Decision in Mau Mau Case Strengthens the Right to Reparations of All Victims of Torture

10/5/2012

The International Center for Transitional Justice (ICTJ) strongly welcomes the decision of the UK High Court ordering the British government to pay damages to a group of Kenyans who were imprisoned and tortured by colonial authorities following the Mau Mau Rebellion of the 1950s.

“The UK has the opportunity to set right an old injustice, as well as the possibility of strengthening the right to remedy and reparations that continue to be relevant in the present,” said David Tolbert, president of ICTJ. “The British Government should embrace the opportunity to make meaningful reparations not only to the individual claimants but to the hundreds of other surviving victims who are also likely to seek damages before the courts.”

The lawyers representing the UK government accepted that the three plaintiffs were tortured by the colonial authorities. While imprisoned, they suffered what their lawyers described as "unspeakable acts of brutality," including castration, beatings, and severe sexual assaults.

“Any settlement with the victims in this case should focus on the recognition of the individual and collective suffering inflicted upon Mau Mau veterans, including those who have passed away,” said Ruben Carranza, director of ICTJ’s Reparative Justice Program.

Photo: Oxfam Italia

In addition to redressing the suffering endured by Mau Mau veterans, the decision will help address the marginalization and ostracism that they endured. “The UK High Court’s decision is a real opportunity to set an example for other states on how to deal with legacies of massive human rights abuses arising from colonial and occupation-related conflict,” said Carranza.

In a 2010 ICTJ report, “To Live as Other Kenyans Do,” the interviewed veterans of the Mau Mau insurgency felt that their story had “never been told,” and sought to ensure that their experiences were recorded before it was too late for the old people involved.

They pointed out that “not only has the Mau Mau story not been told, but the organization remained formally illegal until 2003. While veterans also seek support to counter the poverty experienced by many Kenyan victims of other periods, seeing their story told in Kenya’s schools is a priority, as is seeing the heroes of that resistance celebrated. The first ’Heroes’ Day’ in 2010 was a start, but it remains insufficient for those who fought.”

Source: http://ictj.org/news/decision-mau-mau-case-strengthens-right-reparations-all-victims-torture

ICTJ to Brief UN Security Council on Accountability for Crimes Against Children

New York, NY- Accountability for violations against children in armed conflict is best achieved through a comprehensive approach to justice that addresses the responsibility of perpetrators and the rights of victims within a broader process of social change. This is the key message to be delivered by the International Center for Transitional Justice (ICTJ) on September 19, 2012, during the UN Security Council’s Open Debate on Children and Armed Conflict.
“Prosecutions are essential for accountability, as they send a clear message that certain violations will not be tolerated by the society or the international community. However, ICTJ’s work over the past decade in over 40 countries has shown that in isolation, prosecutions are not enough,” said David Tolbert, president of ICTJ.

In his address to the Security Council, Tolbert will recommend that the full range of transitional justice measures are prioritized in the set of responses available to the Security Council’s Working Group on Children and Armed Conflict. ICTJ maintains that transitional justice measures can contribute to efforts to reveal the underlying causes of violations against children, remedy the consequences and prevent their recurrence.

“We need to understand what drives state and non-state actors to criminal acts such as forcible recruitment of child soldiers in order to fully address them. Truth-seeking can help to do that,” says Tolbert. “Military, security and other state institutions that engage in such practices must be thoroughly reformed if we are to avoid their recurrence. And the harm done to children must be dealt with through carefully devised reparations programs to allay long-term consequences of the suffering inflicted upon them.”

ICTJ will call upon the Security Council to build on the progress made over the past decade and utilize its leverage to support national processes working to address the full range of violations against children.

Photo: Pierre Holtz | UNICEF CAR

 “The Council should continue to recognize that protection of children and accountability for grave violations against children are part of the Council’s role in upholding peace and security,” said Tolbert. “With this in mind, the Council should urge donors to support national processes that seek to achieve accountability in a comprehensive manner.”

In addition, ICTJ will call for increased focus on accountability within Action Plans the UN has entered with parties to conflict where children were targeted. ICTJ believes that the UN Action Plans to address violations against children are a starting point to achieving accountability for violations against children. “It will also be important to see Actions Plans on the other grave violations against children,” says Tolbert.

ICTJ is the only non-governmental organization invited to address the UN Security Council’s annual open debate on children in armed conflict this year. The debate will be held on September 19, 2012, at 10:00 am United Nations headquarters in New York. The session may be viewed live on the UN’s streaming channel, at webtv.un.org. The full text of ICTJ’s address will be made available immediately after the address at www.ictj.org.

Source: http://ictj.org/news/ictj-brief-un-security-council-accountability-crimes-against-children

Forced Disappearances Are Crimes Against Humanity That Can't Be Justified

9/4/2012

A young man stands by graffiti depicting people disappeared during the 1960-96 civil war, during the celebration of the Army Day, in Guatemala City, on June 30, 2011. AFP PHOTO/Johan ORDONEZ

By Paul Seils, vice president of the International Center for Transitional Justice

On September 12, 1981, in downtown Tegucigalpa, Manfredo Velasquez was abducted in broad daylight by heavily armed men dressed in civilian clothes driving a white Ford without license plates. He was never seen again.

Manfredo was a student whose “activities” in a national student union were deemed by the Honduran junta to be dangerous for “national security.” The precise fate of Manfredo will never be known, but witnesses testified that he was almost certainly tortured and then killed by the security forces that took him. Seven years later, in a historic first judgment, the Inter-American Court of Human Rights found the government of Honduras responsible for Velasquez’ disappearance. However, forced disappearance continues as a state-sanctioned practice in many countries even today.

And it is not only the dictatorships of Latin America that were in thrall to the “benefits” of such approaches. The response of Assad’s regime to calls for reform and democracy in Syria included multiple incidents of forced disappearance. Systematic long-term detention practiced under Mubarak in Egypt, Ben Ali in Tunisia and Gaddafi in Libya are also examples. Behind by the grandiose, Orwellian disguise of “extraordinary rendition,” the United States and many of its allies have been engaged in executing or colluding in a practice that is nothing other than forced disappearance.
The reason, it seems clear, for the practice of “extraordinary renditions” is to allow those disappeared to be subjected to treatment that would be plainly illegal in the US. Morally it is indefensible. Strategically it is nonsensical: what could be more self-defeating in a battle to defend values than to subvert them so completely in the face of attack. While the Obama administration has taken steps to limit the practice, some forms of it continue and there has been no attempt to reckon with past practices.

It is possible for all sorts of people to carry out forced disappearances, but our concern should be first and foremost with state actors. It is hard to imagine a more cowardly or terrifying abuse of state power than to subvert the most fundamental rights of an individual by disappearing them. Make no mistake – disappearance is a terror tactic – a tactic of terrorism. The means of its execution may become more sophisticated, but the fact that a state is behind it should make it more, not less reprehensible.

The aims of disappearance as a tactic are multiple: it rids the state of opponents, real or imagined; it says “you are nothing, your identity is nothing, your existence is nothing”, it inflicts massive cruelty on those disappeared to provide an extra layer of terror to those left behind; it leaves loved ones burdened for life, condemned to a twilight of fear-filled unknowing. It is hard to think of any carefully planned practice that could so perfectly encapsulate the capacity for human beings in power to debase themselves and dehumanize their victims.

From the day Manfredo Velazquez was taken his family tried to find out where he was but the legal system in his country made a mockery of his and his family’s rights. They could find out nothing.
The decision of the Inter American Court on Human Rights in the seminal “Velazquez Rodriguez” case, seven year’s after Manfredo was disappeared is, arguably, one of the most important court decisions on human rights. It established important standards on what State authorities had to do to make sure the practice of forced disappearances were stopped and in what states had to do to remedy any such violations.

At the heart of those remedies was the identification of the right to truth – that a victim or the victim’s relatives had a right to know what had happened and why; a right to justice – that those responsible for the violations and especially the organization systematic practice of forced disappearance should face justice; and that meaningful reparations should be made to the victims. Manfredo’s case, in many ways, is the first court case to set out the legal ideas that marked the birth of what we today know as transitional justice – the ways in which the rights of victims should be addressed in the wake of massive violations.

While the practice of forced disappearance as a state tactic has a long history, it came under the spotlight during the 1980’s when Argentina and then the Inter-American Human Rights system began to hold those responsible to account. August 30 has been recognized as the UN International Day of the Disappeared. One of the most significant developments in human rights protection of recent times was the International Convention for the Protection of all Persons from Enforced Disappearance which entered into force on 23 December 2010.

These are concrete manifestations of important developments, highlighting which, we hope, will help lead to the eradication of the practice.

The primary message of today must be that it has to stop. That such a practice is not acceptable, under any circumstances. But that is not enough. The legacies of disappearances need to be addressed – the families of the disappeared must have access to the facts – where were their loved ones taken, what happened and why; and those responsible must be held to account. Nothing can encourage such inhumanity so much as impunity.

Manfredo Velazquez never appeared after his Honduran captors abducted him, and it may be cold comfort to his loved ones that his case was a seminal moment in the protection of dissident voices –however palatable or reprehensible their views- around the globe. It is harder now than it was in the past for states to abuse the trust of power so grotesquely. Forced disappearance is a crime against humanity. The decisions made by politicians and officials authorizing such practices in different countries cannot be justified legally or morally. They must be held to account and be shown for what they are: enemies of a civilized society.

Source: http://ictj.org/news/forced-disappearances-are-crimes-against-humanity-can%E2%80%99t-be-justified

Gender and Transitional Justice Conference: Wednesday, April 25th

Kenya: New Justice Effort Meets Scepticism

Judie Kaberia
4 April, 2012

Institute for War & Peace Reporting (London)
Judie Kaberia is an IWPR-trained reporter in Nairobi.

Kenyan's queue on 27 December 2007 to cast their vote in the country's General Election. Opinion polls put the presidential election as the closest since Kenya's independence in 1963.

Rights groups in Kenya are questioning whether a new taskforce set up by the Director of Public Prosecutions, DPP, to review criminal cases stemming from post-election violence in 2007 and 2008 will deliver justice.

They are concerned that the multi-agency taskforce could serve as a smokescreen for continuing inaction. Even if they are proved wrong, it is unclear whether the force will be able to ensure allegations against Kenyan police are properly dealt with.

Months of violence following a disputed presidential election in December 2007 left 1,333 people dead and 350,000 displaced. According to a December 2011 report by the advocacy group Human Rights Watch, only six cases have so far resulted in convictions in the Kenyan courts.
The 20-member taskforce was established on February 9 with a mandate to assess the progress of current investigations into the post-election violence, and to decide whether there is enough evidence to pursue 5,000 cases that are currently before the courts.

The panel, drawn from the DPP's office, the police, justice ministry, the attorney general's office and the witness protection agency, will make recommendations on what actions the government should take to bring the alleged perpetrators of the violence to justice. Dorcas Oduor, a top prosecution official who is heading the taskforce, pledged to submit a report with the recommendations before Kenya's next presidential election, scheduled for March 2013.

It is not the first time the Kenyan authorities have pledged to prosecute the perpetrators of violence. But so far its commitments have not translated into action.

The government twice submitted a bill that would have established a national tribunal to try election violence cases, but parliament rejected it on both occasions.

After the government repeatedly failed to launch domestic prosecutions, the International Criminal Court, ICC, launched its own investigations in March 2010.

The fact that this international intervention was necessary at all raises questions about the Kenyan state's willingness to ensure that justice is served. The announcement of the DPP taskforce came just two weeks after the ICC confirmed charges against four of the six suspects that the tribunal's prosecutor investigated.

In January 2012, ICC judges confirmed that Kenya's deputy prime minister, Uhuru Kenyatta, former higher education minister William Ruto, cabinet secretary, Francis Muthaura, and Kass FM radio presenter Joshua Arap Sang would face trial for crimes against humanity, as alleged orchestrators of the violence.

"It is interesting that the government is talking again about bringing accountability to the victims. This is the third time that the DPP has put together a team to investigate the 5,000 cases, but nothing [has yet] happened," Neela Ghoshal, Nairobi-based researcher for Human Rights Watch, said.
"Sometimes the justice system can function independently. But the big question is how many Kenyans trust the local courts? Any time there is something happening at the ICC, the government makes many statements on how it's going to seek justice in Kenya."

On past record, Ghoshal has yet to be convinced that the new taskforce will pave way for prosecutions of lower- and mid-level perpetrators.

"What different is this taskforce going to make?" she said. "There are thousands of cases out there. One cannot really trust such statements from the government until we see the results. There are other areas in which the government - if it cared about the victims - could have made a difference yesterday."

Opposition supporters brandish crude weapons during protests in Nairobi December 31, 2007.

FAILURE TO ADDRESS POLICE ROLE IN VIOLENCE

According to the Commission of Inquiry on Post Election Violence, an international investigative panel set up by the Kenyan government, police were responsible for at least 405 fatal shootings and hundreds of injuries and rapes during the disturbances of 2007-08.

In its investigations into the actions of top-level figures accused of sponsoring the violence, the ICC found reasonable grounds to believe that police were deployed in strongholds of the coalition government's Orange Democratic Movement, including Kisumu, and used excessive force against civilians.

Despite this, no member of the police force has been convicted. One police officer was prosecuted in relation to police shootings in Kisumu, but he was later released.

The Kenyan government insists investigations into the Kisumu shootings are continuing. But the DPP has not said how many of the 5,000 post-election violence cases currently before the courts involve allegations against the police.

Christine Alai of the International Centre for Transitional Justice, ICTJ, in Nairobi warned that the taskforce must not conduct substandard investigations into the actions of police, or omit important cases.

"It is obvious something has to be done with police... to ensure we can get accountability and that cases are not thrown out on technicalities. The process should not be a sham due to shoddy investigations. Victims and Kenyans are tired of sham processes," Alai warned, referring to previous investigations into the shootings in Kisumu.

Ghoshal says Kenyan police have repeatedly failed to admit responsibility for crimes against civilians. According to victims interviewed by Human Rights Watch, police failed to document complaints submitted during the violence.

"I have spoken to victims who were shot by police. They told me they went to the police and told them that they had been shot by the police. And a number of police said to them, "Sorry we can't [accept] that," said Ghoshal.

Ghoshal contrasted the authorities' failure to bring criminal prosecutions with the civil cases which a number of victims of the violence have successfully brought against police force members.
"Twenty victims have won the civil cases [against the police] and the majority of them in Kisumu and Nairobi, yet the attorney general has refused to pay damages, so where is the political will of the government?" Ghoshal said.

Ken Wafula, director of the Eldoret-based Centre for Human Rights and Democracy, doubts whether police will be investigated and prosecuted. He would like to see a local tribunal drawn from international as well as Kenyan legal experts.

"There are challenges. How do you grill the police who are supposed to carry out the investigations? Some of them are perpetrators. That is why we have been asking for a special tribunal. It would have been the most appropriate mechanism to address this matter," he said.
It is not yet clear whether the panel will be able to call for such a special tribunal to be set up to handle outstanding cases, if it deems that appropriate.

Prime Minister of Kenya, Raila Odinga.

ARE AUTHORITIES WILLING OR ABLE TO PURSUE CASES?

Kenya's former justice minister, Mutula Kilonzo, who is now in charge of education, acknowledges that it has been a challenge to prosecute police accused of committing crimes during the unrest.
Kilonzo spoke to IWPR shortly before he was replaced as justice minister on March 27 by Eugene Wamalwa of the coalition government's Party of National Unity.

"Let's appreciate that reforms in the police force are ongoing. The mere fact that crimes were committed by police does not in the end mean that crimes will be covered [up]," he said. "There is also a difference between regular police and the Criminal Investigation Department. I am confident that it is possible to prosecute even police involved in the [post-election] crimes."

Citing a shortage of prosecutors and a lack of funding, Kilonzo warned that the DPP might still struggle to conduct effective prosecutions

"The challenge is that DPP only [exists as a] structure. It is not well funded. It does not have sufficient capacity [and] it has only 93 prosecutors and very little money," he said.
Kilonzo also expressed concern that politicians might interfere with the justice process since some of them view any process designed to uncover the truth about the post-election violence as directed against them.

"Politicians should stop politicising and stop thinking it's about them. They assume the taskforce is about them. The fact is that international crimes occurred in Kenya," he said. "These things happened and will affect the country in future if this is not resolved."

There have been mixed reactions to the DPP's move to make progress on outstanding cases.
Mzalendo Kibunjia, the chairman of the National Cohesion and Integration Commission, NCIC, says the review of the cases comes too late, as Kenyans are now starting to move on from the horrors of 2008.

"I think this is going to open the wounds. The government did not do anything for all these years - people have now begun to heal. This is going to worsen the problem," he said.

By contrast, Wafula believes that reexamining the cases and moving ahead with prosecutions is a necessary evil in order to unearth the truth about the violence and thereby help prevent a repetition of it, particularly around next year's elections.

"It is late, yes; but it is necessary to set an example to Kenyans as they go to the polls. A form of prosecution is good so that people cannot repeat the same [crimes]," he said.

Wafula believes it would make sense to reduce the 5,000 cases to about 300. He argues that this would allow the DPP to deliver exemplary justice while also processing a more manageable number of cases and ensuring the necessary witnesses and solid evidence are in place.

"Let them sieve through the 5,000 cases and thin down to a few cases with evidence. Then deal with perpetrators, to send a message," Wafula said.

Alai of the ICTJ, however, wants as many cases as possible to be investigated thoroughly and objectively.

"It's not a numerical issue," she said, adding that the reasons for past delays in the justice process should also be exposed.

"We have to know what happened for the past four years. Why did the process stall?" she said.
Alai hopes that the DPP's initiative is not an attempt to cement the Kenyan government's challenge of admissibility at the ICC. Last August, ICC judges rejected a challenge to the legality of the court's intervention in Kenya.

Following the confirmation of charges against four suspects this January, lawyers lodged a second admissibility challenge based on the view that the alleged crimes were not serious enough to fall under the ICC's jurisdiction. The court's appeal judges are currently considering this submission.
"Let [the government] not focus on ICC, let the process take its course," Alai said.

Source: http://allafrica.com/stories/201204041065.html

Guatemala becomes the 121st State to join the ICC’s Rome Statute system

Press Release: 03.04.2012

ICC-CPI-20120403-PR783

Guatemala deposits its instrument of accession to the Rome Statute of the ICC at the United Nations Headquarters in New York on 2 April 2012 © UN/Win Khine

On 2 April 2012, the United Nations received from the Government of the Republic of Guatemala its instrument of accession to the Rome Statute of the International Criminal Court (ICC). The Rome Statute will enter into force for Guatemala on 1 July 2012, bringing to 121 the total number of States Parties.

The ICC welcomed Guatemala's accession to the Rome Statute. The ICC President, Judge Sang-Hyun Song, stated: “I am delighted that the statements made by Guatemala at the Review Conference of 2010 as well as the latest Assembly of States Parties concerning its intention to join the ICC have now fully materialised. With the historic step now taken by Guatemala, only two countries in Central America – El Salvador and Nicaragua – remain outside the Rome Statute system, and I hope they too will actively consider acceding to the treaty in the near future”.

The President of the Assembly of States Parties, Ms Tiina Intelmann, commented: “The accession by Guatemala is a testament to the will and steadfast determination of its people and its leaders to strengthen the rule of law and to contribute to the international endeavour to end impunity for egregious crimes”.

Source: http://www.icc-cpi.int/NR/exeres/E2BBA18C-A830-4504-B9BE-6F118C3690F7.htm