotection of witnesses and deals with thepress. It also pays the defence lawyers.Chambers refers to the judges, whocontrol trial proceedings and passjudgements.The Office of the Prosecutor (OTP),headed by the chief prosecutor, conductsinvestigations, builds cases and presentsevidence in court. Various investigators suchas police or forensic scientists might beinvolved in finding evidence against anindividual. That could involve digging upgraves at a crime scene or interviewingwitnesses thousands of miles away.If the tribunal has evidence againstsomeone, that person can be arrested andtransferred to Arusha. The OTP may beinvolved in investigating the whereabouts ofindividuals, but the court does not have itsown police and relies on local lawenforcementauthorities to arrest people.Because the tribunal has been set up with thebacking of the UN Security Council, all UNmember states are obliged to cooperate withit. Even so, there have been delays in gettingindividuals extradited.In Arusha, individual defence lawyersregister with the court. If defendants cannotpay for their own defence, the court willprovide a small choice of lawyers and paydefence costs.you will see a bench of three judges, who makeup the trial chamber.On one side of the courtroom is theprosecution team and on the other, the defence.The accused sits off to the side, behind thedefence team. The witness being questioned willsit in the centre of the courtroom.The working languages of the ICC are Frenchand English, and there will be simultaneousinterpretation (translation) in both these languagesvia headsets.Both the prosecution and the defence will callwitnesses and present documentary evidence.Each side can cross-examine the other’switnesses and question the evidence.You may report on anything that is said in thecourtroom, and generally you will be able to see awitness give testimony. However, when sensitiveevidence is being given, measures might be takento protect the witness’s identity, such as hidingthem from view or distorting their voiceelectronically. In some cases, the court may gointo closed session and all spectators, journalistsincluded, have to leave the courtroom.Resources and InterviewingAs a general rule, you may not interviewwitnesses before or after they give testimony.Courts cannot prevent journalists from trackingdown witnesses, but both prosecutors anddefence lawyers instruct witnesses not to speak tojournalists. That’s to prevent stories that conflictwith their testimony from appearing in the press.But you can examine documents andphotographs presented in open court. Ask thepress office for copies. This will includeindictments, legal rulings and possibly alsotranscripts of the sessions.You may also seek to interview theprosecution, the defence or the judges. Eachbody has its own press person. If, for example,you want to interview someone from theprosecution to explain the concept of commandresponsibility, you would call the prosecutor’spress office. Note that if judges are willing tospeak to the press, they will not comment on thespecifics of a pending case, but may be willing todiscuss the broader progress of a court, itsresults, challenges and objectives in future.After a while, you will develop your ownsources and will contact members of theprosecution, defence and judiciary directly. Pressofficers may not like being bypassed, but it’s foryour sources to decide whether they want tospeak to you.You should also develop a list of outside experts– representatives of independent monitoring, analysisor human rights organisations, other lawyers, judgesor other legal experts – who can help youunderstand the cases as they progress and provideanalysis and comment on developments. A list ofinternational organisations working on justice issuesis included in the appendix.20 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGBodies of Hema men, executed by Lendu militia just hours before, lie on the road north out of Fataki in Eastern Congo.They were bound and impaled before being shot.Credit: Marcus BleasdaleWhoever you are speaking with, make sureyou have done your research beforehand. Nothingwill annoy busy and important sources more thanif you telephone them for basic information youshould know already or could readily haveobtained on your own.For the ICC, the best place to start if you haveaccess to the internet is its website, www.icccpi.int.This will contain the court’s basic legaltexts, indictments, the court’s calendar, decisions,profiles of judges and other staff members, as wellas transcripts and possibly live video streaming –available via an internet connection – of courtroomproceedings. If you can, you should alsosubscribe to the ICC’s press and media mailinglists at www.icc-cpi.int/press/Media_Contact.html.You may download a form and send it to the pressoffice at pio@icc-cpi.int.Regular press conferences are held in thecourt’s briefing room. There are also televisionscreens so that journalists can watch courtproceedings – although at the ICC theproceedings are transmitted with a 30 minutedelay. The press centre is equipped withtelephones and internet connection. A smallnumber of computers are also available.EXERCISES1) How do you get access to the court’sproceedings?2) How might the court choose to protect awitness’s identity?3) Can you interview witnesses?REPORTING JUSTICE ■ 21


CHAPTER 4 – PROCEDUREThis chapter explains the sequence ofevents that take place during a trial andhow you should report them. All courts aredifferent, depending on which jurisdictionthey come under, but the issues are similar.Indeed, the procedure is similar in many respectsto the functioning of many national courts.IndictmentAn indictment is a detailed list of the crimes asuspect is alleged to have committed. It is basedon significant research and investigation by theprosecutor. The prosecutor will continue to seekinformation up until trial but must demonstrate ahigh level of evidence against an individual andhave an indictment reviewed by a judge before itcan be released.Once an indictment is issued, it becomes apublic document and you can quote from it. Readit carefully: the information in the indictment formsthe basis for your future reports. At this stage youcan describe the accused as “a war crimessuspect” – never forget that the charges at thispoint are allegations only and an accused personis innocent until proven guilty.Sealed IndictmentsSealed indictments are those where the namesof the individuals and the charges againstthem have not been made public, so that theprosecution has a better chance of catchingthem. There have been sealed indictmentsagainst a number of people at the Yugoslavtribunal.They were introduced by the former ChiefProsecutor of the ICTY/ICTR, Louise Arbour,at a time when authorities were notcooperating with the tribunals to hand oversuspects. She wanted to improve the chancesof tracking people down, and the move hasproved quite effective.Sealed indictments are an instance wherethe court has specifically decided to withholdinformation from the media, until a suspecthas been detained.The indictment contains useful backgroundinformation and lists the charges against a personas a number of counts. Generally, an incident orseries of incidents is described and the countsrelating to that incident are listed. Some of thepeople at the Yugoslav tribunal have had dozensof counts against them. At the Rwanda tribunal,there are generally fewer charges listed, butnearly everyone has faced the most seriouscharge: genocide.At the ICC, the charges are listed in a warrantof arrest, rather than an indictment. As ofFebruary 2006, only five people had been issuedwith arrest warrants by the ICC – the leaders of arebel group in Uganda, the Lord’s ResistanceArmy.Initial AppearanceMonths or even years before a trial getsunderway, suspects will make an initialappearance before the court. This is to give themthe opportunity to plead guilty or not guilty to thecharges. They will already have been given timeto choose a defence lawyer. At this point, theindictment is your main source of reportingmaterial. It may also be a time for reactions to thearrest and the opening of the case; often muchinformation is already publicly known about asuspect and articles may be written reviewing thisbackground.OpeningWhen the prosecution and defence havecompleted preparation of their cases, legal andprocedural issues have been debated andresolved, and witnesses confirmed, a case willcome to trial. This process can take many monthsor even years.Children sleeping in the 'Ark' in Gulu, Northern Uganda.There is no large-scale aid work helping the childrenwho sleep out in the streets; local NGO's give theirservices for free to help children find shelter for theevening. They flee the villages in the late afternoon toavoid abduction and death at the hands of JosephKony's Lord's Resistance Army. Up to 25,000 childrensleep outside in Gulu town each evening.Credit: Marcus Bleasdale22 ■ REPORTING JUSTICE


CHAPTER 4 ■ PROCEDUREThe prosecution opens the trial to explain thecharges and outline the case, reviewing theaccusations being brought and the evidence andwitness to be presented, and highlighting theindividual responsibility of the accused.The defence replies, likely arguing that theindividual was not personally responsible ordenying that the events constituted a war crime. Inmany cases before war crimes courts, the defencehas challenged the legitimacy of the court itself, orhas sought to make accusations against otherswho they say were involved in the conflict andmay have also, they allege, perpetrated crimes,even bigger crimes.These arguments are sometimes called openingbriefs or statements and they spell out what eachside is setting out to prove. They can contain a lot ofuseful information. They will give a strong signal ofthe evidence the prosecution will present and thestrategy the defence intends to follow.There may have been meetings before thetrial to sort out technical disputes. These can bemore interesting than they sound: a suspect maybe preparing to change a plea to guilty, forinstance. There are often debates over theadmissibility of evidence, or issues surroundingvarious witness who may or may not be availableto appear and the impact of this on the case eachside is trying to make.The technical workings of the trial are guidedby the statute and procedures of the tribunal.These are available from the court, but you maywish to ask representatives from the prosecutionor defence, or outside experts, to help youunderstand them. And be aware that these rulescan change. At the Rwanda and formerYugoslavia tribunals, the judges meet every sixmonths to try to streamline the procedures. It isimportant to stay on top of any changes.Witnesses and Cross-examinationThe main way that lawyers from each side try toprove their case is by presenting evidence, eitherthrough witnesses or documents. Sometimeswitnesses appear in person, or they may submit awritten statement. Other evidence can come fromdocuments, such as military orders. Somewitnesses are termed “expert” witnesses andprovide the court with insight into a specific issueor background to a conflict.Witnesses may testify voluntarily, or they maybe required to appear by the force of a subpoena– a legal document demanding their presencebefore the court. A subpoena can equally beserved to require a government to deliver specificdocuments needed as evidence.The prosecution begins the case bypresenting its evidence and its witnesses, with thedefence given the opportunity to challenge them.When the prosecution’s case closes, the defencemounts its case, and the roles are reversed.Each witness testifies by answering questions.In the case of a prosecution witness, theprosecution starts asking questions first. In thecase of a defence witness, the defence will do so.The lawyers will have met their own witness to talkthrough the questions and make sure they knowthe answers. They will also have tried to anticipatethe questions the other side will ask.The process of each side questioning awitness is called examination and crossexamination.There can be a lot of robust crossquestioningand if there are several defendants,with several lawyers, they can keep a witness onthe stand for hours, if not days. The purpose is togive the judges ample opportunity to decidewhether a witness is reliable or not.Hearing Witness TestimonySometimes what you hear in court can be verydistressing. One observer at the Rwandatribunal described the following scene:“One story which stuck with me, it was adefence lawyer, he was trying to question her[the witness] one time.“‘You said you had a baby on your backwhen you are trying to run away?’ Then heasked her, ‘What happened? Where had thebaby gone?’“She told us, ‘I met somebody who was aHutu who said he has got a car, he has milk,he’s going to treat my baby like all his kids, andI left the baby...’“Because she was tired, she had beenrunning, she couldn’t run any longer with thebaby, it was very heavy. And then the baby wasleft with that man. When the defence lawyerasked her what happened to that baby in the end,she said, ‘I understand he was given to the dogs.’“I think there was something like threeminutes of silence. Nobody could ask any morequestions. And she was there, ready to answerother questions.”24 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGThe Taleban's destruction of two giant Buddha statues at Bamian, Afghanistan, counts as an attack on culturalheritage.Credit: Jean MacKenzieThis presentation of witnesses is the heart ofthe trial. You may have to cover a lot of evidencepresented this way. It is very important to be ableto convey accurately what has been said in court,to pick the most important quotes, and to puteverything into context for your audience.Remember, especially in a long trial, it isimpossible to know what witnesses and whatevidence the judges will find important when theymake their decisions. So your challenge is topresent as much information as clearly as you can,so that your audience can get the best impressionof the complexity of the case as it proceeds.When the presentation of evidence andtestimony of witnesses by both sides iscompleted, the bulk of the trial is over.Protected WitnessesWitnesses are often worried about possibleretaliation and do not want their identities known.The court can offer a range of measures to helpprotect them, including giving them a pseudonym,concealing their face, disguising their voice, orallowing them testify behind closed doors.Journalists have been charged with contempt (seebelow) for their part in revealing people’s identity.Closing ArgumentsOnce all the evidence has been presented andthe prosecution and the defence have made theircases, the two sides will again tell the judges whythe defendant is guilty or innocent of the charges.This is another important moment in the trial. Eachlawyer will sum up the most telling points theyhave made and will try to demolish theiropponent’s case. Listening carefully at this stagewill give you the best points of the case in anutshell.JudgementThe judges normally have a set period fordelivering a judgement, so you know when toexpect it. This is the most important part of the trialand you have to be prepared. The judgement hasthree main elements:■■■whether the person is guilty or not guilty of allor any of the counts against him or her;what sentence the convicted person shouldserve;the judges’ reasons for coming to theirconclusion on the verdict and any sentence.AppealAt the international tribunals – and usually withina national legal system, too – once sentenced,the prisoner will have the right to appeal to ahigher court. At the Rwanda tribunal, there is anAppeals Chamber (shared with the Yugoslavcourt) with five judges who are based in TheHague. They will hear any arguments and decidewhether to confirm or change a verdict or asentence.REPORTING JUSTICE ■ 25


CHAPTER 4 ■ PROCEDUREWhat a Judgement Looks LikeHere is an excerpt from the judgement againstJean Paul Akayesu, the mayor of Taba in Rwanda,who was accused of war crimes, crimes againsthumanity and genocide. Ellipses indicate sectionsomitted.ICTR-96-4-T Delivered on 2 September 19981. Trial Chamber 1 is sitting on this day, 2September 1998, to deliver its judgment in thecase “The Prosecutor versus Jean-Paul Akayesu”,case no. ICTR-96-4-T.[ . . . .]41. On the crime of genocide, the Chamberrecalls that the definition given by Article 2 of theStatute is echoed exactly by the Convention forthe Prevention and Repression of the Crime ofGenocide. The Chamber notes that Rwandaacceded, by legislative decree, to the Conventionon Genocide on 12 February 1975. Thus,punishment of the crime of genocide did exist inRwanda in 1994, at the time of the acts alleged inthe Indictment, and the perpetrator was liable tobe brought before the competent courts ofRwanda to answer for this crime.42. Contrary to popular belief, the crime ofgenocide does not imply the actual exterminationof a group in its entirety, but is understood assuch once any one of the acts mentioned inArticle 2 of the Statute is committed with thespecific intent to destroy “in whole or in part” anational, ethnical, racial or religious group.Genocide is distinct from other crimes inasmuchas it embodies a special intent or dolus specialis.Special intent of a crime is the specific intention,required as a constitutive element of the crime,which requires that the perpetrator clearly seek toproduce the act charged. The special intent in thecrime of genocide lies in “the intent to destroy, inwhole or in part, a national, ethnical, racial orreligious group, as such”.43. Specifically, for any of the acts chargedunder Article 2(2) of the Statute to be aconstitutive element of genocide, the act musthave been committed against one or severalindividuals, because such individual orindividuals were members of a specific group,and specifically because they belonged to thisgroup. Thus, the victim is chosen not because ofhis individual identity, but rather on account ofhis being a member of a national, ethnical, racialor religious group. The victim of the act istherefore a member of a group, targeted as such;hence, the victim of the crime of genocide is thegroup itself and not the individual alone.[ . . . .]55. In conclusion, regarding Count One ongenocide, the Chamber is satisfied beyondreasonable doubt that these various acts werecommitted by Akayesu with the specific intent todestroy the Tutsi group, as such. Consequently,the Chamber is of the opinion that the acts allegedin paragraphs 12, 12A, 12B, 16, 18, 19, 20, 22 and23 of the Indictment, constitute the crimes ofkilling members of the Tutsi group and causingserious bodily and mental harm to members of theTutsi group. Furthermore, the Chamber is satisfiedbeyond reasonable doubt that in committing thevarious acts alleged, Akayesu had the specificintent of destroying the Tutsi group as such.Contempt of CourtThe UN war crimes tribunals and the ICC areempowered to prosecute people for contempt ofcourt if they interfere with the work of the court orcontravene orders from the judges. This couldinclude intimidating a witness, revealing theidentity of a protected witness, or refusing courtorders to testify or produce documents.The rationale for a court being able toprosecute someone for contempt is based on itsneed to uphold the integrity of the legal process.The rule of law depends on functioning courts, sothey have the power to punish those whoknowingly or wilfully defy their authority.It is essential to know and understand therules of contempt, because as a journalist you arevulnerable to breaking them. For example, youmight learn the name of a witness whose identitywas withheld during testimony. If you were tomake it public, you could be held in contempt.Another possibility is if you covered the war andwere the sole witness to a particular crime, inwhich case you could be called to providetestimony. If you refused to testify – and manyjournalists don’t want to – you could be held incontempt.A charge of contempt could result in heavyfines, imprisonment, or both. Different courts canhand down different punishments to those foundguilty of contempt.26 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGMaximum Penalties for Contempt ofCourtYugoslav tribunal, up to100,000 euro and upto 7 years in prison(see www.un.org/icty/legaldoc-e/index.htm)Rwanda tribunal, up to $10,000 or 6 months inprison(see http://65.18.216.88/ENGLISH/rules/260600/6.htm)Sierra Leone court, up to 2 million leones,7years in prison, or both(see www.un.org/icty/legaldoc-e/index.htm)International Criminal Court, up to 100,000euro fine, but no prison termTwo years later, however, the court indictedmore journalists for contempt. The first was DuskoJovanovic, editor-in-chief of the Montenegrin dailyDan. In August 2002, his newspaper revealed theidentity of a protected witness who had testifiedagainst former Yugoslav president SlobodanMilosevic. The ICTY charged Jovanovic withcontempt of court, but dropped the charge afterhe published an apology.Later, the ICTY charged five Croatianjournalists with contempt for revealing the identityof witnesses who had testified against a Croatiangeneral. One of them, the chief editor of theHrvatski List newspaper, Ivica Marijacic, wasfound guilty in March 2006 and ordered to pay afined of 15,000 euro, as was the former head ofthe Croatian security service, Markica Rebic. Thetrials of the four other journalists have not yetconcluded.EXERCISESThe ICTY has charged several journalistswith contempt of court. The first time was inJanuary 2002, after ICTY prosecutors askedWashington Post journalist Jonathan Randal totestify in the case against a Bosnian Serbpolitician, Radoslav Brdjanin. The defendant wasaccused of the persecution and expulsion ofmore than 100,000 non-Serbs during the 1992-95Bosnian war.Prosecutors cited a 1993 article Randal hadwritten. It quoted Brdjanin as saying he wanted todrastically reduce the number of Muslims living inhis province. He denied the quote, and theprosecution asked Randal to appear in order toverify it. Randal and his employer refused,claiming that testifying in court jeopardised ajournalist’s neutrality and that sources would notspeak to the press if they thought that journalistsmight testify against them. The trial chamber thenordered that Randal either appear, or be held incontempt of court.The Washington Post appealed, arguing thatreporters should only be summoned when theirevidence is essential to a case and cannot beobtained by any other means. The appealschamber ruled in Randal’s favour.In this chapter you’ve been looking at courtprocedures. Consider the following scenarios anddiscuss:1. The court has issued an indictment against oneof your country’s high-ranking military officials.The indictment contains one more name, whichis under seal, and blackened out. You manageto decipher the name from the electronicversion of the document and discover that thesecond person indicted is the country’s vicepresident.Do you publish this information?2. An important witness is testifying underprotective measures against the former headof your country’s secret service. A person yoususpect of being a secret service employeeapproaches you with information about thiswitness’s identity and asks you to publish it.What do you do?3. A distant cousin of yours is indicted by the ICCfor crimes against humanity and is on the runfrom the court. He contacts you through amiddle-man and offers to give you an exclusiveinterview. He wants to convince people of hisinnocence. What do you do?REPORTING JUSTICE ■ 27


CHAPTER 5 – COURT REPORTINGSo you have studied all the documents inthe case, reviewed the background ofinternational humanitarian law, sorted outyour accreditation, and finally got yourselffully prepared and in the courtroom. But what doyou write about?The experience of attending a trial – whetherof a local domestic dispute or a major war criminal– can be trying. Time moves slowly, proceduralissues intrude, questions to witnesses seemrepetitive or beside the point, and the judges arealways going into recess.Moments of high drama may seem few andfar between, and even then come so cushioned inlegal language and procedure that they can behard to grasp. Many days there is a welter ofdisparate detail, like jigsaw puzzle pieces whichyou can’t assemble. Your physical distance fromthe players in the courtroom, including separationby bulletproof glass, can make it all seem distant,even though you are right there.Grappling with these challenges is no meanfeat. But a clear idea of the kinds of articles youmay write, what you are looking for, and how youwill construct your story will make the job greatdeal easier.Balance and FairnessThe most important rule to remember is balanceand fairness. Preparing and writing a report on theproceedings in a war crimes court requires areporter to adhere to the same basic standards ofresponsible and reliable reporting as other goodjournalism.But in a war crimes court, a journalist musttake special care to observe these principlescarefully. This is both because of the specificlegalities of working inside a courtroom andbecause of the inevitable risk of bringing one’sviews and prejudices to bear on such extremelyemotive subjects. On a given day, you mayinevitably be reporting on one side of the story –for example testimony from a prosecution ordefence witness – but as well as ensuring thatyour report on this does not display bias, youshould stand back and ensure that your coverageover a period of days and weeks is balanced aswell.For an in-depth review of the basic standardsof responsible journalism, see IWPR’s manualReporting for Change: A Handbook for LocalJournalists in Crisis Areas, which can beaccessed online at www.iwpr.net.Types of StoriesKnowing what kind of story you need to come upwith at the end of the day will help you both inpreparing in advance and in particular inundertaking your reporting within the courtroom.Types of stories you may undertake include:■■■■■■courtside reports – a basic report on the day’sproceedings, your bread and butter;news item – a short report, especially if youare working for a news agency, providingimmediate notice of an important development;analysis – a more reflective article, drawingon expert advice and comment to explore theimplications of a verdict, ruling, new piece ofevidence or other key development in thetrial;colour piece – generally written on anoccasional basis, to give a sense of the flavouror tone of the courtroom and the personalityand mood of the individuals involved;feature – a portrait of an individual, a study ofthe court itself, the law or facilities, or an indepthlook at some other aspect in and aroundthe court;assessment – a well researched look at theprogress of a case, or the court itself,reviewing results and gathering a substantialamount of expert view and comment to providea clear but balanced view.You must find out what the court you are dealingwith allows in terms of reporting. Differentsystems apply different rules which dictate whatreporters can and cannot do. For example,domestic courts in Britain are very strict and onlyallow straight reporting of proceedings. Analysisis only allowed once the trial has finished. TheHague tribunal for the former Yugoslavia is muchless rigid, and this allows more analysis and28 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGChild soldiers wait in Bule, south of Fataki in Eastern Congo for orders to move.Credit: Marcus Bleasdalebackground material to be introduced into anarticle. It is essential you find out what thereporting restrictions are, so as to avoid beingcharged with contempt of court.Preparing for your time in court is essential,and will be driven in part by what you are trying towrite. Having as much background in mind as youcan is always advisable, but a short news item willlargely be evident from events and you will drawfrom information provided openly in court. Ananalysis piece will definitely require that you arewell-acquainted with all the documentation andbackground and have developed a useful array ofsources within and outside the court to produce abalanced and informative view.Other longer-form pieces will require evenmore research and preparation. Crucial here is toplan your reporting well, and anticipate thedocumentation and especially the sources you willneed, taking special care to ensure that you speakto a balanced selection of individuals (forexample, with sympathies for both defence andprosecution).Tip: Knowledge of short-hand writing is anenormous benefit to any journalist covering a trial.Even a partial capability which can be picked upwith a few hours practice enables you to writequicker and more legibly and to pay betterattention at the same time. There are severalbooks, courses and online resources to help. TheTeeline method is considered the standard.Courtside ReportsAn article or broadcast based on a day or severaldays spent observing court proceedings is themost basic of court reports, but no less of achallenge.The most important objective is to present afair and unbiased account of events as they unfoldin the courtroom.Confronted with masses of detailed andconfusing information, however, a long series ofwitnesses, and a complex body of law, thereporter is faced with what appear to becompeting aims, namely to:REPORTING JUSTICE ■ 29


CHAPTER 5 ■ COURT REPORTING1. identify a main story within the portion of thetrial one is reporting – the experience of avictim, the argument of a witness, the denial ofa defendant – and tell it as a straight narrative(see example 1 in appendix 1); and2. ensure that courtroom events are reflected fullyand fairly – in other words, not to omit animportant statement just because it doesn’t fitneatly into one’s chosen story.Focus is essential if you are to present ameaningful and readable report. But selectivitycan lead to accusations that you are concentratingon one side of the story, for example, onlypresenting evidence showing a defendant in thepoorest light.If that sounds like a contradiction, in someways it is. But there are ways of dealing with it.Remember by definition that you arereporting in the middle of a trial and cannotknow the importance of what you are seeing untilthe case is finished and a verdict is handeddown.So you might start one story with a leadparagraph identifying the main theme you aregoing to draw out. But in a second or thirdparagraph, you could sum up the secondary pointor issue that arose.Subsequent paragraphs set out the maintheme you have chosen to develop – the “story”:what a witness said, how exchanges on that pointwent, etc. Towards the end, you can then return ifnecessary and add detail on the other importantissues (summed up in your second or thirdparagraph) that you need to include for the sakeof completeness.Notice that in example 2 in the appendix, thereporter started by summarising the main pointsthat would be expanded on later, and waited tillparagraph five to sum up the other importantfacts.Make sure you stay in court long enough togive a full account of the part you have beenassigned to cover. If a defence witness speaks inthe morning, make sure you are there when crossexaminationby the prosecution takes place. Ifboth take place within the time you have to coverthe story, make sure you find out about it so youcan attend and cover that side, when interestingfacts and discrepancies may emerge.It could also be that the witness speaks for thedefence one week and you have to file a story;then you could mention in your piece that“prosecutors will cross-examine the witness nextweek” – and ensure that this process is alsocovered when it happens. The closing line “Thetrial continues” is sometimes used to remindreaders that you are only presenting a snapshot.Remember to stick to the facts at all times.Avoid adding too much extra context and history,and certainly don’t inject editorial comment. Oftenit is best to restrict contextual information about adefendant to a simple summary of the chargeslisted on the indictment, rather than adding ininformation you got from elsewhere about thenature of the war, who did what to whom and soon.You can legitimately describe the atmospherein the courtroom, and it is good to use your eyesas well as your ears. Readers are not in the courtwith you and want to know what it is like. But avoidheavily slanted adjectives – no “shifty-looking”defendants or “arrogant” prosecutors. Tell yourstory through action rather than description.Reprimands by judges and sharp exchangesbetween teams of advocates can also especiallybe noteworthy.Variants on the courtside theme include thefactual report on some matter of procedure. Sucha development could have an important impact onthe trial and so may be necessary to report. Seeexample 3 in the appendix.From being around the courthouse, you willsometimes hear rumours – for example, about whois suspected and how close they are to beingarrested. Make sure you have the informationabsolutely right, and beware of tipping someoneoff and helping them escape.Analysis and FeaturesMore reflective analytical pieces put developmentsin context and help your readers understand howa case is going. It is important to produce suchpieces from time to time so that they can graspthe progress of a case amid the cascade of detailand counter-charges which make up most of theday-to-day progress of a trial.This kind of report may take a court event – averdict, ruling or new piece of evidence – andseek comment from experts, lawyers, victims,NGOs or others. (See Appendix 1, Example 4.) Itmay also be used to mark a key turning points,such as the start of a trial, the close of theprosecution case, the close of the defence caseand of course the verdict.30 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGSometimes this would complement thecourtside report, sometimes such an “on theground reaction” would be the piece you fileinstead. This could be the case, for example, if theactual new evidence on the day amounted to justa paragraph or two of material but its importancemerited further investigation or comment.You might also interview prosecutors ordefence lawyers – if the rules allow you to – to talkabout a case. As with all interviews with officials,make sure you and they are clear about what isand what is not “on the record” – confirm inadvance and very precisely your ground rules forhow you may use their name (or not) or theircomments. (In the close confines of courtreporting, misusing your sources is a very badidea as you will quickly find you have no one totalk to.) Do have your questions prepared, but ifthey lead you into other interesting angles,definitely allow them to elaborate.The experienced journalist may also producea broader analysis looking at court or trial issuesthat do not relate to a particular courtroom eventbut instead examine matters of law or principleemerging through the case. (See Example 6 inAppendix 1.)In all cases, make sure you do not break courtrules about what you can report on, especiallythose relating to contempt of court.Preparing for a Big DayOn most days, the journalist will have to make aneffort to draw out the importance of the courtroomexchanges. Some days, however, are clearly filledwith drama, and you can be sure in advance thatyou will need to file a substantial piece.The opening of a big trial, the taking the standof a former state president, a major verdict in agenocide case – all of these will require you bothto report the news and to provide “instantanalysis” of the implications and context of theday.Good preparation makes all the difference.While you may not be able to predict what willhappen, you can anticipate likely outcomes. Youcan review and assess documents beforehand,and even write up some of your report before theday – for example paragraphs covering the maincharges in a case which you will know before theopening day.You should certainly plot the sources youwould like to quote – taking care to maintainbalance – and interview them beforehand if at allpossible. This will provide you with useful context,and you can warn them that you may need tocheck back with them quickly on the day to get afinal quote for your article.All of this will enable you to slot in the newmaterial as you get it – statements, evidence, aswell as colour from the day – and crucially toreview any already-prepared material to make sureit accords with events as they happened.As long as you are organised andresponsible, this approach can allow you toproduce polished articles in real time that canmatch the scale of the events that you maywitness.One note of warning: never file a report basedon pre-prepared material without attending theevent and checking it against what actuallyhappens. Careening into fiction and lies in yourreporting is a fast-track way to lose credibly andseriously damage if not end your career.EXERCISESThe only way to get used to court reporting is todo it in practice. Investigate what is happening inyour local courts, and pick a trial or proceedingsto try to cover.Write a list of all the questions you need toanswer: who's on trial, what law he or she isalleged to have broken, what stage the trial is atnow, what has happened so far, what will happennext, when it will end, what the possible outcomesare. Identify all the main players. Get to know thecourt officials and see who will help providedocuments or information.When you feel you have enough informationas background, try to write a report based on aday or two in court. Check back to make sureyou've got all the details right, and see whetheryou've made a story of it, with a top line and amiddle. If you can see you have gaps, work outwhy, and how you can fix them to make a betterjob of it next time.REPORTING JUSTICE ■ 31


CHAPTER 6 – CONFLICT REPORTINGReporting on war crimes courts requiresspecialist knowledge and experience,but the fundamental requirement is totake particular care to abide byinternational standards because of thecomplicated and risky nature of the subject.By the time you come to report on a warcrimes court, you may have already gainedexperience reporting directly from the conflict outof which the alleged crimes emerged. But youmay find yourself returning to the area to follow upon stories, to interview protagonists or victims, orto pursue other leads.This chapter provides an overview of thebasics of professional journalism. At IWPR we talkabout “international standards” of journalism,because despite considerable variation in styleand approach around the world, some generalprinciples have nevertheless become commonlyaccepted as the basis for professional reportersand editors.The chapter also reviews some specialtechniques and tips for reporting from conflictareas – how to interview victims and allegedperpetrators, how to reduce your risks of gettinghurt, and how not to contribute to further conflict.International StandardsJournalism codes around the world vary, butnearly all of them identify three fundamentalfactors as the basis for professional reporting:impartiality, accuracy and fairness. The key is fora journalist to establish, and maintain, his or hercredibility.Impartiality, or independence, means thatreporters should not support one political party,religion, people or ethnic group over another. Itallows for fairly reporting one side’s policies orpronouncements, and for including comments thatone party or group may make about another. In acourtroom environment, this means fairlyrepresenting evidence presented by each side,and adequately conveying their competing casesor arguments.The core principle is that the reporter shouldnot directly express his or her own comments,opinions or political preferences. Wherecommentary is appropriate, within an article or aseparate comment or “op-ed” article, responsiblejournalism provides clear distinction between whatis fact and what is opinion.Accuracy is a fundamental principle ofprofessional journalism. This means goodobservation, good listening, sound backgroundreading and, above all, talking to the right peopleto find reliable information.Journalists need to take extensive notes ortape record interviews where possible to ensurefaithful recording of what people say. Facts mustbe checked and checked again – rumour or“everyone knows” is not a source. Manyjournalistic organisations insist on the “two sourcerule” – which means that every fact must beconfirmed by two independent sources before itcan be taken as reliable.The urge to “get it right” is always strong andtakes priority over speed. There are no prizes forbeing fast and wrong. Accuracy is not just aboutfacts but also proper context. An article can bevery critical of someone, but it must provideappropriate context, for example making it clear ifa critical statement comes from a representative ofan opposing political party or an independentsource.Fairness includes being fair in both howyou gather information and how you present it.Interviewees have the right to know who youare, what you intend to do with the informationthey provide, and how you will portray them.On-the-record, fully identified sourcing isalways preferred, but this must be done byagreement.Protection of sources is a controversialsubject: while not covered by the law, journalistsfight strongly for their right to protect their sources,without whom they believe they cannot continue todo their job. An open and honest relationship withyour sources is essential.Fairness in presentation means presenting allsides to a story. It recognises that no one has amonopoly on the truth.Sudan Liberation Army rebels survey the remains ofHangala, a village bombed and burnt by governmentforces and local militia.Credit: Marcus Bleasdale32 ■ REPORTING JUSTICE


CHAPTER 6 ■ CONFLICT REPORTINGIn practice this means, for example, allowingsomeone whom you are criticising to have achance to respond to those comments within thesame story. Someone may be unhappy about anarticle you write about him, but he should neverbe surprised because the reporter should alwayshave discussed the critical points with him beforepublication.It is important to anticipate the time you willneed to get balancing quotations, and to be surethat you raise all the issues from your articles. Thiscan take a lot of effort and often is a cause forhold-ups or at least a lot of last minute anxiety atdeadline as you scramble to track down someoneyou should have gotten a comment from.Honesty, decency and transparency are alsovital for a journalist to keep the public’s trust. Moraland ethnical dilemmas arise frequently for ajournalist, and each one must come to his or herown conclusions. But these decisions will oftenbalance the pressures to ferret out information atall costs.Journalists must avoid harassing orintimidating sources, and should gatherinformation openly, legitimately and legally. Theyshould not, as a rule, use hidden recordingdevises or pay sources for information. Reportershave a right to information, but no more of a rightthan any other member of the public.Journalists must absolutely not acceptpayments or bribes for writing stories orpublishing particular information. Stealing fromPutting Others at RiskIn Burundi during the 1990s, many civilianswere killed during the war between Huturebels and the Tutsi-dominated army. Whenradio journalist Alexis Sinduhije receivedinformation that the army had massacredmore than 200 people in a particular village,he went to investigate. But there were someaspects of the story he decided not to pursue –to protect those involved:“We wanted to interview survivors, butbecause there were soldiers everywhere, weleft after lunch. We didn’t go to the tinyhospital to talk with the wounded as normallywe would, because we didn’t want to makeproblems for the priest or subject thewounded to further harm by the military.”Keeping RecordsIt is essential to keep good records ofeverything you cover in the field and anyphone calls you make, including logging thedate and time. Look after your notebooks,tapes or videos. Be careful that these do notget into the wrong hands.Keeping records is important for yourown protection. If you are asked to justifywhat you have reported, or are taken to courtover an article you published, you will needto be able to produce your notes to back yourstory up. You may also be asked to play a rolein a war crimes prosecution. This is alwayscontroversial for journalists, but if you decideor are compelled to testify, you will need togive accurate details of what you saw, whoyou met, what they said.the work of other journalists without fair attribution– plagiarism – is a fast-track way to end areporter’s career, as is lying and fabricating, suchas claiming to report from a certain area whereyou never were.Interviewing Victims and AllegedPerpetratorsVictims. Interviewing victims must be done withcare. It is important to maintain journalisticdetachment and question facts and assertions, aswith any source. But victims may be traumatisedby their experience, and must be treatedsensitively. This means gaining people’s trust,letting them speak at their own pace and notforcing them. It means being honest about whoyou are, what you intend to do, and how much (orhow little) you can help them.Choose a location that is private, so that theinterviewee feels comfortable and other peoplecannot eavesdrop on your conversation. If youhave to work through an interpreter, make it clearthat you need a direct translation. Emphasize thatyou need to know exactly what your intervieweesays, with no additional information.Avoid leading questions. Ask, “What did yousee?” not “You saw the soldier pull the trigger,didn’t you?” Try to interview people separately, asgroup pressure can easily influence andexaggerate a story.34 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGConfirm basic details of the person you areinterviewing and carefully go through thesupporting details of their story, includingdescriptions of places, names of those present,their positions or ranks, as well as recognizableuniforms or insignia of alleged perpetrators. Askseveral times about timing and the sequence ofevents, and compare the stories of differentwitnesses.Most importantly, recognize that you have aduty to try to ensure that your interview does notbring them into more harm. Victims have beenkilled after talking to reporters, if they have beenseen giving an interview, if they have beenrecognized on a televised report, or if a reporter’snotebook has been seized (or lost and recoveredby the wrong person).Alleged Perpetrators. If you are writing a storyabout a human rights violation, or even a warcrime, where possible you should seek tointerview those accused of being responsible. Thisdepends on the risk, but the story will be strongerwith comment from all involved.Be open and honest with those accused. Bevery straightforward, identify yourself clearly, andnever pretend you are someone else or that you areasking about some other matter – this is unethical,and can be dangerous if found out. Explain that youare attempting to establish the truth.Make sure you have researched the situationin great detail, and build up your questionscarefully. Wild or unsupported accusations willresult in a shouting match (or get you into serioustrouble) but will not advance your search forinformation.The basis of the justice system is “innocentuntil proven guilty”. Be diplomatic and keep anopen mind. Don’t be too confrontational, butalways be ready to probe further. Remember toundertake your reporting with a cautious andprecise mind, sceptical both of the justificationsof the accused and of the claims of theaccusers.War and Peace ReportingIt is often said that when the first shot is fired, truthis the first casualty. Governments and militarycommanders engage in propaganda and lies, thechaos of conflict makes comprehending the fullfacts extremely difficult, and emotions affectingboth civilians and reporters all conspire to maketruth a rare commodity.War Reporting requires the same internationalstandards of journalism that apply in anycircumstance, but brings particular difficulties andindeed personal challenges.Reporting on a conflict on your own doorstepcan be particularly difficult. Rwandan journalistThomas Kamilindi, who reported for the BBCbefore the 1994 genocide, knows how hard it canbe in such a situation to remain objective:Sometimes reporters think they are supermen orwomen, but no, we are human beings. We havefeelings like everyone else, and we are membersof society. And we can be caught up in the circleof violence like anyone else. We can identify withthe group responsible for violence, like othermembers of society can do. So that is why asreporters we should be more objective.In 2003, Kamilindi saw fresh evidence of thebreakdown of journalistic standards during thecivil war in Ivory Coast:I told them, “Look at what you write. Listen towhat you say and analyse yourself. If you aredemonising people, if you are stigmatisingother tribes, other clans, you’re involved inviolence. How did you get there?” They don’tknow.I said, “You’re no longer reporters…. I would liketo congratulate the politicians who managed toco-opt you, and co-opt you without yourknowing it…. Now stand up and be reporters,do you job, report the facts objectively.”Mark Doyle, a BBC correspondent who worked inRwanda in 1994, was one of the few internationaljournalists to arrive in Kigali in the first days of themassacres. At that point, no journalists had a cleargrasp on how to describe what they werewitnessing:In the early days, I was guilty of misinterpretingthe situation. I spoke of chaos andindiscriminate killings, but gradually I learnedwith my own eyes that it was not chaotic, and itwas far from indiscriminate. . . .I had personal, eyewitness evidence that progovernmentmilitias were killing people in largenumbers. . . . And from then on, I started touse the word “genocide”.REPORTING JUSTICE ■ 35


CHAPTER 6 ■ CONFLICT REPORTINGThese reflections illustrate the challenge ofremaining objective in a war zone. Emotions andpersonal reactions are powerful, and may causeyou to over or under-report the scale of a tragedyunfolding before your eyes.(Remarks by Thomas Kamilindi and MarkDoyle made at a symposium on the media and theRwandan genocide, held at Carleton University(Canada) in 2004. http://www.carleton.ca/jmc/mediagenocide/aboutsymp/index.html.)Peace reporting refers to strategies to try toensure that your reporting does not fuel conflictand may even contribute to reconciliation.Understanding conflict – An understanding ofconflict demonstrates that conflict is common inhuman life but does not inevitably spell violence.War is thus not inevitable, but happens for reasons(power, resources, etc) and is driven by people.Conflict resolution seeks not to create a winnerand a loser but rather to address core causes of adispute and identify ways to satisfy basic needswhile avoiding violence. Good reporting can helpmove away from concepts of inevitable communityconflict, and seek to identify underlying causesand possible compromise solutions.Framing conflict – Journalism depends onshorthand references to convey group identitiesand help the reporter tell a story. But simplistic useof ethnic or religious identifications, or open use ofconcepts of “us and them”, can be highlyprovocative. Such abbreviated terminology,thoughtlessly used, can contribute to a sense ofpolarisation suggesting that conflict is inevitable.Sensitive reporting strives to present thecomplexity of the situation. Careful journalism inconflict areas will frame stories in the context notjust of leaders and groups, but of real people andtheir diverse experiences and views.Emotional language – War is highlyemotionally charged and journalists are subject,just like everyone, to strong feelings. But thebasics of responsible journalism demand thatreporters absolutely avoid:■■■Hate speechDehumanising languageIncitement to violenceEven words in common usage can be inflammatory.The common terms “terrorist” or “freedom fighter”are loaded with connotations, whereas phrasessuch as “armed fighters” or “guerrillas” are moredescriptive and less emotional. Journalists inconflict zones should strive for as calm and asmoderate a tone as possible, especially whenreferring to opposing sides.Responding to Crisis – When a disasterstrikes, and the journalistic adrenaline kicks in,that is precisely the time to work with special care.When a bomb goes off, victims are in pain, andpoliticians hit the airwaves with their accusations,this is a time of great risk for a journalist. In truth,nothing is proven, and there is no way tocomprehend the real meaning of the incident insuch chaotic circumstances. Jumping to the“obvious conclusion” – i.e., that one ethnic grouphas mounted a deliberate attack on another – maybe wrong, and can escalate conflict on the basisof very unclear or incomplete information. Goodjournalism is ready not just to publish the facts butalso to indicate what is not known with certainty.Reporting the Peace – Even amid war thereare signs of civil society activity, of development, ofhope. There are communities who refuse to fall intoconflict, and individuals across conflict lines readyto assist and support each other. While extremistsgrab the headlines and peace agreements falter,substantial proportions of society will opposeconflict and continue working to redevelop acommunity or achieve a local agreement.Balanced reporting in a conflict area recognizesthat violence and war are not the only news.Cross-community Reporting – War is aboutdivision, and an invaluable mechanism for peacereporting is to assemble partnerships or reportingteams across a community divide, and evenacross a conflict frontier. An article highlightinghuman rights violations on both sides, forexample, can underscore how each side issuffering and feeling remorse. If it is produced byjournalists from both communities it will serve tobuild confidence. Dialogue projects can linkpeople across conflict divides to debate issues,argue differences, and locate solutions.Safety and SecurityJournalism can be dangerous business. Over thepast decade, nearly 350 journalists have beenkilled doing their job. You can never remove theelement of risk, but there are some simpleprinciples which can help you reduce yourexposure in conflict areas.Information and reliable local contacts areyour most important safety measures. Know where36 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGyou are going, know the current situation, and bein close contact with people from the location whocan direct you and drive you safely.Be calm and prepared, so that you are mentallyand physically up to the task. Recognize that yourpersonal safety is your business, and do not leave itto anyone else to make decisions for you. If possible,undertake hostile environment safety trainingbeforehand and carry appropriate medical kit.Most importantly, prioritize your life: never puta story above your personal safety. Always askyourself whether a risk you are about to take isabsolutely necessary.Beyond these core principles, there are a numberof useful tips:There are a number of organizations working inthe field of safety and security for journalists andother professionals in conflict areas. Some ofthese provide valuable, if expensive, training andawareness courses. The International News SafetyInstitute has a code of conduct for newsorganisations.See: www.newssafety.com/safety/index.htmEXERCISES1. What are the three main principles ofinternational journalism?2. What is the first casualty in war and how dojournalists become part of the problem?■■■■■■■■■Do not travel by yourself, and make sure thatsomeone knows where you are going, yourroute, if possibly whom you will meet, andwhen you can be expected to return.Meet unfamiliar contacts in public places.Do not travel in military vehicles or wearmilitary attire or clothes which could be takenfor a uniform. Never carry a weapon.Carry photographic identification and do notpretend you are not a journalist. In most cases,be sure to identify yourself, and your vehicle,as media, but check on local conditions so asnot to draw attention to yourself.Plan a fast and safe route out of any dangerzone, and wear comfortable clothing andshoes so that you can move with ease.Be aware of local sensitivities before takingpictures. In some cultures, people do not wantto be photographed. Taking photographsaround military installations without permissionwill often result in your camera, and you, beingseized.If working both sides of a front line, do notprovide information to the other side.Take cigarettes and other small items assweeteners with you. Take emergency funds anda spare copy of your ID in a concealed place.Keep emergency phone numbers at hand.If troops or locals appear threatening, staycalm and try to appear relaxed. Act friendlyand smile. Remember that they may be poorlytrained, inexperienced – and very frightened –and will be suspicious of why you are in aconflict area.3. What are the three key principles for personalsafety and security in a conflict area?4. In this chapter you’ve learned about some ofthe problems of field reporting in the middle ofa conflict. Consider the following ethicaldilemmas, and discuss them with colleagues ifyou have a chance.a) You are a radio reporter visiting a camp forinternally displaced persons, in northernUganda, where the rebel Lord’s ResistanceArmy (LRA) has been operating for ten years.You ask camp residents about whether theywant the LRA put on trial for war crimes andyou get several outspoken interviews. Yourreport will be broadcast on the local radiostation. You know that the rebels listen to it,and that they have a history of attacking thecamps. Should you give the interviewees falsenames? Should you change the name of thecamp itself?b) A young man walks into your newsorganisation and asks for you by name. Hesays he has important information about amassacre and wants to take you to the sceneto show you what happened. What efforts canyou make to establish the facts? What shouldyou publish?c) A rebel organisation calls your newspaper toclaim responsibility for a massacre. Theythreaten to kill another group of civilians unlessyou agree to publish their statement of aims.Under local press laws, publishing a statementfrom this rebel group is punishable by a stifffine or time in jail. What do you do?REPORTING JUSTICE ■ 37


CHAPTER 7 – ALTERNATIVE JUSTICEMECHANISMSInternational courts and tribunals are not the onlyway of dealing with serious human rightsabuses during conflicts. Some countries havechosen to deal with the past through truth andreconciliation commissions, which put a premiumon discovering what happened rather thanpunishing perpetrators. In some cases, countrieshave set up truth and reconciliation commissions inaddition to war crimes courts. In other countries,there have been more traditional methods ofseeking justice. This chapter explains some ofthese alternatives.Customary Law CourtsIn this section, the term “customary law” is used tomean local hearings, investigations or courts runon traditional lines and with different rules from fullcourts of law.The most interesting example of howcustomary law is being used to try human rightsviolations is to be found in Rwanda. There, in2005, local village courts known as Gacaca beganto meet once a week to discuss who did whatduring the 1994 genocide.Thousands of people had been in jail since1994, waiting for their cases to be heard in theregular courts. But because of a shortage ofjudges, lawyers and funds, it was estimated thatthe process could take a hundred years.It was to tackle this crisis that the Rwandanauthorities set up the Gacaca courts. The nameGacaca comes from the traditional Kinyarwandaword for community-based justice and literallymeans “on the grass”. The hearings are held inthe open air. Respected members of the localcommunity are elected to act as judges and givenbasic training in legal matters. It is the duty ofevery inhabitant of a village to attend the Gacaca.The job of these traditional courts is to makedecisions about people accused of lesser crimes.Anyone accused of murder or rape will have theircase heard in a higher court. But the decision aboutwhether to transfer a case is taken at the Gacaca.The main criticism of these kinds of courts is thatthey may not be fair. Critics have suggested thatpeople attending them might be swayed by majorityviews or cowed into silence; or that they might usethe system to settle old grievances. In 2005, groupsof Hutus fled across the border into Burundi,claiming that Gacaca was designed to destroy them.Gacaca are difficult for a journalist to cover,not only because of the controversy surroundingthem, but because the sessions take place inremote villages.Truth and Reconciliation CommissionsTruth commissions are not courts. Instead, theirprimary function is to establish what happened.Often, they have been empowered by theirstatutes to either offer an amnesty or a pardon tosomeone who admits to having committed humanrights abuses or war crimes. Or they may be ableto offer a reduced sentence – akin to pleabargainingin a regular court, where a prosecutormay ask for a reduced sentence for someone whohas agreed to co-operate.Obviously, this is controversial – not least fromthe point of view of victims or relatives of victims.Yet sometimes countries that have been throughextremely painful periods have decided this is thebest way forward in the interests of truth,reconciliation and peace.You may have to cover such institutions, inwhich case you will have to explain to the publicwhy such an approach was chosen, what it isexpected to achieve and whether the process isworking. What matters above all in these cases isthe view of the victims or their relatives. The workof the truth commission is directly concerned withvictims and if you do not talk to them, you will missthe whole point of the story.South AfricaThe best-known of these organisations was inSouth Africa – the Truth and ReconciliationCommission, known as the TRC. It was set up in1995, to deal with the effects of apartheid.The TRC investigated human rights abuses,gave financial support to victims and gaveamnesties to people. It was an alternative tocriminal prosecutions.Children in Northern Uganda are given rosaries by theirparents in the hope this will protect them from the Lord’sResistance Army.Credit: Marcus Bleasdale38 ■ REPORTING JUSTICE


CHAPTER 7 ■ ALTERNATIVE JUSTICE MECHANISMSTo get an amnesty, a person had to prove thatwhat they had done was “with a political aim” andto show that they were speaking the whole truth. Iftheir testimony was unconvincing, they were notgiven amnesty. Out of more than 7,000 who askedfor amnesty, only 849 were granted it – whichshows how rigorous the process was.Even so, the issue of amnesties provoked realopposition. But the main bone of contention was thesize of reparations to victims. The amounts werethought to be far too small. As a journalist, it’s worthconsidering what real powers a truth commissionhas and whether those powers are being used inways that earn the respect of the wider community.The South African experience has encouragedother countries to set up commissions, mainlybecause it set an example for exposing the truthabout the past and placing the victims centrestage. That does not mean it achieved all it hadhoped, in terms of “reconciliation”. It is still asubject of considerable controversy in South Africa.Sierra LeoneIn Sierra Leone, a Truth and ReconciliationCommission was set up separately from aninternational criminal tribunal known as the SpecialCourt for Sierra Leone. It was intended to be partof the healing process following the devastatingcivil war, to create an impartial record of what hadhappened and try to explain why it had happened.Operating at the same time as the SpecialCourt, Sierra Leone’s TRC brought into focus thedifferent roles of courts and truth commissions andthe potential pitfalls that could occur if they existside by side. For instance, some people stayedaway from Truth Commission meetings becausethey feared that any information they gave wouldfind its way to the Special Court.This is an excerpt from an article by a Rwandanjournalist working for the Hirondelle news agencybased in Arusha, Tanzania.Gacaca Soul Tested in Rwandan VillageMugusa, July 8th, 2005 (FH) – Boniface Seruntaga,59, would be considered a hero by someRwandans but most in his village probably seehim as a traitor. He is leading a campaign againstsilence on crimes committed in his neighbourhoodduring the 1994 genocide.“People of God, speak out. Tell the truth. Youcan’t hide for ever,” the diminutive formerprisoner calls out to over 100 of his communitymembers seated on patches of shade in a thinforest on the edge of his village. . . . The village ismeeting here for this week’s session of Rwanda’ssemi-traditional genocide courts known as Gacaca.Elected members of the community preside overthe courts and everyone else is encouraged totestify, prosecute, defend or cross-examine theaccused…Rwanda is counting on its people invoking alonMg-held spirit of honesty by community membersstanding before their neighbours. This was thebackbone of the original traditional Gacaca courts.“I wonder how everyone can be so quiet,”Silver, a genocide survivor in his late forties saysafter a fruitless inquiry into the killing of hisbrother during the genocide. “It is very surprisingand sad that none of you knows anything or sawanything about a murder committed amongyou.…You know what happened,” Silver pleads,as a tear drop rolls down his cheek. Everyone elseremains silent.Suddenly, Seruntaga raises on his feet. “Wecan’t go on like this,” he shouts. “I hoped theconcerned men would stand up and tell us thetruth. They are here among us. Silver is right.”Seruntaga, who has himself confessed tomurdering two neighbours during the genocide,calls out the names of people he claims to have seenat Silver’s house the day his brother was killed.As soon as he completes his list, about a dozenmen, visibly angry, stand up and either walk towardsthe front of the gathering or start denyingSeruntuga’s allegations from where they are standing.“It is not yet time for trials,” the presidingjudge reminds the court. “Each one of you willhave time to talk about this when the trials begin.We are now only investigating.”Not all places in Rwanda are like Mugusa.Some communities have seen more guilty pleasand impressive numbers of people comingforward with testimonies. But Mugusa is not anisolated example either. Government, Gacacaofficials and observers have acknowledged thatthe courts are facing severe difficulties gettingevidence in some areas. These are the places wherethe soul of Gacaca is being tested.© Hirondelle News Agency40 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGThe commission itself has suggested thatcourts “are limited in their ability to find thebroader truth”:Truth and Reconciliation Commissions representone of the most viable means of securing asustainable peace. Such commissions canstrengthen the peace through the establishmentof an impartial historical record of the conflictand the creation of a public understanding ofthe past that draws upon broad basedparticipation. . . . It is only when the full truth (oras close to the full truth as possible) is placedsquarely before the public that society canexamine itself honestly and robustly. It is thiscathartic exercise on the part of the nation thatpermits it to take genuine measures to preventthe repetition of the horrors of the past.These sentiments apply to tribunals as well as truthand reconciliation commissions, and underscorethe importance of the role of a journalist incontributing to the process by reporting reliablyand responsibly on war crimes and justice issues.BurundiA new example for Africa was created in June2005, when the UN adopted a resolution to createa truth commission and a special court toinvestigate and prosecute war crimes and humanright violations during Burundi’s civil war. Thecommission, with three international and twoBurundian commissioners, will investigate killingswhich took place from independence in 1962 untilthe signing of the Arusha Peace Accord in 2000.Their findings would help the special court toprosecute those responsible for the cycle ofmassacres of Hutus and Tutsis.A list of truth commissions is available throughthe library of the United States Institute of Peace.www.usip.org/library/truth.htmlTraditional RitualsThere are other ways of dealing with the aftermathof conflict that focus on reconciliation rather thanprosecution. One was highlighted in 2005, at a timewhen the ICC had issued warrants of arrest againstseveral leaders of the Lord’s Resistance Army(LRA), a rebel group operating in northern Uganda.They were accused of crimes against humanity.Meanwhile, there was a peace process goingon in northern Uganda, and local leaders from theAcholi ethnic group told the ICC that sometraditional forms of justice could be moresuccessful than the court system. They said thatprevious members of the LRA had been heldaccountable this way for what they had done, hadmade promises about the future and had againbecome part of the community.A key factor in this case is that some 20,000of those who took part in the LRA’s atrocities werechildren kidnapped from villages and forced to actas porters, sex-workers or soldiers. For somepeople, punishing them made little sense.A recent IWPR report from northern Ugandahighlighted the different views that local peoplehave about the merits of prosecution versus a truthand reconciliation without penalties.One woman in a refugee camp said LRAleader Joseph Kony should definitely be broughtbefore the ICC. “Why are they taking so much timeto catch Kony?” she asked. “He should bearrested and punished for the suffering he has putus through. He should pay, instead of comingback and getting a big job when our whole liveshave been destroyed.”But a young man in the camp worried that theICC’s actions could complicate and evenendanger the delicate mediation attempts underway. Under the amnesty scheme that is part of themediation, “at least the rebels allowed somechildren to come back home”, he said. “Now theyare going to run further away, fearingimprisonment, and they will take more of ourbrothers and sisters.”EXERCISESIn this chapter, we have looked at systems otherthan courts and tribunals for dealing with pastconflicts. Consider the following issues:1) How important is it to have a historical record?2) Is it always essential to punish war criminals?3) What ways might local leaders use to deal withjustice issues in your community? Are theyenough to cope with people who havecommitted rape or murder? Would victims ortheir families accept the perpetrators of suchacts back in their midst?REPORTING JUSTICE ■ 41


CHAPTER 8 – THE LAWThis chapter will provide a brief overview ofthe law used by the International CriminalCourt and other tribunals, to tryindividuals suspected of war crimes orother grave human rights violations.The three categories of crimes over whichinternational courts have jurisdiction are:■■■War Crimes – known technically as Violationsof the Laws and Customs of War;Crimes Against Humanity;Genocide.These categories are broken down into thosecovered under treaty law and those covered undercustomary law – the term given to an unwrittenbody of law that is constantly changing. It appliesto state practices that are so “widespread,representative and virtually uniform” that they areuniversally accepted as general rules by whichstates are bound.War CrimesA war crime is a serious violation of internationalhumanitarian law – a mixture of multilateraltreaties, UN Security Council resolutions,customary law and precedents set by variousinternational courts – committed during an armedconflict.Ethnic CleansingThe term “ethnic cleansing” is often heard inrelation to war crimes. It refers to thedeliberate, forcible displacement ofpopulations belonging to a particular ethnic orreligious group. The action taken can beintimidation, deportation, or plain murder,but the object is the same – to remove thetarget group comprehensively andpermanently.Ethnic cleansing is a descriptive termwhich may include a range of acts outlawedby existing laws and conventions – forinstance, murder, sexual abuse, and thedestruction of homes and of cultural orreligious sites important to the community.The actual deportation of civilianpopulations is barred by the fourth GenevaConvention while Additional Protocol IIextended the prohibition to “noninternationalarmed conflicts”. TheNuremberg charter said that crimes againsthumanity included “murder, extermination,enslavement, deportation, and otherinhumane acts committed against anycivilian population, before or during a war”.Crimes Against HumanityAt the International Military Tribunal in Nuremberg,crimes against humanity were defined as:Murder, extermination, enslavement,deportation, and other inhumane actscommitted against civilian populations, beforeor during the war; or persecutions on political,racial or religious grounds in execution of or inconnection with any crimes within thejurisdiction of the Tribunal, whether or not inviolation of the domestic law of the countrywhere perpetrated.The statutes of all subsequent criminal tribunalshave included crimes against humanity.The UN tribunals for the former Yugoslaviaand Rwanda expanded the list to include rapeand torture. The International Criminal Courtexpanded it further, to include enforceddisappearance and apartheid.They all state that crimes against humanity areapplicable irrespective of whether the perpetratoris a citizen of the country where the crime wascommitted and regardless of whether the crime iscommitted during war or peace. They also statethat the crimes must be relate to the persecutionof an identifiable group of persons.Immaculate (32) in Dro Dro hospital north of Bunia, Ituriprovince Eastern Congo awaits treatment from localswho have no medical supplies.Credit: Marcus Bleasdale42 ■ REPORTING JUSTICE


CHAPTER 8 ■ THE LAWGenocideIn December 1948, the UN General Assemblyadopted the Convention on the Prevention andPunishment of the Crime of Genocide, which cameinto effect in January 1951.The treaty outlaws genocide, defined as “anyof the following acts committed with intent todestroy, in whole or in part, a national, ethnic,racial or religious group, as such”:■■■■■Killing members of the group;Causing serious bodily or mental harm tomembers of the group;Deliberately inflicting on the group conditionsof life calculated to bring about its physicaldestruction in whole or in part;Imposing measures intended to prevent birthswithin the group;Forcibly transferring children of the group toanother group.More than 130 nations have ratified the treaty,which not only confirms genocide as a crime butrequires signatories to the treaty to take measuresto prevent and punish actions of genocide in warand peacetime. But it was 50 years before the lawwas enforced anywhere in the world.In September 1998, the International CriminalTribunal for Rwanda found Jean-Paul Akayesu,the former mayor of a small town in Rwanda, guiltyof nine counts of genocide. Two days later, JeanKambanda became the first head of governmentto be convicted of genocide.Where did the word “genocide” comefrom?The term “genocide” was coined in 1944 by aPolish Jewish scholar named Raphael Lemkin,who defined it as “a wilful attempt to destroyan ethnic group”.Lemkin had long been concerned aboutthe crimes committed in wartime, and duringthe Nuremberg trials he lobbied prosecutorsuntil eventually they included genocide in thecharges. The indictments against some of themajor war criminals tried at Nurembergaccused them of having conducted“deliberate and systematic genocide”.It is important to note that, as defined, thecrime of genocide requires proof of intent todestroy a group of people. But it also says intent todestroy a group can be “in whole or in part”. Thusthe first conviction for genocide in the Yugoslavtribunal related to the massacre of BosnianMuslims at the besieged town of Srebrenica.Conventions: An OverviewThe Hague ConventionsIn 1899, the Netherlands convened aninternational conference in The Hague, whichresulted in the prohibition of all weapons thatcause “unnecessary suffering” or “superfluousinjury”, on the grounds that they were contrary tothe laws of humanity. Among the weaponsbanned for military use was the hollow-point ordumdum bullet, because it caused greater injurythan a conventional projectile. This was the firstmajor codification of laws and customs ofwarfare.In 1907, the second Hague conventionexpanded these provisions to include additionalweapons and to limit warfare to attacks againstobjectives relevant to the outcome of militaryoperations. By the outbreak of World War I, therewas a consensus among states that violations ofthe Hague conventions constituted war crimes.However, as time went on, new weapons causedever greater human suffering, requiring additionalregulation.The 1949 Geneva ConventionsIn 1949, the Swiss government convened aninternational conference to establish laws thatwould further limit the barbarity of warfare. Theresult was the four Geneva conventions of 1949,which form the backbone of internationalhumanitarian law.Unlike the Hague conventions, which limitedthe type of permissible weapons in war, theGeneva conventions were designed to provideprotection to civilians, and to combatants whowere no longer able to fight because they hadsurrendered, been captured or injured. Eachconvention offers protection to a particularcategory:The First Geneva Convention protectssoldiers wounded in the battlefield.The Second Geneva Convention expandedthat protection to cover combatants wounded orshipwrecked at sea.44 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGThe Third Geneva Convention providesprotections for prisoners of war.The Fourth Geneva Convention providesprotection for civilians caught up in war.Together, the four Geneva conventions of 1949spell out what is legal and what is not in aninternational armed conflict. Although they arelong and detailed, they essentially come down tothe following basic rules:■■■■■■■It is forbidden to kill or injure an enemy whosurrenders.The wounded and sick shall be collected andcared for by the party to the conflict which hasthem in its power.Hospitals, ambulances, medical personnel andany building or automobile with the Red Crossor Red Crescent emblem must not be harmed.Parties to a conflict must refrain from usingweapons or methods of warfare that causeunnecessary losses or excessive suffering.Captured combatants and civilians underenemy authority are entitled to respect for theirlives and dignity. The authorities in chargemust protect them against acts of violence, aswell as enable them to correspond with theirfamilies and receive humanitarian aid.Captured combatants cannot be punished forlawful acts of war. If they are accused ofunlawful means, they are entitled tofundamental judicial guarantees. They mustnot be held accountable for an act they did notcommit, nor subjected to physical or mentaltorture, corporal punishment or cruel ordegrading treatment.Parties to a conflict shall at all times distinguishbetween the civilian population andcombatants and refrain from targeting thecivilian population. Attacks may only bedirected against military objectives.In addition, the conventions highlighted thefollowing grave breaches as particularly heinouscrimes worthy of prosecution:Wilful killing; torture or inhuman treatment,including medical experiments; wilfully causinggreat suffering or serious injury to body orhealth; extensive destruction and appropriationof property not justified by military necessity;forcing a prisoner of war or civilian to serve inthe forces of a hostile power; depriving aprisoner of war the right to a fair trial; unlawfuldeportation or transfer of a protected civilian;unlawful confinement of a protected civilian;the taking of hostages.In the decades following the 1949 Genevaconventions, warfare underwent a profoundchange. While World Wars I and II wereinternational armed conflicts, the emergence ofnew nation states brought wars of nationalliberation or self-determination. Although theGeneva conventions were clear on the laws of warfor an international armed conflict, they fell short ofregulating civil wars involving guerrilla armies, oropposing forces within a state.Article 3 of each of the four conventions –frequently referred to as Common Article 3 – calls onparties to an internal conflict to respect some basicprinciples of humanitarian behaviour, including:providing humane treatment to civilians andcombatants who have laid down their arms, or are nolonger able to fight; and providing medical treatmentto the wounded and sick. However, it does not conferany special status on captured combatants.Rights and Duties of CombatantsThis list spells out how combatants mustbehave, to be entitled to protection under theGeneva conventions:■■■■Combatants must distinguish themselvesby carrying their arms openly and wearinguniforms or other markings showing theyare part of an organised fighting force.Combatants who meet these criteria mustbe considered prisoners of war (POWs) ifcaptured by opposing forces and must betreated humanely, not subjected to torture,violence or intimidation. When questioned,they are only required to give rank, date ofbirth and serial number.Combatants who deliberately fail todistinguish themselves as such, and thusendanger civilians by attempting to blendin with them, are not entitled to protectionunder the Geneva conventions.If it is unclear whether a person is entitledto POW status, he must be treated asthough he is, until a “competent tribunal”determines his status.REPORTING JUSTICE ■ 45


CHAPTER 8 ■ THE LAWSoldiers and GuerrillasIn contemporary international humanitarian law(such as the Geneva conventions), the termcombatant means both a soldier or an irregular,whether a volunteer, a conscript or a reservist, amember of a paramilitary group, a militia or arebel force, who is participating or has the rightto participate in armed conflict.A combatant can kill enemy soldierswithout fearing that they will be tried for theusual criminal offence of murder, and ifcaptured, he or she must be treated as a prisonerof war rather than placed in an ordinary prison.That includes those suspected of committingwar crimes or other breaches of internationalhumanitarian law.Members of the armed forces, and all otherstate-run paramilitary groups such as apresidential guard, the interior ministry orsecurity agency’s uniformed military forces, andothers would count as combatants if they areused in warfare. They should be under acommand responsible for the conduct of itssubordinates to a party to the conflict, be subjectto an internal disciplinary system that enforcescompliance with the laws of armed conflict, andthey should wear uniforms or combat gear thatwill distinguish them from the civilianpopulation.In Rwanda, the youth wing of the rulingparty in 1994, the Interahamwe, was responsiblefor many of the worst atrocities during thegenocide. The politicians who created theInterahamwe, its national leadership, andseveral of its leaders in specific regions are beingheld accountable for many of the actions of thewhole militia group at the ICTR. Theprosecution has described the militia as thespearhead of the genocide. Georges Rutaganda,the second vice-president of the Interahamwewas sentenced to life imprisonment at the ICTRin 1999.In international conflicts, irregular forcesare considered lawful combatants if theyadhere to certain standards. These includethat they distinguish themselves from thecivilian population (i.e. look like combatants,for example wearing uniforms); carryweapons openly during engagements ordeployments; and are commanded by aresponsible officer. They are generallyexpected to comply with international rulesrelating to armed conflict.The Additional Protocols to the Genevaconventions extend the protections granted tocombatants and civilians in non-internationalconflicts, and Additional Protocol II states that ifa party to a conflict is “under responsiblecommand” and controls part of the nationalterritory, so that it is able to carry out “sustainedand concerted military operations”, itsinsurgents are entitled to the protections grantedto prisoners of war.Since most wars in the decades after 1945were internal conflicts, the protections specified inCommon Article 3 were deemed to be insufficient.So Switzerland convened a conference thatresulted in the 1977 Additional Protocols to theGeneva conventions, which extended theprotections granted to combatants and civilians in“non-international” conflicts.Additional Protocol I extends the protectionsgranted to soldiers and civilians in wars of selfdeterminationand national liberation. It alsocommits states not to recruit child soldiers, definedas those under the age of 15, and to ensure thatchildren are not actively involved in combat.Furthermore, it also requires militarycommanders to ensure that subordinate soldiers areaware of their obligations under internationalhumanitarian law and to prevent and stop anybreaches of these rules. This underlines theimportant concept of command responsibility –already featured in many ICTY cases – where anofficer can be held accountable for a war crimecommitted by men under his command even if hewas not present and did not order them to commit it.Additional Protocol II supplements CommonArticle 3 with several more specific provisions. Itstates that if a party to a conflict is “underresponsible command” and controls part of thenational territory, so that it is able to carry out“sustained and concerted military operations”, itsmembers are entitled to the protections granted toprisoners of war.46 ■ REPORTING JUSTICE


APPENDIX 1: Examples of Court and Other ReportsExample 1: Courtside“I Never Saw Ntahobali atRoadblocks,” Says WitnessArusha, February 2nd, 2006 (FH) –A witness called in defence of ArseneShalom Ntahobali, an alleged formermilitia leader, Thursday told theInternational Criminal Tribunal forRwanda (ICTR) that contrary toprosecution allegations, he had“never” seen the accused manning aroadblock during the 1994 genocide.The witness code-named “WCNJ” toprotect his identity admitted thatroadblocks were set up around Butare(southern Rwanda) during themassacres of Tutsis and that duringthat time he had never met Ntahobali.“I never met the accused at theroadblocks”, explained the witness,adding that he had criss-crossed thetown many times on his way to visithis sister.WCNJ went on to challenge theallegations of previous witnesses thata roadblock had been set up near theresidence of Ntahobali’s parents.In February 2004, one witness testifiedthat on April 21, 1994 he had seenTutsis arrested at that roadblock,including women who were raped andlater killed on the orders of Ntahobali.Many other witnesses made the sameallegations.Arsene Shalom Ntahobali is on trialtogether with his mother, formerminister of gender PaulineNyiramasuhuko and four other formerofficials of Butare.Nyiramasuhuko, like her son, is alsocharged with rape. The trial continuesMonday.© Hirondelle News AgencyExample 2: Courtside with “main story” plus secondary mattersMilosevic CourtsideSenior army officer says Milosevicpersonally insisted on military andpolice discipline during Kosovoconflict.By Michael Farquhar in London(IWPR, 11-Nov-05)The trial of former Yugoslav presidentSlobodan Milosevic heard evidencethis week that the accused personallyordered senior army and policeofficers to take a tough stance oncrimes committed by their men duringthe Kosovo conflict.Milosevic is accused of overseeing asystematic campaign of murder, rapeand looting directed against Kosovo’sethnic Albanian population in 1998and 1999, which allegedly drovesome 800,000 civilians from theirhomes.But the latest witness to speak in hisdefence, retired Yugoslav Army, VJ,security chief Geza Farkas, said hewas present on two separate occasionswhen the former president stressedthe need to investigate and prosecuteall members of the security servicessuspected of such offences.Milosevic was also emphaticallyopposed to the presence of Serbparamilitaries in Kosovo, the witnessclaimed.In a further development, the lasthearing scheduled this week wascancelled after the accused failed toshow because of bad health. With asubsequent medical report kept underwraps, it remained unclear whetherMilosevic’s latest bout of ill healthrelates to long-term problems causedby his high blood pressure.Testifying prior to this halt inproceedings, Farkas told judges thathe was appointed head of security ofthe VJ on March 24, 1999, the sameday that NATO began an 11-weekbombing campaign against Yugoslaviain an effort to halt what it consideredto be brutal treatment of the localAlbanian population.A month before his appointment,said Farkas, when he was still anassistant defence minister in theYugoslav government, Milosevichad summoned him to a meeting toinform him of this new posting. Thepresident apparently tookadvantage of this early opportunityto insist on the importance ofpreventing soldiers from tarnishingthe image of the VJ with criminalbehaviour.Farkas recalled that after he took uphis new job on March 24, what wereinitially sporadic reports of crimescommitted by VJ troops in Kosovobegan to gather pace. On May 1, onthe orders of VJ chief of staffDragoljub Ojdanic, he set out fromBelgrade to investigate.Farkas argued that some crimesblamed on the army in Kosovo in factresulted from blood feuds betweenethnic Albanian families. In othercases, he said, those responsible were“infiltrators” who had got hold of VJuniforms. But he acknowledged thatindividual members of the army alsostepped out of line.Having returned from Kosovo andcompiled a report on his findings,Farkas met with Milosevic and othersenior police and army officers onMay 17. Milosevic apparentlyreiterated that criminal behaviourwithin the army and the police shouldbe stamped out and that any instanceswhich occurred were to be prosecutedimmediately.After the meeting, Farkas said, heordered a team headed by his deputy,Aleksander Vasiljevic, to travel toKosovo. A few weeks later, Vasiljevicapparently reported that prosecutionswere underway and that“investigations had been intensified”.The witness claimed that some 382prosecutions were initiated during theconflict in Kosovo for crimes includingtheft, rape and murder. “What thearmy could do, it did,” he insisted.Prosecutors say VJ documentationshows that the army in fact only everconvicted a handful of its members formurders committed in Kosovo. Farkassaid the process of prosecutions wasinterrupted when NATO bombingforced a withdrawal from the territoryin June.Farkas also said that at the meeting onMay 17, 1999, Milosevic had beendispleased to hear that the Serbianpolice had accepted an offer of 30 menfrom the notorious paramilitary leaderZeljko Raznatovic, better known asArkan. Some of these individuals werealready under investigation for crimes,Farkas told judges.Insisting that the 30 men in questionbe removed from Kosovo, Milosevicapparently declared “in no uncertainterms” that such groups should not beallowed to operate in future.The witness dismissed a conflictingaccount of the same meeting given byVasiljevic, who gave evidence in thetrial in February 2003. Vasiljevictestified that, on hearing that Arkan’smen were operating in Kosovo,Milosevic “didn’t react at all, as if ithadn’t been mentioned”.Farkas admitted that, unlike Vasiljevic,he did not have any notes from themeeting.48 ■ REPORTING JUSTICE


APPENDIX 1: Examples of Court and Other ReportsExample 1: Courtside“I Never Saw Ntahobali atRoadblocks,” Says WitnessArusha, February 2nd, 2006 (FH) –A witness called in defence of ArseneShalom Ntahobali, an alleged formermilitia leader, Thursday told theInternational Criminal Tribunal forRwanda (ICTR) that contrary toprosecution allegations, he had“never” seen the accused manning aroadblock during the 1994 genocide.The witness code-named “WCNJ” toprotect his identity admitted thatroadblocks were set up around Butare(southern Rwanda) during themassacres of Tutsis and that duringthat time he had never met Ntahobali.“I never met the accused at theroadblocks”, explained the witness,adding that he had criss-crossed thetown many times on his way to visithis sister.WCNJ went on to challenge theallegations of previous witnesses thata roadblock had been set up near theresidence of Ntahobali’s parents.In February 2004, one witness testifiedthat on April 21, 1994 he had seenTutsis arrested at that roadblock,including women who were raped andlater killed on the orders of Ntahobali.Many other witnesses made the sameallegations.Arsene Shalom Ntahobali is on trialtogether with his mother, formerminister of gender PaulineNyiramasuhuko and four other formerofficials of Butare.Nyiramasuhuko, like her son, is alsocharged with rape. The trial continuesMonday.© Hirondelle News AgencyExample 2: Courtside with “main story” plus secondary mattersMilosevic CourtsideSenior army officer says Milosevicpersonally insisted on military andpolice discipline during Kosovoconflict.By Michael Farquhar in London(IWPR, 11-Nov-05)The trial of former Yugoslav presidentSlobodan Milosevic heard evidencethis week that the accused personallyordered senior army and policeofficers to take a tough stance oncrimes committed by their men duringthe Kosovo conflict.Milosevic is accused of overseeing asystematic campaign of murder, rapeand looting directed against Kosovo’sethnic Albanian population in 1998and 1999, which allegedly drovesome 800,000 civilians from theirhomes.But the latest witness to speak in hisdefence, retired Yugoslav Army, VJ,security chief Geza Farkas, said hewas present on two separate occasionswhen the former president stressedthe need to investigate and prosecuteall members of the security servicessuspected of such offences.Milosevic was also emphaticallyopposed to the presence of Serbparamilitaries in Kosovo, the witnessclaimed.In a further development, the lasthearing scheduled this week wascancelled after the accused failed toshow because of bad health. With asubsequent medical report kept underwraps, it remained unclear whetherMilosevic’s latest bout of ill healthrelates to long-term problems causedby his high blood pressure.Testifying prior to this halt inproceedings, Farkas told judges thathe was appointed head of security ofthe VJ on March 24, 1999, the sameday that NATO began an 11-weekbombing campaign against Yugoslaviain an effort to halt what it consideredto be brutal treatment of the localAlbanian population.A month before his appointment,said Farkas, when he was still anassistant defence minister in theYugoslav government, Milosevichad summoned him to a meeting toinform him of this new posting. Thepresident apparently tookadvantage of this early opportunityto insist on the importance ofpreventing soldiers from tarnishingthe image of the VJ with criminalbehaviour.Farkas recalled that after he took uphis new job on March 24, what wereinitially sporadic reports of crimescommitted by VJ troops in Kosovobegan to gather pace. On May 1, onthe orders of VJ chief of staffDragoljub Ojdanic, he set out fromBelgrade to investigate.Farkas argued that some crimesblamed on the army in Kosovo in factresulted from blood feuds betweenethnic Albanian families. In othercases, he said, those responsible were“infiltrators” who had got hold of VJuniforms. But he acknowledged thatindividual members of the army alsostepped out of line.Having returned from Kosovo andcompiled a report on his findings,Farkas met with Milosevic and othersenior police and army officers onMay 17. Milosevic apparentlyreiterated that criminal behaviourwithin the army and the police shouldbe stamped out and that any instanceswhich occurred were to be prosecutedimmediately.After the meeting, Farkas said, heordered a team headed by his deputy,Aleksander Vasiljevic, to travel toKosovo. A few weeks later, Vasiljevicapparently reported that prosecutionswere underway and that“investigations had been intensified”.The witness claimed that some 382prosecutions were initiated during theconflict in Kosovo for crimes includingtheft, rape and murder. “What thearmy could do, it did,” he insisted.Prosecutors say VJ documentationshows that the army in fact only everconvicted a handful of its members formurders committed in Kosovo. Farkassaid the process of prosecutions wasinterrupted when NATO bombingforced a withdrawal from the territoryin June.Farkas also said that at the meeting onMay 17, 1999, Milosevic had beendispleased to hear that the Serbianpolice had accepted an offer of 30 menfrom the notorious paramilitary leaderZeljko Raznatovic, better known asArkan. Some of these individuals werealready under investigation for crimes,Farkas told judges.Insisting that the 30 men in questionbe removed from Kosovo, Milosevicapparently declared “in no uncertainterms” that such groups should not beallowed to operate in future.The witness dismissed a conflictingaccount of the same meeting given byVasiljevic, who gave evidence in thetrial in February 2003. Vasiljevictestified that, on hearing that Arkan’smen were operating in Kosovo,Milosevic “didn’t react at all, as if ithadn’t been mentioned”.Farkas admitted that, unlike Vasiljevic,he did not have any notes from themeeting.48 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGDuring cross-examination byprosecutor Geoffrey Nice, Farkasdenied that he had been appointed asthe army’s chief of security largelybecause the president considered himto be an easily-manipulated “yesman”.He admitted being an old schoolfriendof VJ chief of staff Ojdanic. Buthe said it was the first time he hadheard Nice’s suggestion that hispredecessor in the post of securitychief had been sidelined afterpublishing an article arguing for amultilateral approach to the situationin Kosovo.Farkas also denied accusations that asthe assistant defence ministerresponsible for Yugoslavia’s civildefence plans in the run-up to theconflict in Kosovo, he had beeninvolved in preparations to secretlyarm the territory’s ethnic Serbpopulation.As evidence for this claim, Niceproduced an order dated May 21, 1998requiring local officials to compile lists“for the purpose of arming of thepopulation”. The document went onto say that the focus should be onprotecting settlements “in which Serbsand Montenegrins are populations in aminority and are increasinglybecoming targets of attacks byAlbanian terrorists”.Farkas replied that the distribution ofweapons was carried out inaccordance with Yugoslav law.The trial will resume on November 15.Example 3: factual reporting on procedural mattersCourt news: Opening Belgrade’sArchives(IWPR, 27-Jan-06)The head of Serbia and Montenegro’sCouncil for Cooperation with theHague tribunal, Rasim Ljajic, has saidthat Belgrade will open its archives toUnited Nations war crimesprosecutors in an effort to endallegations of official obstruction.Geoffrey Nice, the prosecutorpresenting the war crimes case againstformer Yugoslav president SlobodanMilosevic, has been particularly vocalin the past about the difficulty he sayshis office faces in trying to get hold ofkey documents from the Serbianauthorities.A planned trip to Belgrade by chiefprosecutor Carla Del Ponte nextmonth is partly intended to increasepressure to hand over such material,according to her spokespersonFlorence Hartmann.A senior source within the prosecutiontold IWPR that “it remains to be seen”what the outcome of the latest promiseof cooperation will be. The decisionstill needs to be approved by theCouncil of Ministers and, even then,much will depend on how effectivelyit is actually implemented.Example 4: Wider reactions to and implications of a courtroom eventKosovo Jubilant at KLA AcquittalsKosovo’s majority Albanianpopulation welcomes result of Haguetribunal’s first case against formerguerrillas.By Janet Anderson in The Hague(IWPR, 2-Dec-05)The streets of Pristina erupted withflags, horns and celebratory gunfire onDecember 1 as news spread that theHague tribunal had acquitted two ofthe first three members of the KosovoLiberation Army, KLA, ever to facetrial there for war crimes.Judges in The Hague sentenced oneformer foot soldier, Haradin Bala, to13 years in prison for his role in a KLAprison camp in the village of Lapusnikwhere Serbs and suspected Albaniancollaborators were tortured andmurdered in 1998.But they declared themselvesunconvinced that former commandersFatmir Limaj and Isak Musliu hadplayed any role at the facility. Limaj,who held a senior role in the guerrillaarmy which helped drive Belgradesecurity forces out of Kosovo, gained ahigh profile as a politician in the wakeof the conflict.While the verdict has met with apredictably downbeat response inSerbia, reactions amongst Kosovo’smajority ethnic Albanian populationhave been jubilant. Many feel that thecourt ruling, despite confirming thathorrific individual crimes werecommitted, vindicates the KLA as anorganisation.The judgement comes at a particularlywelcome time for Albanians inKosovo, with talks set to begin on thefuture political status of the region.Most hope that the process will resultin independence from Belgrade.Observers in Pristina described acollective sense of relief as thejudgement hearing in the case wasbroadcast live on television screens inhomes and bars across Kosovo.The resulting celebrations were a farcry from the dire predictionspublished in local newspapers of whatmight happen if the three were foundguilty. Just two days before thejudgement was issued, an estimated20,000 people filed through the streetsof Pristina protesting the innocence ofthe three men.When Limaj went to The Hague in2003, Kosovo’s then prime minister,Bajram Rexhepi, declared that the trialwould give the accused “a chance toprove his innocence and the purity ofthe war that was led by the KLA”.Some observers now see particularsignificance in the judges’ decision todismiss charges of crimes againsthumanity against the three accused.They did so on the grounds that therewas insufficient evidence that theatrocities at the Lapusnik camp werecommitted as “part of a widespread orsystematic attack directed against acivilian population”.“It’s been understood here as acleansing of the resistance,” said PetritSelimi, the managing director ofPristina’s new Daily Expressnewspaper. The verdict, he explained,has been “seen as recognition thatthere were [individual] crimes, not acampaign”.Kosovo parliamentarian Enver Hoxhajtold IWPR that the judgement is “agood message while Kosovo’s finalstatus talks are going on”, explainingthat it has given the local population afeeling that they are supported by theinternational community.With Kosovo’s president IbrahimRugova in bad health and formerprime minister Ramus Haradinajcurrently awaiting a Hague warcrimes trial, there have been concernsthat Albanians will lack a strongfigurehead for the talks on Kosovo’sfuture.Analysts in Kosovo told IWPR thatLimaj is viewed by some as having thepotential to fill the vacuum. Selimiexplained that Limaj is now viewed asa “sympathetic figure” because of theREPORTING JUSTICE ■ 49


APPENDIX 1 ■EXAMPLES OF COURT AND OTHER DOCUMENTSdignity with which he went to TheHague.Hoxhaj, who is a senior member ofLimaj’s Democratic Party of Kosovo,PDK, told IWPR that he thoughtLimaj would step back into the“crucial” role he played in the partybefore being indicted. “We missedhim,” he added.The judgement has also served tosupport the view that Haguetribunal’s first case involving formerKLA fighters was in fact onlylaunched as part of an effort to showthe court’s impartiality with regard tothe various parties involved in theBalkans conflicts of the Nineties.A series of senior Serbian generals andpoliticians, including former Yugoslavpresident Slobodan Milosevic, havebeen indicted for their role in allegedethnic cleansing in Kosovo in 1999.There has also been speculation aboutwhat consequences the outcome mighthave on the joint trial of Haradinajand two others said to have been hissubordinates in the KLA. They arecharged with involvement in theabduction and murder of Serbs, Romaand suspected Albanian collaborators.Edgar Chen, a long-time observer ofproceedings at the Hague tribunal forthe Coalition for International Justice,told IWPR, however, that it isimportant to remember that these aretwo distinct cases. “Haradinaj ischarged under a different set ofalleged facts,” he said. “Judges willhave to consider Haradinaj’s case onthe evidence that [prosecutors] and hisdefence presents.”The judges hearing the case againstLimaj, Musliu and Bala in The Hagueappeared keen to emphasise that theacquittal of two of the accused did notmean that crimes had not taken place.They underlined that civilians hadbeen held in horrific conditions at theKLA camp in Lapusnik, with “grossovercrowding” and some chained tothe wall; KLA soldiers, often wearinghoods to hide their faces, beat inmatesinto unconsciousness; detainees,including some who had been shot,were denied medical treatment despitethe existence of a clinic in the villagewhere KLA personnel were treated.Apart from three prisoners who weremurdered at the camp itself, Bala wasalso found to have taken part in themassacre of nine prisoners in nearbymountains.But the judges said they were notsatisfied that Limaj and Musliu heldpositions in the KLA which wouldhave made them responsible for thecamp.While there was a “strongpossibility” that Limaj had beenpersonally present at the facility, theysaid, there was not enough evidenceto convict of personal involvementcrimes there. As for Musliu, thejudges ruled that there was in fact“little evidence to identify... [him] ashaving any kind of involvement inthe prison camp”.Meanwhile, reactions in Belgrade tothe verdict have been unsurprisinglygloomy. Rasim Ljajic, president ofSerbia’s National Council forCooperation with the Hague tribunal,told the Beta news agency that theresult would bolster the positions ofthose who are hostile to the UnitedNations court.Example 5: Court-related analysis not constructed around a particular courtroom eventDefence Teams Demand EqualityLawyers for defendants at the Hagueand Arusha tribunals claim they arenot accorded the same resources andstatus as prosecutors.By Helen Warrell in The Hague(IWPR, 23-Dec-05)“Lack of resources undermines theaccused’s rights to a fair trial,” arguedColleen Rohan, defence counsel forone of the Bosnian Serb officersaccused of organising the 1995Srebrenica massacre, in court lastmonth.Her colleague Natacha FauveauIvanovic was even more vehement.“The accused did not ask to be indicted,and if the international communitydecides to try them then it must alsomeet the obligations in the statutewhich say the accused should have themeans for their defence,” she said.Lawyers representing six of thedefendants were claiming that unlessthe registry granted them more money,they could not afford to prepare fortheir case.The Hague tribunal’s own rules statethat an accused must be tried “in fullequality” – with the necessary facilitiesand legal aid – to ensure that there is“equality of arms” betweenprosecution and defence.But the Dutch court, and its sistercourt dealing with the Rwandagenocide, set up by the UnitedNations Security Council in 1993 and1994 respectively, have long facedclaims that the position of the defenceis far from being “equal” to that of theprosecution.The problems surrounding thetribunals have led the next generationof international courts to take aradically different view of whatconstitutes “equality” for the defence.John Jones, who is representing NaserOric at the Hague tribunal, saysmoney – which the registry dispensesto the defence – is one of the keyissues.Defence teams at the Hague courtmaintain that prosecution lawyerreceive substantially more fundingthan them.“The prosecution submits its ownbudgets, they can quite boldly ask forwhat they want,” Jones told IWPR.“The defence needs to be in the sameposition.”However, registry officials in TheHague and Arusha argue that theyhave limited resources, and mustguard against corruption by defencecounsels.Following investigations in 2001 and2002, both tribunals tried toimplement measures to preventalleged fee-splitting where a lawyeragrees to share a part of his fee withhis client, in order to get the job.As the Hague tribunal’s spokesperson,Jim Landale, told IWPR, “[Thetribunal] has a responsibility in allareas of its work to demonstrate thatthe public funds given to it are spentresponsibly and effectively.”Gregor Guy-Smith, the president ofthe Hague tribunal’s Association forDefence Counsels, ADC, insists thatthe problems faced by defence lawyersare more fundamental. “There is asystemic problem because the defenceis not part of the tribunal,” he toldIWPR.It was not until September 2002,almost eight years after the Haguetribunal issued its first indictment, thatthe ADC was created to provide a“voice” for the defence.Landale maintains that “the tribunaland especially the registry stronglyadvocated and worked towards theestablishment of a bar association fordefence counsel”.Yet the defence counsels have no voiceat the United Nations in New York.Hague judges decided in July this yearthat the ADC would not be permittedto submit a separate defence updatefor inclusion in the tribunal’s annualreport.However, it is during the courtproceedings that the issue of equalitybetween defence and prosecutionreally stands out.In July this year, at the Oric trial, the“equality of arms” issue came underthe spotlight. The chamber had ruledthat the defence could only call 3050 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGwitnesses, rather than the 73 they hadoriginally requested.Oric’s defence co-counsel, John Jones,argued that this would be a “mockeryof justice”, and that the defence’s 73witnesses would take less court timethan the prosecution had taken overthe presentation of their case.However, Judge Carmel Agius statedfirmly that “equality of arms” was notbased on any empirical comparisonsbetween the two parties.“[It] cannot be measured by the samenumber of witnesses…or by the sametime or the same number of hours,” hesaid. “It is not qualified by numbers,Mr Jones, nowhere in the world.”The alleged discrepancies between theprosecution and defence come intosharp relief when it comes toobtaining evidence from partiesoutside the court – such as in Octoberthis year, when Dragoljub Ojdanic’sdefence lawyers made renewedattempts to get hold of intercepts andsecurity information from NATO,Canada, the United States and theUnited Kingdom.Peter Robinson, co-counsel forOjdanic, told IWPR that the apparentreluctance to disclose was “definitely”to do with the fact that the interceptswere being requested by defencelawyers.“These governments and countriesregularly give intercepted informationto the prosecution,” he said.“The defence are individuals withvery little moral or political clout topersuade countries or governments. Itis not a level playing field from theoutset.”Within the Hague court, observersargue that it is up to judges to levelthat playing field.In the Oric case, the appeals chamberoverturned Agius’ ruling, claimingthat it would be “only fair” to allowthe defence more time and witnesses.And in November this year, theOjdanic judges decided that themajority of the defence’s submissionswere valid. The chamber issued anorder against the reluctant NATO statesthat the sources should be supplied.By contrast with both the Hague andArusha tribunals, the UN-backedSpecial Court for Sierra Leone,established nearly ten years later in2002, has a defence office with anofficial figurehead, known as thePrincipal Defender, whose job is to“ensure the rights of the accusedpersons who appear before the court”and who “acts as a voice for the defenceboth inside and outside the court”.The current Principal Defender,Vincent Nmehielle, told IWPR that oneof the “primary reasons” for thecreation of a defence office was theapparent failure by the Hague andRwanda tribunals to protect defenceinterests.Nmehielle’s predecessor, SimoneMonasebian, who previously workedfor the prosecution in Arusha, agrees.She cites a memo sent by the specialcourt’s president, Geoffrey Robinson,which explicitly stated that thePrincipal Defender’s post would“remedy the perceived shortcomings”of the other tribunals in respect ofdefence facilities.Part of the remedy has been the waythe newer court promotes the messagethat the defence plays an importantrole in establishing the guilt orinnocence of an individual.In the Balkans, says Human RightsWatch researcher Bogdan Ivanisovic,prejudices are deep-seated, addingthat in Belgrade the publicautomatically assume that Bosniaksand Croats accused of crimes againstethnic Serbs are guilty.“This conviction is most often notbased on detailed knowledge of thecharges; of the exact role of theaccused in the relevant events; nor onfollowing of the trial in The Hague,”he told IWPR.The Hague tribunal has an outreachprogramme which regularly organisesevents in the Dutch city and theBalkan region. Outreach co-ordinator,Liam McDowall, told IWPR that hehad frequently invited the ADC toprovide speakers for outreachactivities, but with little success.“[The ADC] rarely engage in theseoffers,” he said.Joeri Maas, senior ADCrepresentatives, denied this, however,claiming that in the past two years“only once” had the ADC received aninvitation from the outreachdepartment to participate in theirevents.In some cases, the lack ofunderstanding about the role thedefence plays can lead to problemswith persuading witnesses to testify.Aminatta N’Gum, a senior official atthe Rwanda tribunal, says they haveexperienced such problems in Arusha.“We have had a couple of defenceteams who’ve been to Rwanda to getwitnesses who’ve come back withnothing,” she said.In Kigali, the Rwandan capital, there iswidespread mistrust of the motives ofdefence lawyers, and a sense ofgrievance that so much money goes todefend “genocidaires”.Aloys Mutabingwa, specialrepresentative of the Rwandangovernment to the Arusha tribunal,told IWPR that although thegovernment realised that defence was“part-and- parcel of the justiceprocess” they were concerned aboutthe “extravagance” of defencespending.“If just a small portion of that moneywere to be used to help people dyingof AIDS and living in abject poverty asa result of the [Rwandan] massacre,that would be better,” he said.At the Special Court of Sierra Leone,Nmehielle organises monthly publicityevents, and is given the opportunity todiscuss defence issues with civilsociety organisations,parliamentarians, military personneland the police.“I explain why there should be adefence, I tell the story of the defenceirrespective of national orinternational opinion,” he told IWPR.However, even Nmehielleacknowledges that “[the public] seethese accused people as animal,hooligans, and criminals – evenhuman rights organisations see themin this way”.REPORTING JUSTICE ■ 51


Appendix 2: International Humanitarian Law Documents1. Hague Conventions page 522. Geneva Conventions page 533. Genocide Convention page 594. Rome Statute of the International Criminal Court page 601. Hague ConventionsThere are many Hague conventions,relating in large part to the use ofweapons such as explosive mines atsea, chemical and bacteriologicalweapons, and dumdum bullets.The document that is probably mostrelevant to most war crimes trials isthe fourth convention (of 1907) dealingwith the laws and customs of war.Some of its main points are set outbelow:Convention (IV) Respecting theLaws and Customs of War on Land.Signed in The Hague, October 18,1907.Belligerents (nowadaystermed “combatants”)Article 1. The laws, rights, and dutiesof war apply not only to armies, butalso to militia and volunteer corpsfulfilling the following conditions:1. To be commanded by a personresponsible for his subordinates;2. To have a fixed distinctive emblemrecognizable at a distance;3. To carry arms openly; and4. To conduct their operations inaccordance with the laws and customsof war.In countries where militia or volunteercorps constitute the army, or form partof it, they are included under thedenomination “army.”Article 2. The inhabitants of a territorywhich has not been occupied, who, onthe approach of the enemy,spontaneously take up arms to resistthe invading troops without havinghad time to organize themselves inaccordance with Article 1, shall beregarded as belligerents if they carryarms openly and if they respect thelaws and customs of war.Article 3. The armed forces of thebelligerent parties may consist ofcombatants and non-combatants. Inthe case of capture by the enemy, bothhave a right to be treated as prisonersof war.Prisoners of WarArticle 4. Prisoners of war are in thepower of the hostile Government, butnot of the individuals or corps whocapture them.They must be humanely treated. Alltheir personal belongings, exceptarms, horses, and military papers,remain their property.Article 5. Prisoners of war may beinterned in a town, fortress, camp, orother place, and bound not to gobeyond certain fixed limits, but theycannot be confined except as inindispensable measure of safety andonly while the circumstances whichnecessitate the measure continue toexist.Article 6. The State may utilize thelabour of prisoners of war accordingto their rank and aptitude, officersexcepted. The tasks shall not beexcessive and shall have no connectionwith the operations of the war. […]Article 8. Prisoners of war shall besubject to the laws, regulations, andorders in force in the army of the Statein whose power they are. Any act ofinsubordination justifies the adoptiontowards them of such measures ofseverity as may be considerednecessary.Escaped prisoners who are retakenbefore being able to rejoin their ownarmy or before leaving the territoryoccupied by the army which capturedthem are liable to disciplinarypunishment. Prisoners who, aftersucceeding in escaping, are againtaken prisoners, are not liable to anypunishment on account of theprevious flight.Article 9. Every prisoner of war isbound to give, if he is questioned onthe subject, his true name and rank,and if he infringes this rule, he is liableto have the advantages given toprisoners of his class curtailed. […]Article 13. Individuals who follow anarmy without directly belonging to it,such as newspaper correspondentsand reporters, sutlers andcontractors, who fall into the enemy’shands and whom the latter thinksexpedient to detain, are entitled to betreated as prisoners of war, providedthey are in possession of a certificatefrom the military authorities of thearmy which they wereaccompanying. [….]Article 18. Prisoners of war shall enjoycomplete liberty in the exercise of theirreligion, including attendance at theservices of whatever church they maybelong to, on the sole condition thatthey comply with the measures oforder and police issued by the militaryauthorities. [….]Article 20. After the conclusion ofpeace, the repatriation of prisoners ofwar shall be carried out as quickly aspossible.Waging warArticle 22. The right of belligerents toadopt means of injuring the enemy isnot unlimited.Article 23. In addition to theprohibitions provided by specialConventions, it is especially forbidden –(a) To employ poison or poisonedweapons;(b) to kill or wound treacherouslyindividuals belonging to the hostilenation or army;(c) To kill or wound an enemy who,having laid down his arms, or havingno longer means of defence, hassurrendered at discretion; (d) Todeclare that no quarter will be given;(e) To employ arms, projectiles, ormaterial calculated to causeunnecessary suffering;(f) To make improper use of a flag oftruce, of the national flag or of themilitary insignia and uniform of theenemy, as well as the distinctivebadges of the Geneva Convention;(g) To destroy or seize the enemy’sproperty, unless such destruction orseizure be imperatively demanded bythe necessities of war; (h) To declareabolished, suspended, or inadmissiblein a court of law the rights and actionsof the nationals of the hostile party. Abelligerent is likewise forbidden tocompel the nationals of the hostileparty to take part in the operations ofwar directed against their owncountry, even if they were in thebelligerent’s service before thecommencement of the war.Article 24. Ruses of war and theemployment of measures necessary forobtaining information about theenemy and the country are consideredpermissible.Article 25. The attack orbombardment, by whatever means, oftowns, villages, dwellings, orbuildings which are undefended isprohibited.Article 26. The officer in command ofan attacking force must, beforecommencing a bombardment, exceptin cases of assault, do all in his powerto warn the authorities.52 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGArticle 27. In sieges andbombardments all necessary stepsmust be taken to spare, as far aspossible, buildings dedicated toreligion, art, science, or charitablepurposes, historic monuments,hospitals, and places where the sickand wounded are collected, providedthey are not being used at the time formilitary purposes.It is the duty of the besieged toindicate the presence of such buildingsor places by distinctive and visiblesigns, which shall be notified to theenemy beforehand.Article 28. The pillage of a town orplace, even when taken by assault, isprohibited.Article 56. The property ofmunicipalities, that of institutionsdedicated to religion, charity andeducation, the arts and sciences, evenwhen State property, shall be treatedas private property.All seizure of, destruction or wilfuldamage done to institutions of thischaracter, historic monuments, worksof art and science, is forbidden, andshould be made the subject of legalproceedings.2. Geneva Conventions■■■■■■Convention (I) for theAmelioration of the Condition ofthe Wounded and Sick in ArmedForces in the Field. Geneva, 12August 1949.Convention (II) for theAmelioration of the Condition ofWounded, Sick and ShipwreckedMembers of Armed Forces at Sea.Geneva, 12 August 1949.Convention (III) relative to theTreatment of Prisoners of War.Geneva, 12 August 1949.Convention (IV) relative to theProtection of Civilian Persons inTime of War. Geneva, 12 August1949.Protocol Additional to theGeneva Conventions of 12August 1949, and relating to theProtection of Victims ofInternational Armed Conflicts(Protocol I), 8 June 1977.Protocol Additional to theGeneva Conventions of 12August 1949, and relating to theProtection of Victims of Non-International Armed Conflicts(Protocol II), 8 June 1977.The Four GenevaConventionsCommon Article 3, included in allfour Geneva Conventions, extendingcoverage of the protections afforded ininternational conflicts to noninternationalarmed conflicts.Article 3. In the case of armed conflictnot of an international characteroccurring in the territory of one of theHigh Contracting Parties, each Party tothe conflict shall be bound to apply, asa minimum, the following provisions:(1) Persons taking no active part in thehostilities, including members ofarmed forces who have laid downtheir arms and those placed hors decombat by sickness, wounds,detention, or any other cause, shall inall circumstances be treated humanely,without any adverse distinctionfounded on race, colour, religion orfaith, sex, birth or wealth, or any othersimilar criteria.To this end, the following acts are andshall remain prohibited at any timeand in any place whatsoever withrespect to the above-mentionedpersons:(a) violence to life and person, inparticular murder of all kinds,mutilation, cruel treatment andtorture;(b) taking of hostages;(c) outrages upon personal dignity, inparticular humiliating and degradingtreatment;(d) the passing of sentences and thecarrying out of executions withoutprevious judgement pronounced by aregularly constituted court, affordingall the judicial guarantees which arerecognized as indispensable bycivilized peoples.(2) The wounded and sick shall becollected and cared for.An impartial humanitarian body, suchas the International Committee of theRed Cross, may offer its services to theParties to the conflict.The Parties to the conflict shouldfurther endeavour to bring into force,by means of special agreements, all orpart of the other provisions of thepresent Convention.The application of the precedingprovisions shall not affect the legalstatus of the Parties to the conflict.Grave breachesConvention III defines grave breachesin the following manner:Art 129. …Each High ContractingParty shall take measures necessaryfor the suppression of all acts contraryto the provisions of the presentConvention other than the gravebreaches defined in the followingArticle.In all circumstances, the accusedpersons shall benefit by safeguards ofproper trial and defence, which shallnot be less favourable than thoseprovided by Article 105 and thosefollowing of the present Convention.Art 130. Grave breaches to which thepreceding Article relates shall be thoseinvolving any of the following acts, ifcommitted against persons or propertyprotected by the Convention: wilfulkilling, torture or inhuman treatment,including biological experiments,wilfully causing great suffering orserious injury to body or health,compelling a prisoner of war to servein the forces of the hostile Power, orwilfully depriving a prisoner of war ofthe rights of fair and regular trialprescribed in this Convention.Conventions I and II add:… and extensive destruction andappropriation of property, not justifiedby military necessity and carried outunlawfully and wantonly.Convention IV adds to the above:….unlawful deportation or transfer orunlawful confinement of a protectedperson, compelling a protected personto serve in the forces of a hostilePower, or wilfully depriving aprotected person of the rights of fairand regular trial prescribed in thepresent Convention, taking of hostagesand extensive destruction.Protection of the sick andwounded (Convention I)Article 12. Members of the armedforces and other persons mentioned inthe following Article, who arewounded or sick, shall be respectedand protected in all circumstances.They shall be treated humanely andcared for by the Party to the conflict inwhose power they may be, withoutany adverse distinction founded onsex, race, nationality, religion, politicalopinions, or any other similar criteria.Any attempts upon their lives, orviolence to their persons, shall bestrictly prohibited; in particular, theyshall not be murdered orexterminated, subjected to torture orto biological experiments; they shallnot wilfully be left without medicalassistance and care, nor shallconditions exposing them to contagionor infection be created.Only urgent medical reasons willauthorize priority in the order oftreatment to be administered.Women shall be treated with allconsideration due to their sex. TheParty to the conflict which isREPORTING JUSTICE ■ 53


APPENDIX 2 ■INTERNATIONAL HUMANITARIAN LAW DOCUMENTScompelled to abandon wounded orsick to the enemy shall, as far asmilitary considerations permit, leavewith them a part of its medicalpersonnel and material to assist intheir care.Article 14. Subject to the provisions ofArticle 12, the wounded and sick of abelligerent who fall into enemy handsshall be prisoners of war, and theprovisions of international lawconcerning prisoners of war shallapply to them.Protection of armed forces atseaArt 12. Members of the armed forcesand other persons mentioned in thefollowing Article, who are at sea andwho are wounded, sick orshipwrecked, shall be respected andprotected in all circumstances, it beingunderstood that the term “shipwreck”means shipwreck from any cause andincludes forced landings at sea by orfrom aircraft.Definition of prisoners of war(Convention III)Art 4. A. Prisoners of war, in the senseof the present Convention, are personsbelonging to one of the followingcategories, who have fallen into thepower of the enemy:(1) Members of the armed forces of aParty to the conflict, as well asmembers of militias or volunteer corpsforming part of such armed forces.(2) Members of other militias andmembers of other volunteer corps,including those of organized resistancemovements, belonging to a Party tothe conflict and operating in or outsidetheir own territory, even if thisterritory is occupied, provided thatsuch militias or volunteer corps,including such organized resistancemovements, fulfil the followingconditions:[(a) that of being commanded by aperson responsible for hissubordinates;(b) that of having a fixed distinctivesign recognizable at a distance;(c) that of carrying arms openly;(d) that of conducting their operationsin accordance with the laws andcustoms of war.(3) Members of regular armed forceswho profess allegiance to agovernment or an authority notrecognized by the Detaining Power.(4) Persons who accompany thearmed forces without actually beingmembers thereof, such as civilianmembers of military aircraft crews,war correspondents, supplycontractors, members of labour unitsor of services responsible for thewelfare of the armed forces, providedthat they have receivedauthorization, from the armed forceswhich they accompany, who shall54 ■ REPORTING JUSTICEprovide them for that purpose withan identity card similar to theannexed model.(5) Members of crews, includingmasters, pilots and apprentices, of themerchant marine and the crews of civilaircraft of the Parties to the conflict,who do not benefit by morefavourable treatment under any otherprovisions of international law.(6) Inhabitants of a non-occupiedterritory, who on the approach of theenemy spontaneously take up arms toresist the invading forces, withouthaving had time to form themselvesinto regular armed units, providedthey carry arms openly and respect thelaws and customs of war.Treatment of prisoners of war(Convention III)Art 12. Prisoners of war are in thehands of the enemy Power, but not ofthe individuals or military units whohave captured them. Irrespective ofthe individual responsibilities thatmay exist, the Detaining Power isresponsible for the treatment giventhem….ith.Art 13. Prisoners of war must at alltimes be humanely treated. Anyunlawful act or omission by theDetaining Power causing death orseriously endangering the health of aprisoner of war in its custody isprohibited, and will be regarded as aserious breach of the presentConvention. In particular, no prisonerof war may be subjected to physicalmutilation or to medical or scientificexperiments of any kind which are notjustified by the medical, dental orhospital treatment of the prisonerconcerned and carried out in hisinterest.Likewise, prisoners of war must at alltimes be protected, particularly againstacts of violence or intimidation andagainst insults and public curiosity.Measures of reprisal against prisonersof war are prohibited.Art 14. Prisoners of war are entitled inall circumstances to respect for theirpersons and their honour.Women shall be treated with all theregard due to their sex and shall in allcases benefit by treatment asfavourable as that granted to men….Art 16. Taking into consideration theprovisions of the present Conventionrelating to rank and sex, and subjectto any privileged treatment whichmay be accorded to them by reasonof their state of health, age orprofessional qualifications, allprisoners of war shall be treated alikeby the Detaining Power, without anyadverse distinction based on race,nationality, religious belief orpolitical opinions, or any otherdistinction founded on similarcriteria.Protection of civilians(Convention IV)Article 27. Protected persons areentitled, in all circumstances, torespect for their persons, their honour,their family rights, their religiousconvictions and practices, and theirmanners and customs. They shall at alltimes be humanely treated, and shallbe protected especially against all actsof violence or threats thereof andagainst insults and public curiosity.Women shall be especially protectedagainst any attack on their honour, inparticular against rape, enforcedprostitution, or any form of indecentassault.Without prejudice to the provisionsrelating to their state of health, ageand sex, all protected persons shall betreated with the same consideration bythe Party to the conflict in whosepower they are, without any adversedistinction based, in particular, onrace, religion or political opinion.However, the Parties to the conflictmay take such measures of control andsecurity in regard to protected personsas may be necessary as a result of thewar.Article 28. The presence of a protectedperson may not be used to rendercertain points or areas immune frommilitary operations.Article 29. The Party to the conflict inwhose hands protected persons maybe, is responsible for the treatmentaccorded to them by its agents,irrespective of any individualresponsibility which may be incurred.Article 31. No physical or moralcoercion shall be exercised againstprotected persons, in particular toobtain information from them or fromthird parties.Article 32. The High ContractingParties specifically agree that each ofthem is prohibited from taking anymeasure of such a character as tocause the physical suffering orextermination of protected persons intheir hands. This prohibition appliesnot only to murder, torture, corporalpunishments, mutilation and medicalor scientific experiments notnecessitated by the medical treatmentof a protected person, but also to anyother measures of brutality whetherapplied by civilian or military agents.Article 33. No protected person maybe punished for an offence he or shehas not personally committed.Collective penalties and likewise allmeasures of intimidation or ofterrorism are prohibited.Pillage is prohibited.Reprisals against protected personsand their property are prohibited.Article 34. The taking of hostages isprohibited.


THE INSTITUTE FOR WAR AND PEACE REPORTINGArticle 49. Individual or mass forcibletransfers, as well as deportations ofprotected persons from occupiedterritory to the territory of theOccupying Power or to that of anyother country, occupied or not, areprohibited, regardless of their motive.Nevertheless, the Occupying Powermay undertake total or partialevacuation of a given area if thesecurity of the population orimperative military reasons sodemand. Such evacuations may notinvolve the displacement of protectedpersons outside the bounds of theoccupied territory except when formaterial reasons it is impossible toavoid such displacement. Personsthus evacuated shall be transferredback to their homes as soon ashostilities in the area in question haveceased.Article 68. [....] The death penalty maynot be pronounced against a protectedperson unless the attention of thecourt has been particularly called tothe fact that since the accused is not anational of the Occupying Power, he isnot bound to it by any duty ofallegiance.In any case, the death penalty may notbe pronounced on a protected personwho was under eighteen years of ageat the time of the offence.Article 71. No sentence shall bepronounced by the competent courtsof the Occupying Power except after aregular trial.THE TWO ADDITIONALPROTOCOLSProtocol I: Protection ofVictims of InternationalArmed ConflictsFundamental guaranteesArticle 75…. The following acts areand shall remain prohibited at anytime and in any place whatsoever,whether committed by civilian or bymilitary agents:(a) violence to the life, health, orphysical or mental well-being ofpersons, in particular:(i) murder;(ii) torture of all kinds, whetherphysical or mental;(iii) corporal punishment; and(iv) mutilation;(b) outrages upon personal dignity, inparticular humiliating and degradingtreatment, enforced prostitution andany form of indecent assault;(c) the taking of hostages;(d) collective punishments; and(e) threats to commit any of theforegoing acts.Grave breaches of Protocol 1Article 85 …. the following acts shallbe regarded as grave breaches of thisProtocol, when committed wilfully, inviolation of the relevant provisions ofthis Protocol, and causing death orserious injury to body or health:(a) making the civilian population orindividual civilians the object ofattack;(b) launching an indiscriminate attackaffecting the civilian population orcivilian objects in the knowledge thatsuch attack will cause excessive loss oflife, injury to civilians or damage tocivilian objects, as defined in Article57, paragraph 2 (a)(iii);(c) launching an attack against worksor installations containing dangerousforces in the knowledge that suchattack will cause excessive loss of life,injury to civilians or damage tocivilian objects, as defined in Article57, paragraph 2 (a)(iii);(d) making non-defended localitiesand demilitarized zones the object ofattack;(e) making a person the object ofattack in the knowledge that he is horsde combat;(f) the perfidious use, in violation ofArticle 37, of the distinctive emblem ofthe red cross, red crescent or red lionand sun or of other protective signsrecognized by the Conventions or thisProtocol.4. In addition to the grave breachesdefined in the preceding paragraphsand in the Conventions, the followingshall be regarded as grave breaches ofthis Protocol, when committedwilfully and in violation of theConventions or the Protocol:(a) the transfer by the occupyingPower of parts of its own civilianpopulation into the territory itoccupies, or the deportation ortransfer of all or parts of thepopulation of the occupied territorywithin or outside this territory, inviolation of Article 49 of the FourthConvention;(b) unjustifiable delay in therepatriation of prisoners of war orcivilians;(c) practices of apartheid and otherinhuman and degrading practicesinvolving outrages upon personaldignity, based on racial discrimination;(d) making the clearly-recognizedhistoric monuments, works of art orplaces of worship which constitute thecultural or spiritual heritage ofpeoples and to which specialprotection has been given by specialarrangement, for example, within theframework of a competentinternational organization, the objectof attack, causing as a result extensivedestruction thereof, where there is noevidence of the violation by theadverse Party of Article 53,subparagraph (b), and when suchhistoric monuments, works of art andplaces of worship are not located inthe immediate proximity of militaryobjectives;(e) depriving a person protected bythe Conventions or referred to inparagraph 2 of this Article of therights of fair and regular trial.5. Without prejudice to the applicationof the Conventions and of thisProtocol, grave breaches of theseinstruments shall be regarded as warcrimes.Enemies no longer able tofightArt 41. Safeguard of an enemy hors decombat1. A person who is recognized or who,in the circumstances, should berecognized to be hors de combat shallnot be made the object of attack.2. A person is hors de combat if:(a) he is in the power of an adverseParty;(b) he clearly expresses an intention tosurrender; or(c) he has been rendered unconsciousor is otherwise incapacitated bywounds or sickness, and therefore isincapable of defending himself;provided that in any of these cases heabstains from any hostile act and doesnot attempt to escape.3. When persons entitled to protectionas prisoners of war have fallen into thepower of an adverse Party underunusual conditions of combat whichprevent their evacuation as providedfor in Part III, Section I, of the ThirdConvention, they shall be released andall feasible precautions shall be takento ensure their safety.Article 42 – Occupants of aircraft1. No person parachuting from anaircraft in distress shall be made theobject of attack during his descent.2. Upon reaching the ground interritory controlled by an adverseParty, a person who has parachutedfrom an aircraft in distress shall begiven an opportunity to surrenderbefore being made the object of attack,unless it is apparent that he isengaging in a hostile act.Further definition of combatants andprisoners of warArticle 43. Armed forcesThe armed forces of a Party to aconflict consist of all organized armedforces, groups and units which areunder a command responsible to thatParty for the conduct or itssubordinates, even if that Party isrepresented by a government or anauthority not recognized by anadverse Party. Such armed forcesshall be subject to an internaldisciplinary system which, inter alia,shall enforce compliance with therules of international law applicablein armed conflict.REPORTING JUSTICE ■ 55


APPENDIX 2 ■INTERNATIONAL HUMANITARIAN LAW DOCUMENTSMembers of the armed forces of a Partyto a conflict (other than medicalpersonnel and chaplains covered byArticle 33 of the Third Convention) arecombatants, that is to say, they have theright to participate directly in hostilities.Whenever a Party to a conflictincorporates a paramilitary or armedlaw enforcement agency into its armedforces it shall so notify the otherParties to the conflict.Article 44. Any combatant, as definedin Article 43, who falls into the powerof an adverse Party shall be a prisonerof war.Protection of civiliansArticle 51.The civilian population and individualcivilians shall enjoy general protectionagainst dangers arising from militaryoperations….2. The civilian population as such, aswell as individual civilians, shall notbe the object of attack. Acts or threatsof violence the primary purpose ofwhich is to spread terror among thecivilian population are prohibited.3. Civilians shall enjoy the protectionafforded by this section, unless and forsuch time as they take a direct part inhostilities.4. Indiscriminate attacks areprohibited. Indiscriminate attacks are:(a) those which are not directed at aspecific military objective;(b) those which employ a method ormeans of combat which cannot bedirected at a specific military objective;or(c) those which employ a method ormeans of combat the effects of whichcannot be limited as required by thisProtocol;and consequently, in each such case,are of a nature to strike militaryobjectives and civilians or civilianobjects without distinction.5. Among others, the following typesof attacks are to be considered asindiscriminate:(a) an attack by bombardment by anymethods or means which treats as asingle military objective a number ofclearly separated and distinct militaryobjectives located in a city, town,village or other area containing asimilar concentration of civilians orcivilian objects;and(b) an attack which may be expectedto cause incidental loss of civilian life,injury to civilians, damage to civilianobjects, or a combination thereof,which would be excessive in relationto the concrete and direct militaryadvantage anticipated.6. Attacks against the civilianpopulation or civilians by way ofreprisals are prohibited.7. The presence or movements of thecivilian population or individualcivilians shall not be used to rendercertain points or areas immune frommilitary operations, in particular inattempts to shield military objectivesfrom attacks or to shield, favour orimpede military operations. TheParties to the conflict shall not directthe movement of the civilianpopulation or individual civilians inorder to attempt to shield militaryobjectives from attacks or to shieldmilitary operations.8. Any violation of these prohibitionsshall not release the Parties to theconflict from their legal obligationswith respect to the civilian populationand civilians, including the obligationto take the precautionary measuresprovided for in Article 57.Protection of homes, schoolsand places of worshipArticle52.1. Civilian objects shall not be theobject of attack or of reprisals. Civilianobjects are all objects which are notmilitary objectives as defined inparagraph 2.2. Attacks shall be limited strictly tomilitary objectives. In so far as objectsare concerned, military objectives arelimited to those objects which by theirnature, location, purpose or use makean effective contribution to militaryaction and whose total or partialdestruction, capture or neutralization,in the circumstances ruling at the time,offers a definite military advantage.3. In case of doubt whether an objectwhich is normally dedicated to civilianpurposes, such as a place of worship, ahouse or other dwelling or a school, isbeing used to make an effectivecontribution to military action, it shallbe presumed not to be so used.Article 53. Without prejudice to theprovisions of the Hague Conventionfor the Protection of Cultural Propertyin the Event of Armed Conflict of 14May 1954, and of other relevantinternational instruments, it isprohibited:(a) to commit any acts of hostilitydirected against the historicmonuments, works of art or places ofworship which constitute the culturalor spiritual heritage of peoples;(b) to use such objects in support ofthe military effort;(c) to make such objects the object ofreprisals.Depriving civilians of themeans of survivalArticle 54. Protection of objectsindispensable to the survival of thecivilian population1. Starvation of civilians as a methodof warfare is prohibited.2. It is prohibited to attack, destroy,remove or render useless objectsindispensable to the survival of thecivilian population, such as foodstuffs,agricultural areas for theproduction of food-stuffs, crops,livestock, drinking water installationsand supplies and irrigation works, forthe specific purpose of denying themfor their sustenance value to thecivilian population or to the adverseParty, whatever the motive, whether inorder to starve out civilians, to causethem to move away, or for any othermotive.3. The prohibitions in paragraph 2shall not apply to such of the objectscovered by it as are used by anadverse Party:(a) as sustenance solely for themembers of its armed forces; or(b) if not as sustenance, then in directsupport of military action, provided,however, that in no event shall actionsagainst these objects be taken whichmay be expected to leave the civilianpopulation with such inadequate foodor water as to cause its starvation orforce its movement.4. These objects shall not be made theobject of reprisals.5. In recognition of the vitalrequirements of any Party to theconflict in the defence of its nationalterritory against invasion, derogationfrom the prohibitions contained inparagraph 2 may be made by a Partyto the conflict within such territoryunder its own control where requiredby imperative military necessity.Refugees during conflictArticle 73. Refugees and statelesspersonsPersons who, before the beginning ofhostilities, were considered as statelesspersons or refugees under the relevantinternational instruments accepted bythe Parties concerned or under thenational legislation of the State ofrefuge or State of residence shall beprotected persons within the meaningof Parts I and III of the FourthConvention, in all circumstances andwithout any adverse distinction.Women and childrenArticle 76. Protection of women1. Women shall be the object of specialrespect and shall be protected inparticular against rape, forcedprostitution and any other form ofindecent assault.2. Pregnant women and mothershaving dependent infants who arearrested, detained or interned forreasons related to the armed conflict,shall have their cases considered withthe utmost priority.3. To the maximum extent feasible, theParties to the conflict shall endeavourto avoid the pronouncement of thedeath penalty on pregnant women ormothers having dependent infants, foran offence related to the armedconflict. The death penalty for suchoffences shall not be executed on suchwomen.56 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGArticle 77. Protection of children1. Children shall be the object ofspecial respect and shall be protectedagainst any form of indecent assault.The Parties to the conflict shallprovide them with the care and aidthey require, whether because of theirage or for any other reason.2. The Parties to the conflict shall takeall feasible measures in order thatchildren who have not attained theage of fifteen years do not take adirect part in hostilities and, inparticular, they shall refrain fromrecruiting them into their armedforces. In recruiting among thosepersons who have attained the age offifteen years but who have notattained the age of eighteen years theParties to the conflict shall endeavourto give priority to those who areoldest.3. If, in exceptional cases, despite theprovisions of paragraph 2, childrenwho have not attained the age offifteen years take a direct part inhostilities and fall into the power of anadverse Party, they shall continue tobenefit from the special protectionaccorded by this Article, whether ornot they are prisoners of war.4. If arrested, detained or interned forreasons related to the armed conflict,children shall be held in quartersseparate from the quarters of adults,except where families areaccommodated as family units asprovided in Article 75, paragraph 5.5. The death penalty for an offencerelated to the armed conflict shall notbe executed on persons who had notattained the age of eighteen years atthe time the offence was committed.Accountability of commandersArticle 86. Failure to act1. The High Contracting Parties andthe Parties to the conflict shall repressgrave breaches, and take measuresnecessary to suppress all otherbreaches, of the Conventions or of thisProtocol which result from a failure toact when under a duty to do so.2. The fact that a breach of theConventions or of this Protocol wascommitted by a subordinate does notabsolve his superiors from penal ordisciplinary responsibility, as the casemay be, if they knew, or hadinformation which should haveenabled them to conclude in thecircumstances at the time, that he wascommitting or was going to commitsuch a breach and if they did not takeall feasible measures within theirpower to prevent or repress thebreach.Article 87. Duty of commanders1. The High Contracting Parties andthe Parties to the conflict shall requiremilitary commanders, with respect tomembers of the armed forces undertheir command and other personsunder their control, to prevent and,where necessary, to suppress and toreport to competent authoritiesbreaches of the Conventions and ofthis Protocol.2. In order to prevent and suppressbreaches, High Contracting Partiesand Parties to the conflict shall requirethat, commensurate with their level ofresponsibility, commanders ensurethat members of the armed forcesunder their command are aware oftheir obligations under theConventions and this Protocol.3. The High Contracting Parties andParties to the conflict shall require anycommander who is aware thatsubordinates or other persons underhis control are going to commit orhave committed a breach of theConventions or of this Protocol, toinitiate such steps as are necessary toprevent such violations of theConventions or this Protocol, and,where appropriate, to initiatedisciplinary or penal action againstviolators thereof.Protocol II: Protection ofVictims of Non-InternationalArmed ConflictsApplication[Protocol II] shall apply to all armedconflicts which are not covered byArticle 1 of the Protocol Additional tothe Geneva Conventions of 12 August1949, and relating to the Protection ofVictims of International ArmedConflicts (Protocol I) and which takeplace in the territory of a HighContracting Party between its armedforces and dissident armed forces orother organized armed groups which,under responsible command, exercisesuch control over a part of its territoryas to enable them to carry outsustained and concerted militaryoperations and to implement thisProtocol.2. This Protocol shall not apply tosituations of internal disturbances andtensions, such as riots, isolated andsporadic acts of violence and otheracts of a similar nature, as not beingarmed conflicts.Guarantees of humanetreatmentArticle 4 Fundamental guarantees1. All persons who do not take a directpart or who have ceased to take partin hostilities, whether or not theirliberty has been restricted, are entitledto respect for their person, honour andconvictions and religious practices.They shall in all circumstances betreated humanely, without anyadverse distinction. It is prohibited toorder that there shall be no survivors.2. Without prejudice to the generalityof the foregoing, the following actsagainst the persons referred to inparagraph I are and shall remainprohibited at any time and in anyplace whatsoever:(a) violence to the life, health andphysical or mental well-being ofpersons, in particular murder as wellas cruel treatment such as torture,mutilation or any form of corporalpunishment;(b) collective punishments;(c) taking of hostages;(d) acts of terrorism;(e) outrages upon personal dignity, inparticular humiliating and degradingtreatment, rape, enforced prostitutionand any form or indecent assault;(f) slavery and the slave trade in alltheir forms;(g) pillage;(h) threats to commit any or theforegoing acts.3. Children shall be provided with thecare and aid they require, and inparticular:(a) they shall receive an education,including religious and moraleducation, in keeping with the wishesof their parents, or in the absence ofparents, of those responsible for theircare;(b) all appropriate steps shall be takento facilitate the reunion of familiestemporarily separated;(c) children who have not attained theage of fifteen years shall neither berecruited in the armed forces orgroups nor allowed to take part inhostilities;(d) the special protection provided bythis Article to children who have notattained the age of fifteen years shallremain applicable to them if they takea direct part in hostilities despite theprovisions of subparagraph (c) and arecaptured;(e) measures shall be taken, ifnecessary, and whenever possible withthe consent of their parents or personswho by law or custom are primarilyresponsible for their care, to removechildren temporarily from the area inwhich hostilities are taking place to asafer area within the country andensure that they are accompanied bypersons responsible for their safetyand well-being.Article 5. Persons whose liberty hasbeen restricted1. In addition to the provisions ofArticle 4 the following provisions shallbe respected as a minimum withregard to persons deprived of theirliberty for reasons related to the armedconflict, whether they are interned ordetained;(a) the wounded and the sick shall betreated in accordance with Article 7;(b) the persons referred to in thisparagraph shall, to the same extent asthe local civilian population, beprovided with food and drinkingwater and be afforded safeguards asregards health and hygiene andprotection against the rigours of theclimate and the dangers of the armedconflict;REPORTING JUSTICE ■ 57


APPENDIX 2 ■INTERNATIONAL HUMANITARIAN LAW DOCUMENTS(c) they shall be allowed to receiveindividual or collective relief;(d) they shall be allowed to practisetheir religion and, if requested andappropriate, to receive spiritualassistance from persons, such aschaplains, performing religiousfunctions;(e) they shall, if made to work, havethe benefit of working conditions andsafeguards similar to those enjoyed bythe local civilian population.Prosecutions arising fromconflictArticle 6. Penal prosecutions1. This Article applies to theprosecution and punishment ofcriminal offences related to the armedconflict.2. No sentence shall be passed and nopenalty shall be executed on a personfound guilty of an offence exceptpursuant to a conviction pronounced bya court offering the essential guaranteesof independence and impartiality.In particular:(a) the procedure shall provide for anaccused to be informed without delayof the particulars of the offence allegedagainst him and shall afford theaccused before and during his trial allnecessary rights and means of defence;(b) no one shall be convicted of anoffence except on the basis ofindividual penal responsibility;(c) no one shall be held guilty of anycriminal offence on account of anyact or omission which did notconstitute a criminal offence, underthe law, at the time when it wascommitted; nor shall a heavierpenalty be imposed than that whichwas applicable at the time when thecriminal offence was committed; if,after the commission of the offence,provision is made by law for theimposition of a lighter penalty, theoffender shall benefit thereby;(d) anyone charged with an offence ispresumed innocent until proved guiltyaccording to law;(e) anyone charged with an offenceshall have the right to be tried in hispresence;(f) no one shall be compelled to testifyagainst himself or to confess guilt.3. A convicted person shall be advisedon conviction of his judicial and otherremedies and of the time-limits withinwhich they may be exercised.4. The death penalty shall not bepronounced on persons who wereunder the age of eighteen years at thetime of the offence and shall not becarried out on pregnant women ormothers of young children.5. At the end of hostilities, theauthorities in power shall endeavourto grant the broadest possible amnestyto persons who have participated inthe armed conflict, or those deprivedof their liberty for reasons related tothe armed conflict, whether they areinterned or detained.Wounded and sick personsArticle 71. All the wounded, sick andshipwrecked, whether or not theyhave taken part in the armed conflict,shall be respected and protected.Protections for medicalworkersArticle 9. Protection of medical andreligious personnel1. Medical and religious personnelshall be respected and protected andshall be granted all available help forthe performance of their duties. Theyshall not be compelled to carry outtasks which are not compatible withtheir humanitarian mission.[…]Article 11. Protection of medical unitsand transports1. Medical units and transports shallbe respected and protected at alltimes and shall not be the object ofattack.2. The protection to which medicalunits and transports are entitled shallnot cease unless they are used tocommit hostile acts, outside theirhumanitarian function. Protectionmay, however, cease only after awarning has been given, setting,whenever appropriate, a reasonabletime-limit, and after such warning hasremained unheeded.Article 12. Under the direction of thecompetent authority concerned, thedistinctive emblem of the red cross,red crescent or red lion and sun on awhite ground shall be displayed bymedical and religious personnel andmedical units, and on medicaltransports. It shall be respected in allcircumstances. It shall not be usedimproperly.CiviliansArt 13. Protection of the civilianpopulation1. The civilian population andindividual civilians shall enjoy generalprotection against the dangers arisingfrom military operations. To give effectto this protection, the following rulesshall be observed in all circumstances.2. The civilian population as such, aswell as individual civilians, shall notbe the object of attack. Acts or threatsof violence the primary purpose ofwhich is to spread terror among thecivilian population are prohibited.3. Civilians shall enjoy the protectionafforded by this part, unless and forsuch time as they take a direct part inhostilities.Protection of buildings andother sitesArt 14. Protection of objectsindispensable to the survival of thecivilian populationStarvation of civilians as a method ofcombat is prohibited. It is thereforeprohibited to attack, destroy, removeor render useless for that purpose,objects indispensable to the survivalof the civilian population such asfood-stuffs, agricultural areas for theproduction of food-stuffs, crops,livestock, drinking waterinstallations and supplies andirrigation works.Art 15. Protection of works andinstallations containing dangerousforcesWorks or installations containingdangerous forces, namely dams, dykesand nuclear electrical generatingstations, shall not be made the objectof attack, even where these objects aremilitary objectives, if such attack maycause the release of dangerous forcesand consequent severe losses amongthe civilian population.Article 16. Protection of culturalobjects and of places of worshipWithout prejudice to the provisions ofthe Hague Convention for theProtection of Cultural Property in theEvent of Armed Conflict of 14 May1954, it is prohibited to commit anyacts of hostility directed againsthistoric monuments, works of art orplaces of worship which constitute thecultural or spiritual heritage ofpeoples, and to use them in support ofthe military effort.Forced displacementArticle 171. The displacement of the civilianpopulation shall not be ordered forreasons related to the conflict unlessthe security of the civilians involvedor imperative military reasons sodemand. Should such displacementshave to be carried out, all possiblemeasures shall be taken in order thatthe civilian population may bereceived under satisfactory conditionsof shelter, hygiene, health, safety andnutrition.2. Civilians shall not be compelled toleave their own territory for reasonsconnected with the conflict.58 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTING3. Genocide ConventionConvention on thePrevention and Punishmentof the Crime of GenocideAdopted by Resolution 260 (III) A ofthe U.N. General Assembly on 9December 1948.Entry into force: 12 January 1951.The Contracting Parties,Having considered the declarationmade by the General Assembly of theUnited Nations in its resolution 96 (I)dated 11 December 1946 that genocideis a crime under international law,contrary to the spirit and aims of theUnited Nations and condemned by thecivilized world,Recognizing that at all periods ofhistory genocide has inflicted greatlosses on humanity, andBeing convinced that, in order toliberate mankind from such an odiousscourge, international co-operation isrequired,Hereby agree as hereinafter provided:Article I: The Contracting Partiesconfirm that genocide, whethercommitted in time of peace or in timeof war, is a crime under internationallaw which they undertake to preventand to punish.Article II: In the present Convention,genocide means any of the followingacts committed with intent to destroy,in whole or in part, a national,ethnical, racial or religious group, assuch:(a) Killing members of the group;(b) Causing serious bodily or mentalharm to members of the group;(c) Deliberately inflicting on the groupconditions of life calculated to bringabout its physical destruction in wholeor in part;(d) Imposing measures intended toprevent births within the group;(e) Forcibly transferring children of thegroup to another group.Article III: The following acts shall bepunishable:(a) Genocide;(b) Conspiracy to commit genocide;(c) Direct and public incitement tocommit genocide;(d) Attempt to commit genocide;(e) Complicity in genocide.Article IV: Persons committinggenocide or any of the other actsenumerated in article III shall bepunished, whether they areconstitutionally responsible rulers,public officials or private individuals.Article V: The Contracting Partiesundertake to enact, in accordancewith their respective Constitutions,the necessary legislation to give effectto the provisions of the presentConvention, and, in particular, toprovide effective penalties forpersons guilty of genocide or any ofthe other acts enumerated in articleIII.Article VI: Persons charged withgenocide or any of the other actsenumerated in article III shall be triedby a competent tribunal of the State inthe territory of which the act wascommitted, or by such internationalpenal tribunal as may havejurisdiction with respect to thoseContracting Parties which shall haveaccepted its jurisdiction.Article VII: Genocide and the otheracts enumerated in article III shall notbe considered as political crimes forthe purpose of extradition.The Contracting Parties pledgethemselves in such cases to grantextradition in accordance with theirlaws and treaties in force.Article VIII: Any Contracting Partymay call upon the competent organsof the United Nations to take suchaction under the Charter of theUnited Nations as they considerappropriate for the prevention andsuppression of acts of genocide orany of the other acts enumerated inarticle III.Article IX: Disputes between theContracting Parties relating to theinterpretation, application orfulfilment of the present Convention,including those relating to theresponsibility of a State for genocideor for any of the other actsenumerated in article III, shall besubmitted to the International Court ofJustice at the request of any of theparties to the dispute.Article X: The present Convention, ofwhich the Chinese, English, French,Russian and Spanish texts are equallyauthentic, shall bear the date of 9December 1948.Article XI: The present Conventionshall be open until 31 December 1949for signature on behalf of any Memberof the United Nations and of anynonmember State to which aninvitation to sign has been addressedby the General Assembly.The present Convention shall beratified, and the instruments ofratification shall be deposited with theSecretary-General of the UnitedNations.After 1 January 1950, the presentConvention may be acceded to onbehalf of any Member of the UnitedNations and of any non-member Statewhich has received an invitation asaforesaid. Instruments of accessionshall be deposited with the Secretary-General of the United Nations.Article XII: Any Contracting Partymay at any time, by notificationaddressed to the Secretary-General ofthe United Nations, extend theapplication of the present Conventionto all or any of the territories for theconduct of whose foreign relationsthat Contracting Party is responsible.Article XIII: On the day when the firsttwenty instruments of ratification oraccession have been deposited, theSecretary-General shall draw up aproces-verbal and transmit a copythereof to each Member of the UnitedNations and to each of the nonmemberStates contemplated in articleXI.The present Convention shall comeinto force on the ninetieth dayfollowing the date of deposit of thetwentieth instrument of ratification oraccession.Any ratification or accession effected,subsequent to the latter date shallbecome effective on the ninetieth dayfollowing the deposit of theinstrument of ratification or accession.Article XIV: The present Conventionshall remain in effect for a period often years as from the date of itscoming into force.It shall thereafter remain in force forsuccessive periods of five years forsuch Contracting Parties as have notdenounced it at least six monthsbefore the expiration of the currentperiod.Denunciation shall be effected by awritten notification addressed to theSecretary-General of the UnitedNations.Article XV: If, as a result ofdenunciations, the number of Partiesto the present Convention shouldbecome less than sixteen, theConvention shall cease to be in forceas from the date on which the last ofthese denunciations shall becomeeffective.Article XVI: A request for the revisionof the present Convention may bemade at any time by any ContractingParty by means of a notification inwriting addressed to the Secretary-General.The General Assembly shall decideupon the steps, if any, to be taken inrespect of such request.Article XVII: The Secretary-General ofthe United Nations shall notify allMembers of the United Nations andthe non-member States contemplatedin article XI of the following:(a) Signatures, ratifications andaccessions received in accordance witharticle XI;(b) Notifications received inaccordance with article XII;REPORTING JUSTICE ■ 59


APPENDIX 2 ■INTERNATIONAL HUMANITARIAN LAW DOCUMENTS(c) The date upon which the presentConvention comes into force inaccordance with article XIII;(d) Denunciations received inaccordance with article XIV;(e) The abrogation of the Conventionin accordance with article XV;(f) Notifications received in accordancewith article XVI.Article XVIII: The original of thepresent Convention shall be depositedin the archives of the United Nations.A certified copy of the Conventionshall be transmitted to each Memberof the United Nations and to each ofthe non-member States contemplatedin article XI.Article XIX: The present Conventionshall be registered by the Secretary-General of the United Nations on thedate of its coming into force.4. Rome Statute of the International Criminal CourtROME STATUTE OF THEINTERNATIONAL CRIMINALCOURT[signed July 17, 1998]The ICCAn International Criminal Court (“theCourt”) is hereby established. It shallbe a permanent institution and shallhave the power to exercise itsjurisdiction over persons for the mostserious crimes of internationalconcern, as referred to in this Statute,and shall be complementary tonational criminal jurisdictions. Thejurisdiction and functioning of theCourt shall be governed by theprovisions of this Statute.JurisdictionArticle 5 Crimes within thejurisdiction of the Court1. The jurisdiction of the Court shall belimited to the most serious crimes ofconcern to the internationalcommunity as a whole. The Court hasjurisdiction in accordance with thisStatute with respect to the followingcrimes:(a) The crime of genocide;(b) Crimes against humanity;(c) War crimes;(d) The crime of aggression.2. The Court shall exercise jurisdictionover the crime of aggression once aprovision is adopted in accordancewith articles 121 and 123 defining thecrime and setting out the conditionsunder which the Court shall exercisejurisdiction with respect to this crime.Such a provision shall be consistentwith the relevant provisions of theCharter of the United Nations.Article 6 GenocideFor the purpose of this Statute,“genocide” means any of thefollowing acts committed with intentto destroy, in whole or in part, anational, ethnical, racial or religiousgroup, as such:(a) Killing members of the group;(b) Causing serious bodily or mentalharm to members of the group;(c) Deliberately inflicting on the groupconditions of life calculated to bringabout its physical destruction in wholeor in part;(d) Imposing measures intended toprevent births within the group;(e) Forcibly transferring children of thegroup to another group.Article 7 Crimes against humanity1. For the purpose of this Statute,“crime against humanity” means anyof the following acts when committedas part of a widespread or systematicattack directed against any civilianpopulation, with knowledge of theattack:(a) Murder;(b) Extermination;(c) Enslavement;(d) Deportation or forcible transfer ofpopulation;(e) Imprisonment or other severedeprivation of physical liberty inviolation of fundamental rules ofinternational law;(f) Torture;(g) Rape, sexual slavery, enforcedprostitution, forced pregnancy,enforced sterilization, or any otherform of sexual violence of comparablegravity;(h) Persecution against anyidentifiable group or collectivity onpolitical, racial, national, ethnic,cultural, religious, gender as definedin paragraph 3, or other grounds thatare universally recognized asimpermissible under international law,in connection with any act referred toin this paragraph or any crime withinthe jurisdiction of the Court;(i) Enforced disappearance of persons;(j) The crime of apartheid;(k) Other inhumane acts of a similarcharacter intentionally causing greatsuffering, or serious injury to body orto mental or physical health.2. For the purpose of paragraph 1:(a) “Attack directed against anycivilian population” means a course ofconduct involving the multiplecommission of acts referred to inparagraph 1 against any civilianpopulation, pursuant to or infurtherance of a State or organizationalpolicy to commit such attack;(b) “Extermination” includes theintentional infliction of conditions oflife, inter alia the deprivation of accessto food and medicine, calculated tobring about the destruction of part of apopulation;(c) “Enslavement” means the exerciseof any or all of the powers attaching tothe right of ownership over a personand includes the exercise of such powerin the course of trafficking in persons,in particular women and children;(d) “Deportation or forcible transfer ofpopulation” means forceddisplacement of the persons concernedby expulsion or other coercive actsfrom the area in which they arelawfully present, without groundspermitted under international law;(e) “Torture” means the intentionalinfliction of severe pain or suffering,whether physical or mental, upon aperson in the custody or under thecontrol of the accused; except thattorture shall not include pain orsuffering arising only from, inherent inor incidental to, lawful sanctions;(f) “Forced pregnancy” means theunlawful confinement of a womanforcibly made pregnant, with the intentof affecting the ethnic composition ofany population or carrying out othergrave violations of international law.This definition shall not in any way beinterpreted as affecting national lawsrelating to pregnancy;(g) “Persecution” means theintentional and severe deprivation offundamental rights contrary tointernational law by reason of theidentity of the group or collectivity;(h) “The crime of apartheid” meansinhumane acts of a character similar tothose referred to in paragraph 1,committed in the context of aninstitutionalized regime of systematicoppression and domination by oneracial group over any other racial groupor groups and committed with theintention of maintaining that regime;(i) “Enforced disappearance ofpersons” means the arrest, detentionor abduction of persons by, or with theauthorization, support or acquiescenceof, a State or a political organization,followed by a refusal to acknowledgethat deprivation of freedom or to giveinformation on the fate orwhereabouts of those persons, withthe intention of removing them fromthe protection of the law for aprolonged period of time.3. For the purpose of this Statute, it isunderstood that the term “gender”refers to the two sexes, male andfemale, within the context of society.The term “gender” does not indicateany meaning different from the above.Article 8 War crimes1. The Court shall have jurisdiction inrespect of war crimes in particularwhen committed as part of a plan orpolicy or as part of a large-scalecommission of such crimes.60 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTING2. For the purpose of this Statute, “warcrimes” means:(a) Grave breaches of the GenevaConventions of 12 August 1949,namely, any of the following actsagainst persons or property protectedunder the provisions of the relevantGeneva Convention:(i) Wilful killing;(ii) Torture or inhuman treatment,including biological experiments;(iii) Wilfully causing great suffering, orserious injury to body or health;(iv) Extensive destruction andappropriation of property, not justifiedby military necessity and carried outunlawfully and wantonly;(v) Compelling a prisoner of war orother protected person to serve in theforces of a hostile Power;(vi) Wilfully depriving a prisoner ofwar or other protected person of therights of fair and regular trial;(vii) Unlawful deportation or transferor unlawful confinement;(viii) Taking of hostages.(b) Other serious violations of the lawsand customs applicable ininternational armed conflict, withinthe established framework ofinternational law, namely, any of thefollowing acts:(i) Intentionally directing attacksagainst the civilian population as suchor against individual civilians nottaking direct part in hostilities;(ii) Intentionally directing attacksagainst civilian objects, that is,objects which are not militaryobjectives;(iii) Intentionally directing attacksagainst personnel, installations,material, units or vehicles involved ina humanitarian assistance orpeacekeeping mission in accordancewith the Charter of the UnitedNations, as long as they are entitled tothe protection given to civilians orcivilian objects under the internationallaw of armed conflict;(iv) Intentionally launching an attackin the knowledge that such attack willcause incidental loss of life or injuryto civilians or damage to civilianobjects or widespread, long-term andsevere damage to the naturalenvironment which would be clearlyexcessive in relation to the concreteand direct overall military advantageanticipated;(v) Attacking or bombarding, bywhatever means, towns, villages,dwellings or buildings which areundefended and which are notmilitary objectives;(vi) Killing or wounding a combatantwho, having laid down his arms orhaving no longer means of defence,has surrendered at discretion;(vii) Making improper use of a flag oftruce, of the flag or of the militaryinsignia and uniform of the enemy orof the United Nations, as well as of thedistinctive emblems of the GenevaConventions, resulting in death orserious personal injury;(viii) The transfer, directly orindirectly, by the Occupying Power ofparts of its own civilian populationinto the territory it occupies, or thedeportation or transfer of all or partsof the population of the occupiedterritory within or outside thisterritory;(ix) Intentionally directing attacksagainst buildings dedicated toreligion, education, art, science orcharitable purposes, historicmonuments, hospitals and placeswhere the sick and wounded arecollected, provided they are notmilitary objectives;(x) Subjecting persons who are in thepower of an adverse party to physicalmutilation or to medical or scientificexperiments of any kind which areneither justified by the medical, dentalor hospital treatment of the personconcerned nor carried out in his or herinterest, and which cause death to orseriously endanger the health of suchperson or persons;(xi) Killing or wounding treacherouslyindividuals belonging to the hostilenation or army;(xii) Declaring that no quarter will begiven;(xiii) Destroying or seizing theenemy’s property unless suchdestruction or seizure be imperativelydemanded by the necessities of war;(xiv) Declaring abolished, suspendedor inadmissible in a court of law therights and actions of the nationals ofthe hostile party;(xv) Compelling the nationals of thehostile party to take part in theoperations of war directed againsttheir own country, even if they were inthe belligerent’s service before thecommencement of the war;(xvi) Pillaging a town or place, evenwhen taken by assault;(xvii) Employing poison or poisonedweapons;(xviii) Employing asphyxiating,poisonous or other gases, and allanalogous liquids, materials ordevices;(xix) Employing bullets which expandor flatten easily in the human body,such as bullets with a hard envelopewhich does not entirely cover the coreor is pierced with incisions;(xx) Employing weapons, projectilesand material and methods of warfarewhich are of a nature to causesuperfluous injury or unnecessarysuffering or which are inherentlyindiscriminate in violation of theinternational law of armed conflict,provided that such weapons,projectiles and material and methodsof warfare are the subject of acomprehensive prohibition and areincluded in an annex to this Statute,by an amendment in accordance withthe relevant provisions set forth inarticles 121 and 123;(xxi) Committing outrages uponpersonal dignity, in particularhumiliating and degrading treatment;(xxii) Committing rape, sexual slavery,enforced prostitution, forcedpregnancy, as defined in article 7,paragraph 2 (f), enforced sterilization,or any other form of sexual violencealso constituting a grave breach of theGeneva Conventions;(xxiii) Utilizing the presence of acivilian or other protected person torender certain points, areas or militaryforces immune from militaryoperations;(xxiv) Intentionally directing attacksagainst buildings, material, medicalunits and transport, and personnelusing the distinctive emblems of theGeneva Conventions in conformitywith international law;(xxv) Intentionally using starvation ofcivilians as a method of warfare bydepriving them of objectsindispensable to their survival,including wilfully impeding reliefsupplies as provided for under theGeneva Conventions;(xxvi) Conscripting or enlistingchildren under the age of fifteen yearsinto the national armed forces or usingthem to participate actively inhostilities.(c) In the case of an armed conflict notof an international character, seriousviolations of article 3 common to thefour Geneva Conventions of 12August 1949, namely, any of thefollowing acts committed againstpersons taking no active part in thehostilities, including members ofarmed forces who have laid downtheir arms and those placed hors decombat by sickness, wounds,detention or any other cause:(i) Violence to life and person, inparticular murder of all kinds,mutilation, cruel treatment andtorture;(ii) Committing outrages uponpersonal dignity, in particularhumiliating and degrading treatment;(iii) Taking of hostages;(iv) The passing of sentences and thecarrying out of executions withoutprevious judgement pronounced by aregularly constituted court, affordingall judicial guarantees which aregenerally recognized as indispensable.(d) Paragraph 2 (c) applies to armedconflicts not of an internationalcharacter and thus does not apply tosituations of internal disturbances andtensions, such as riots, isolated andsporadic acts of violence or other actsof a similar nature.(e) Other serious violations of the lawsand customs applicable in armedconflicts not of an internationalcharacter, within the establishedframework of international law,namely, any of the following acts:(i) Intentionally directing attacksagainst the civilian population as suchor against individual civilians nottaking direct part in hostilities;(ii) Intentionally directing attacksagainst buildings, material, medicalREPORTING JUSTICE ■ 61


APPENDIX 2 ■INTERNATIONAL HUMANITARIAN LAW DOCUMENTSunits and transport, and personnelusing the distinctive emblems of theGeneva Conventions in conformitywith international law;(iii) Intentionally directing attacksagainst personnel, installations,material, units or vehicles involved ina humanitarian assistance orpeacekeeping mission in accordancewith the Charter of the UnitedNations, as long as they are entitled tothe protection given to civilians orcivilian objects under the internationallaw of armed conflict;(iv) Intentionally directing attacksagainst buildings dedicated toreligion, education, art, science orcharitable purposes, historicmonuments, hospitals and placeswhere the sick and wounded arecollected, provided they are notmilitary objectives;(v) Pillaging a town or place, evenwhen taken by assault;(vi) Committing rape, sexual slavery,enforced prostitution, forcedpregnancy, as defined in article 7,paragraph 2 (f), enforced sterilization,and any other form of sexual violencealso constituting a serious violation ofarticle 3 common to the four GenevaConventions;(vii) Conscripting or enlisting childrenunder the age of fifteen years intoarmed forces or groups or using themto participate actively in hostilities;(viii) Ordering the displacement of thecivilian population for reasons relatedto the conflict, unless the security ofthe civilians involved or imperativemilitary reasons so demand;(ix) Killing or wounding treacherouslya combatant adversary;(x) Declaring that no quarter will begiven;(xi) Subjecting persons who are in thepower of another party to the conflictto physical mutilation or to medical orscientific experiments of any kindwhich are neither justified by themedical, dental or hospital treatmentof the person concerned nor carriedout in his or her interest, and whichcause death to or seriously endangerthe health of such person or persons;(xii) Destroying or seizing theproperty of an adversary unless suchdestruction or seizure be imperativelydemanded by the necessities of theconflict;(f) Paragraph 2 (e) applies to armedconflicts not of an internationalcharacter and thus does not apply tosituations of internal disturbances andtensions, such as riots, isolated andsporadic acts of violence or other actsof a similar nature. It applies to armedconflicts that take place in the territoryof a State when there is protractedarmed conflict between governmentalauthorities and organized armedgroups or between such groups.3. Nothing in paragraph 2 (c) and (e)shall affect the responsibility of aGovernment to maintain or reestablishlaw and order in the State orto defend the unity and territorialintegrity of the State, by all legitimatemeans.Article 21 Applicable law1. The Court shall apply:(a) In the first place, this Statute,Elements of Crimes and its Rules ofProcedure and Evidence;(b) In the second place, whereappropriate, applicable treaties andthe principles and rules ofinternational law, including theestablished principles of theinternational law of armed conflict;(c) Failing that, general principles oflaw derived by the Court fromnational laws of legal systems of theworld including, as appropriate, thenational laws of States that wouldnormally exercise jurisdiction over thecrime, provided that those principlesare not inconsistent with this Statuteand with international law andinternationally recognized norms andstandards.2. The Court may apply principles andrules of law as interpreted in itsprevious decisions.3. The application and interpretationof law pursuant to this article must beconsistent with internationallyrecognized human rights, and bewithout any adverse distinctionfounded on grounds such as gender asdefined in article 7, paragraph 3, age,race, colour, language, religion orbelief, political or other opinion,national, ethnic or social origin,wealth, birth or other status.Accountability of individualsbefore the ICCArticle 25 Individual criminalresponsibility1. The Court shall have jurisdictionover natural persons pursuant to thisStatute.2. A person who commits a crimewithin the jurisdiction of the Courtshall be individually responsible andliable for punishment in accordancewith this Statute.3. In accordance with this Statute, aperson shall be criminally responsibleand liable for punishment for a crimewithin the jurisdiction of the Court ifthat person:(a) Commits such a crime, whether asan individual, jointly with another orthrough another person, regardless ofwhether that other person iscriminally responsible;(b) Orders, solicits or induces thecommission of such a crime which infact occurs or is attempted;(c) For the purpose of facilitating thecommission of such a crime, aids,abets or otherwise assists in itscommission or its attemptedcommission, including providing themeans for its commission;(d) In any other way contributes to thecommission or attempted commissionof such a crime by a group of personsacting with a common purpose. Suchcontribution shall be intentional andshall either:(i) Be made with the aim of furtheringthe criminal activity or criminalpurpose of the group, where suchactivity or purpose involves thecommission of a crime within thejurisdiction of the Court; or(ii) Be made in the knowledge of theintention of the group to commit thecrime;(e) In respect of the crime of genocide,directly and publicly incites others tocommit genocide;(f) Attempts to commit such a crimeby taking action that commences itsexecution by means of a substantialstep, but the crime does not occurbecause of circumstances independentof the person’s intentions. However, aperson who abandons the effort tocommit the crime or otherwiseprevents the completion of the crimeshall not be liable for punishmentunder this Statute for the attempt tocommit that crime if that personcompletely and voluntarily gave upthe criminal purpose.4. No provision in this Statute relatingto individual criminal responsibilityshall affect the responsibility of Statesunder international law.Article 26 Exclusion of jurisdictionover persons under eighteenThe Court shall have no jurisdictionover any person who was under theage of 18 at the time of the allegedcommission of a crime.Article 27 Irrelevance of officialcapacity1. This Statute shall apply equally toall persons without any distinctionbased on official capacity. In particular,official capacity as a Head of State orGovernment, a member of aGovernment or parliament, an electedrepresentative or a government officialshall in no case exempt a person fromcriminal responsibility under thisStatute, nor shall it, in and of itself,constitute a ground for reduction ofsentence.2. Immunities or special proceduralrules which may attach to the officialcapacity of a person, whether undernational or international law, shall notbar the Court from exercising itsjurisdiction over such a person.Article 28 Responsibility ofcommanders and other superiorsIn addition to other grounds ofcriminal responsibility under thisStatute for crimes within thejurisdiction of the Court:(a) A military commander or personeffectively acting as a militarycommander shall be criminallyresponsible for crimes within the62 ■ REPORTING JUSTICE


THE INSTITUTE FOR WAR AND PEACE REPORTINGjurisdiction of the Court committed byforces under his or her effectivecommand and control, or effectiveauthority and control as the case maybe, as a result of his or her failure toexercise control properly over suchforces, where:(i) That military commander or personeither knew or, owing to thecircumstances at the time, should haveknown that the forces werecommitting or about to commit suchcrimes; and(ii) That military commander orperson failed to take all necessary andreasonable measures within his or herpower to prevent or repress theircommission or to submit the matter tothe competent authorities forinvestigation and prosecution.(b) With respect to superior andsubordinate relationships notdescribed in paragraph (a), a superiorshall be criminally responsible forcrimes within the jurisdiction of theCourt committed by subordinatesunder his or her effective authorityand control, as a result of his or herfailure to exercise control properlyover such subordinates, where:(i) The superior either knew, orconsciously disregarded informationwhich clearly indicated, that thesubordinates were committing orabout to commit such crimes;(ii) The crimes concerned activitiesthat were within the effectiveresponsibility and control of thesuperior; and(iii) The superior failed to take allnecessary and reasonable measureswithin his or her power to prevent orrepress their commission or to submitthe matter to the competent authoritiesfor investigation and prosecution.Article 33 Superior orders andprescription of law1. The fact that a crime within thejurisdiction of the Court has beencommitted by a person pursuant to anorder of a Government or of asuperior, whether military or civilian,shall not relieve that person ofcriminal responsibility unless:(a) The person was under a legalobligation to obey orders of theGovernment or the superior inquestion;(b) The person did not know that theorder was unlawful; and(c) The order was not manifestlyunlawful.2. For the purposes of this article,orders to commit genocide or crimesagainst humanity are manifestlyunlawful.Appendix 3: Information resources and contactsHuman rights and war crimes reporting■■■■Amnesty International, aLondon-based human rightsorganisation. www.amnesty.orgCoalition for an InternationalCourt, an umbrella group of morethan 2,000 non-governmentalorganisations that have longcampaigned for an effective,independent and permanentinternational court.www.iccnow.orgCrimes of War: a collaborativeeffort by journalists, lawyers andscholars to raise public awarenessof the laws of war and theirapplication to situations ofconflict. The book Crimes of War,available on their website,provides a useful A-Z of warcrimes legal issues.http://www.crimesofwar.orgHuman Rights Watch, whichinvestigates human rightsviolations around the world.www.hrw.org■■■■International Center forTransitional Justice, anorganisation that helps countriespursuing accountability for pasthuman rights abuses. www.ictj.orgHuman Rights First, based inNew York City and WashingtonDC, has many experts ininternational humanitarian law.www.humanrightsfirst.orgThe Hirondelle Foundation has anews agency in Arusha, Tanzaniathat has covered the proceedings ofthe International Criminal Tribunalfor Rwanda (ICTR) as well nationaltrials and the Gacaca courts.www.hirondelle.org/arusha.nsfInternews, a non-profitorganisation working to improveaccess to information by fosteringindependent media and promotingopen communications policies. Its“The Justice After Genocide”programme distributes newsreelson the justice process in Rwanda.www.internews.org/regions/africa/justice_rwanda_overview.htmhttp://www.internews.org.rw/■■IWPR Tribunal Update, weeklyreports on the war crimesproceedings at the ICTY,published by the Institute for Warand Peace Reporting.www.iwpr.netThe War Crimes Studies Centerat the University of California,Berkeley, supports a scholarship tofurther the understanding of warcrimes and has a monthlymonitoring report on the SierraLeone Special Court. http://istsocrates.berkeley.edu/~warcrime/Journalism■ Reporting for Change: AHandbook for Local Journalistsin Crisis Areas. IWPR’s trainingmanual, available as a book or aspdf files athttp://www.iwpr.net/index.php?apc_state=henh&s=o&o=special_index1.htmlREPORTING JUSTICE ■ 63


Appendix 4: Answers to Exercise QuestionsChapter 11) Showed the world what had been done and made itimpossible to deny; acknowledged the suffering ofthose who had survived the Holocaust; andstrengthened the rule of law internationally, byacknowledging the existence of crimes againsthumanity.2) Crimes against peace; war crimes; and crimes againsthumanity.3) Made the public aware of what happened in thecourtroom and brought evidence – including footageof the Nazi death camps, testimony of survivors andthousands of documents detailing crimes – into thepublic consciousness.4) The ICTY.Chapter 21. By UN Security Council mandate.2. To hold accountable those responsible for theslaughter of some 800,000 Tutsis and moderate Hutusin 1994.3. Because it was set up with the backing of the UNSecurity Council.4. By international treaty, meaning states had to agree tobe a part of it.5. Because the ICC only has jurisdiction over crimescommitted after July 1, 2002, when it went into force.6. A hybrid court, with both Sierra Leonean andinternational staff, judges, prosecutors and defencelawyers.7. Hybrid courts are generally set up in the countrywhere the crimes took place and thus have moreresonance on the ground. Also, because they employboth local and international prosecutors, judges, courtofficers and defence attorneys, they contributesubstantially towards rebuilding local justice systemsand the rule of law.Chapter 31) Get press credentials through the press office.2) The court may hide the witness from view, distorttheir voice and/or ask all spectators to leave thecourtroom while they give testimony.3) In general, no. Lawyers instruct witnesses not tospeak to journalists.Chapter 61) Impartiality, accuracy and fairness.2) Truth. Journalists can make things worse by allowingemotions to affect the way they report.3) Ensure you have reliable local information; be calmand prepared; never place the story above your ownpersonal safety.64 ■ REPORTING JUSTICE

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