International Justice Day Round-Up III: Salvadoran Amnesty Law, Germany Apologizes to Namibia over Genocide, Corporate Criminality, and Colombia Ceasefire

This is Part III of an international criminal justice round-up covering ten of the top developments in the field this spring and summer. Part I is here and covers the Habré case, the travel of President Al-Bashir of Sudan, and the Open Society Justice Initiative’s report on crimes against humanity in Mexico.  Part II—which covered sexual and gender-based violence (SGBV) in the Bemba case, the ICC Statute aggression amendments’ 30^th ratification by Palestine, and more justice for Chile—is here.

7. Salvadoran Amnesty Law Declared Unconstitutional: El Salvador’s constitutional court recently declared the Salvadoran amnesty law unconstitutional, marking the end of what is perhaps the longest-running and most impenetrable amnesty law on the hemisphere. The Constitutional Court also confirmed that there are no statutes of limitations for war crimes and crimes against humanity as a matter of customary international law.  For the best analysis of the judgment, see Naomi Roht-Arriaza’s terrific post over at IntLawGrrls. By way of background and impact:

• The Salvadoran legislature enacted the amnesty law days after the Truth Commission for El Salvador determined in 1993 that 85% of the abuses committed during the civil war were attributable to government and associated forces. In fact, this legislation replaced an earlier amnesty law, enacted in 1992, that would not have applied to persons who “participated in grave acts of violence” as determined by the Truth Commission. The first time the Constitutional Court considered the constitutionality of the amnesty law, it dismissed the case on grounds sounding of the political question doctrine.  The law was unsuccessfully challenged again in connection with a lawsuit involving the El Mozote massacre, committed by the vicious Atlacatl brigade.
• The amnesty law had already been declared inconsistent with El Salvador’s human rights obligations by the Inter-American Court of Human Rights in a 2012 case arising out of the El Mozote massacre. In that case, El Salvador acknowledged responsibility for the massacre and apologized to the victims, so the Inter-American Court occupied itself with determining the applicable legal consequences under the relevant human rights treaties, including the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture, and the Inter-American Convention for the Prevention, Punishment and Eradication of Violence Against Women. Specifically, the Inter-American Court—invoking its prior case law invalidating amnesties in Brazil and Uruguay and other comparable international jurisprudence—declared that the amnesty law ran afoul of El Salvador’s obligations to respect and give legal effect to the rights in the American Convention. It also determined that the law violated victims’ rights to a fair trial, to judicial protection, and to know the truth (which is implicit in other Convention rights).  The El Mozote case presented a special twist given that the events in question were committed in the context of a non-international armed conflict governed by Protocol II to the Geneva Conventions, which at Article 6(5) states:

At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.

The Inter-American Court noted at ¶286 that this provision applies only to persons (i.e., rebels or insurrectionists) who have taken part in hostilities (and might be prosecutable for such conduct) and does not countenance blanket amnesties for war crimes or other international crimes:

article 6(5) of Additional Protocol II refers to extensive amnesties in relation to those who have taken part in the non-international armed conflict or who are deprived of liberty for reasons related to the armed conflict, provided that this does not involve facts, such as those of the instant case, that can be categorized as war crimes, and even crimes against humanity.

In conclusion, the Inter-American Court at ¶300 called upon El Salvador to “rectify the conditions of impunity” and “remove all the obstacles, de facto and de jure, that have promoted and maintained it.”

• While the amnesty law was in place in El Salvador, virtually the only justice arising out of the widespread abuses during the country’s civil war has been found abroad, most notably in courts in the United States, in cases under the Alien Tort Statute and the Torture Victim Protection Act, or in Spain under that country’s universal jurisdiction statutes. In Spain, the most important case is that involving the massacre of six Jesuits, their housekeeper, and her daughter in 1989. One of the defendants in that case, Colonel Inocente Orlando Montano, was found living in the United States. He has served a sentence for immigration fraud, and the court has since certified to Secretary of State John Kerry that his extradition from the United States to stand trial in Spain is lawful. (My colleague Professor Terry Lynn Karl submitted an expert report in the case). Montano’s habeas petition is awaiting a ruling, which has put the State Department’s process in abeyance.  El Salvador is for the most part cooperating with the Spanish proceedings.
• Under these circumstances, the United States should declassify the remaining U.S. government documents related to the conflict in El Salvador (including files from the State Department as well as from the Pentagon and intelligence community (the CIA and the Defense Intelligence Agency (DIA)).  Among other declassification efforts, the United States has already declassified the Argentine files on the 40^th anniversary of the coup there and many of the Chilean files (although this declassification effort remains incomplete). Victims groups dedicated to El Salvador have submitted multiple requests for mandatory document review (MDR) under Executive Order 13526 and filed many Freedom of Information Act (FOIA) requests, but these have not always yielded fruit and thousands of pages remain inaccessible to the general public, despite the passage of time.  Opening up these files would send a strong signal about transparency, the rule of law, and accountability as El Salvador enters a post-amnesty world and as the United States continues to acknowledge its own role in the Southern Cone during the Cold War.

8. Germany Apologizes to Namibia for Herero “Genocide”. After several rounds of negotiations, Germany has finally indicated it will formally apologize to Namibia for the genocide of upwards of 100,000 Namibians in 1904-8 during Germany’s colonial rule of what was then known as South-West Africa. Some additional details:

• The international crime of genocide, as currently defined, hinges on the intent to destroy, in whole or in part, a racial, ethnic, religious or national groups. German General Lothar von Trotha, in charge of quelling the anti-colonial resistance, articulated this intent when he wrote:

I, the great General of the German soldiers, send this letter to the Herero people. The Herero are no longer German subjects. …The Herero nation must … leave the country. If they do not leave, I will force them out with the Groot Rohr [cannon]. Every Herero, armed or unarmed … will be shot dead within the German borders. I will no longer accept women and children, but will force them back to their people or shoot at them.  …

I know enough of these African tribes. They are all alike insofar as they only yield to violence. My policy was, and still is, to perform this violence with blatant terrorism and even cruelty. I finish off the rebellious tribes with rivers of blood and rivers of money.

Although the term “genocide” had not yet been formally coined—that would come in 1944 with the ground-breaking work of Raphaël Lemkin—the Herero massacre is now widely considered to be the first genocide of the 20^th century. Lemkin’s work laid the groundwork for the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Nuremberg Charter did not list “genocide” as a prosecutable crime; however, the indictment against senior Nazi figures did accuse them of committing

deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial or religious groups.

• In 2001, dozens of the Namibian victims’ ancestors brought suit against German companies that were alleged to have used slave labor and concentration camps during imperial Germany’s colonial occupation. Although originally filed in the Superior Court of the District of Columbia, the case was removed to federal court on federal question grounds.  The D.C. Circuit ultimately dismissed the complaint for failure to state a claim upon which relief can be granted and for lack of personal jurisdiction over one of the defendant corporations under the District of Columbia’s long arm statute. (Plaintiffs disclaimed reliance on the Alien Tort Statute in an effort to remain in state court).
• The term “genocide” is politically fraught—witness the West’s herculean efforts to avoid deploying the term in connection with mass violence against members of the Tutsi ethnic group in Rwanda—so Germany’s willingness to accept responsibility for the abuses during its colonial past is commendable.
• Germany’s designation of the killings in Namibia as genocide will further highlight Turkey’s stubborn hostility to any employment the term vis-à-vis the killings of members of the Armenian population of the Ottoman Empire in World War I, which also pre-dated the Genocide Convention. Although Prime Minister Erdogan has offered condolences for the mass killing of Armenians, Turkey reacted strongly to Pope Francis’s commemoration of the centennial of the “first genocide in the 20^th century” in April 2015. In the United States, President Ronald Reagan made reference to the “genocide of the Armenians”, and 43 U.S. states have recognized the Armenian genocide, but subsequent presidential administrations have been more circumspect. Israel is equally ambivalent, given its relations with Turkey and Azerbaijan, which is locked in conflict with Armenia over the contested Nagorno-Karabakh territory.
• No German reparations or other legal consequences are contemplated following this announcement, although development aid will continue.

9. Special Tribunal for Lebanon finds Media Organization and Editor-in-Chief Guilty of Contempt of Court: On July 15, 2016, the Special Tribunal for Lebanon sitting just outside The Hague released its judgment convicting a corporation that owns a Lebanese newspaper and the paper’s Editor-in-Chief/Board Chair for contempt of court for publishing confidential information related to anonymous witnesses. Sentencing will happen later this summer. Additional details:

• The judgment endeavored to balance the need to ensure the integrity of the proceedings before the STL (requiring a showing that the accused knew the “likelihood” that their conduct would undermine “public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses”) with the right to freedom of the press. The STL looked to the International Covenant on Civil and Political Rights (ICCPR) for the content of this latter right.  Article 19 of the ICCPR indicates that although everyone enjoys the right to freedom of expression,

The exercise of [these] rights … carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 10(2) of the European Convention on Human Rights (ECHR) contains similar clawback clauses. (Although not binding on the STL, the ECHR was deemed relevant in “assessing the highest standards of international human rights on this point”).  Accordingly, the Trial Chamber ruled that:

At the international level, all of the relevant principles and rules concerning free expression impose limits on journalists in order to safeguard other conflicting and worthy interests.  … [I]n Lebanon, as elsewhere, freedom of expression finds its limits in the legitimate protection of other societal interests. … Publishing such information is generally prohibited by principles governing the media and serves no journalistic value or pressing social need.

• The STL is the only international or hybrid tribunal to exercise jurisdiction over legal persons, although the proposed African Court of Justice and Human Rights and the proposed mixed chambers in the Democratic Republic of Congo would too, as I have discussed here.
• A previous STL contempt case against a different media outlet failed at trial on the grounds that the acts of the individual journalist could not be attributed to the corporate entity as required by Lebanese law. On appeal, the STL reversed the Trial Chamber’s conviction of the individual journalist in that case and affirmed the acquittals on the remaining counts in the indictment against both defendants.

10. More Progress in the Colombian Peace Process: The government of Colombia and the Revolutionary Armed Forces of Colombia (FARC) signed a bilateral ceasefire agreement on June 23, ending the longest-running conflict in the hemisphere. (The agreement does not include other paramilitary groups). Some details:

• Following years of peace talks in Havana, Cuba, it is expected that the full peace agreement will be finalized soon (indeed, it was originally scheduled to be signed today for today). On these pages, Fionnuala Ní Aoláin has a cogent analysis of the terms of that agreement here and the entire transitional justice framework here.  A conditional amnesty is under consideration.
• The Colombia situation has been under consideration by the Office of the Prosecutor for years. (Specifically, it is in Phase 3 (admissibility) of the preliminary examination process).  It remains to be seen whether the entire package is sufficient to trigger complementarity. It should be noted that the ICC would have no jurisdiction over war crimes committed in Colombia from the date the ICC Statute entered into force for Colombia (November 1, 2002) through November 1, 2009. On that date, Colombia’s declaration under Article 124 of the ICC Statute expired by its own terms.  Article 124 offers states parties a chance to opt out of war crimes prosecutions for a period of 7 years:

Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

My further analysis of the history and impact of Article 124 is here.  Only France and Colombia availed themselves of Article 124.

Obviously, this top 10 list is incomplete and there are many other events and developments that could be addressed, including

• The Karadžić case before the ICTY, which Alex Whiting has covered here;
• The Syrian Commission of Inquiry’s report on genocide against the Yezidi people;
• President Obama’s new Executive Order on Atrocities Prevention;
• A Peoples’ Tribunal conclusion that the government of Indonesia committed genocide during anti-communist purges in the 1960s;
• A new immunities case before the International Court of Justice involving Equitorial Guinea and France; and
• The African Union’s decision to deploy a regional peacekeeping force in South Sudan.