Prosecuting Gender-Based Crimes: An Interview with Dr. Hilmi M. Zawati

A conversation with: Regina Paulose

In a virtual interview, accompanying the release of Dr. Zawati’s new book, Fair Labelling and the Dilemma of Prosecuting Gender-Based Crimes at the International Criminal Tribunals by Oxford University Press (2014), we discuss the prosecution of gender based crimes in the international legal system. Dr. Zawati explains below that the lack of accurate description of gender-based crimes in the statutory laws of the international criminal tribunals and courts infringes the principle of “fair labelling,” lead to inconsistent verdicts and punishments, and constitutes a barrier to justice. As a result, sexual violence in wartime settings should be prosecuted separately as crimes in themselves, not as a subsection of war crimes or crimes against humanity. Continue reading

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Enforcing ICL: The Iran Tribunal and the Rios Montt Trial

WRITTEN BY: REGINA PAULOSE

“Silence is the most powerful scream” – Anonymous

There are many incidents that have violated International Criminal Law (ICL) that have taken place in global history but have never been presented to a “legitimate” tribunal for consideration.  Thankfully, this has not stopped victims from finding a way to address the wrongs that have been committed against them. After WWII, the Nuremburg Tribunals showcased that perpetrators of horrible crimes would face punishment by the international community (or at least by the victors of war). Unfortunately, as history continued to unfold, it became clear that whenever an atrocity occurred it did not necessarily mean that every perpetrator would be held accountable for violations of ICL.

Circa 1966, Playwright Bertrand Russell and Philosopher Jean Paul Sartre created the “Russell Tribunal” which investigated crimes alleged to have been committed by the U.S. during the Vietnam War.[1] As Jean Paul Sartre eloquently described,

“[t]he Russell Tribunal was born of this doubly contradictory conclusion: the judgment of Nuremberg had necessitated the existence of an institution to inquire into war crimes and, if necessary, to sit in judgment; today neither governments nor the masses are capable of forming one. We are perfectly aware that we have not been given a mandate by anyone; but we took the initiative to meet, and we also know that nobody could have given us a mandate. It is true that our Tribunal is not an institution. But, it is not a substitute for any institution already in existence: it is, on the contrary, formed out of a void and for a real need.”[2]

These activists envisioned that one day the world would have a permanent court to address war crimes, crimes against humanity, and genocide. Philosophically, the ad-hoc tribunals and the ICC are the ideals that Sartre envisioned in his inaugural address. In reality, “selective justice” has continued to cripple the international rule of law. However, as the Iran Tribunal and the Rios Montt Trial prove, citizens are moving together to force open the doors of justice to accommodate them so that they can determine their own truths for the atrocities they have witnessed.

Iran Tribunal

Inspired by the Russell Tribunal, survivors, families of deceased victims, activists, and scholars, created an “Iran Tribunal” to address the atrocities that were committed in the 1980’s by the ruling regime in Iran.[3]  The Tribunal specifically focused on the atrocities committed from 1981-1988. Ayatollah Khomeini appointed a provisional government in 1979. This provisional government began to arrest previous regime members and members of political organizations who spoke out against the Islamic regime. It is estimated from these actions, that approximately 15,000 people were arrested, tortured, and summarily executed.

The Tribunal heard and documented detailed evidence that showed the regime’s use of forced disappearances, various kinds of torture, massive rapes, and other forms of cruel and inhumane treatment of prisoners. Witnesses who came before the Tribunal also gave names of hundreds of victims who were executed without any due process. They described how these prisoners were held for as little as three days and executed by a firing squad or by hanging.

In addition there was testimony regarding various massacres that took place. The Jahrom Massacre was described as follows:

“After Mahmoud Vatanparast, the Governor of Fars Province, refused to rig the province’s parliamentary election results in 1980 in favour of Mohammed Behsarati, a losing candidate, the shari’ah leader of Jahrom ordered the murder of Vatanparast’s entire family from the pulpit of the mosque. Several family members where then summarily executed, including by crucifixion, defenestration, skinning alive, being cut into pieces with shears, and being dragged along the asphalt behind a moving van. Children as young as nine were arrested; others were incarcerated and then killed under torture or in the massacres of 1988. After inhabitants of Jahrom smelt a foul odour coming out of a canal, seventeen dead children were shortly found in the water.”[4]

During the Rasht Prison Fire, several inmates burned to death as guards would not open their cells to allow them to escape the flames. There were massacres in Kurdistan, where hundreds of Kurds were killed in an airport and children were executed in front of their schools.  The regime also used “pardon commissions” but it was commonly referred to as “death commissions.” Prisoners would be brought before the commission and questioned as to their religious/political beliefs. If the commission did not approve of their answer, the prisoners would be taken out and executed.

In its Findings, the Tribunal documented the perpetrators involved and the various locations where these crimes took place. In the Final Judgment  the Tribunal held that the “evidence tendered in these hearings supports a finding that crimes were committed by agents of the Islamic Republic of Iran, beginning with the Supreme Leader, and ending with the executions in the prisons and these constitute a breach of international law.”[5] It concluded that the Islamic Republic of Iran committed crimes against humanity during the 1980-1989 period.

Rios Montt Trial

The Iran Tribunal is not an isolated incident of victims demanding justice for the heinous acts of its leaders. In Guatemala, the road to bring Rios Montt to trial for his actions in 1982-1983 for genocide and crimes against humanity was a long one.

“Guatemalan victims’ organizations filed a war crimes case against the general in 2001, but it got stuck in the country’s legal system. Years later, under the principle of universal jurisdiction, the Spanish Constitutional Court accepted a case that had been brought by Nobel laureate Rigoberta Menchú charging Ríos Montt and seven other commanders with genocide, terrorism and torture. A tenacious lawyer named Almudena Bernabeu began the investigation. In 2006 a Spanish court issued arrest orders for the general and others, but the Guatemalan government denied extradition. When Ríos Montt was later elected to Congress, he gained immunity from prosecution. Then another extraordinarily brave woman stepped in. After Claudia Paz y Paz became Guatemala’s attorney general in 2010, she filed a case against Ríos Montt (after his term ran out) and two other military commanders on charges of genocide, torture and terrorism.”[6]

Although it has been many years since these events took place, the victims stopped at nothing to bring these perpetrators to justice. The Rios Montt trial is the first time a national court has prosecuted its own head of state for the crime of genocide.[7] The case is still on going as the latest information indicates that the case is moving on to the Sentencing Tribunal.[8]

International Humanitarian Law (IHL) makes it clear that it is prohibited to kill anyone who is not taking part in international armed conflict or internal armed conflict. Even if it is unclear if the situation is an armed conflict, human rights law forbids extrajudicial killing.[9] When violations such as these take place under IHL, the most common method in enforcing these laws is prosecuting individuals through war crimes tribunals.[10]

Whether or not a particular war crimes tribunal exists, has appropriate jurisdiction, or chooses to take action, states have a continued responsibility. “States are also bound to prosecute in their own courts any person suspected of having committed a grave breach of the Conventions, or to hand that person over for judgment to another state. In other words, perpetrators of grave breaches, i.e. war criminals, must be prosecuted at all times and in all places, and states are responsible for ensuring that this is done.”[11] IHL goes deeper in that “it requires States to seek out and punish any person who has committed a grave breach, irrespective of his nationality or the place where the offence was committed. This principle of universal jurisdiction is essential to guarantee that grave breaches are effectively repressed.”[12]

So how does one reconcile that only some events in history are prosecuted and others neglected – especially when international law promotes universal jurisdiction? ICL cannot be taken seriously if it is selectively enforced. The problem is not a lack of laws to regulate unlawful conduct; it’s the lack of political will to take action.  The Iran Tribunal and the Rios Montt trial are symbolic indications of a growing movement. It is a movement opposing sweeping atrocities under the historical rug and creating accountability even when the political will to hold perpetrators accountable may not exist.


[1] The U.S. did not acknowledge the legitimacy of this Tribunal. Since this Tribunal other “Russell Tribunals” have been created which acknowledge different events. The latest Tribunal created has been on Palestine. http://www.russelltribunalonpalestine.com/en/

[2] Jean Paul Sartre, “Inaugural Statement” Selections from the Russell Tribunal, http://www.vietnamese-american.org/contents.html

[3] The facts that I use here are taken from the Iran Tribunal, Findings of the Truth Commission, July 30, 2012, available at: http://www.irantribunal.com/Eng/PDF/Commission%20Report-p.pdf

[4] Findings, 2.3 -2.3.1.4

[5] Final Judgment in the Iran Tribunal Published, (February 7, 2013) available the Tribunal website and a press release summary can be found at: http://www.irantribunal.com/Eng/PDF/Press%20release-judgment.pdf.

[6] Laura Carlsen, Genocide on Trial in Guatemala, The Nation, available at: http://www.thenation.com/article/166526/genocide-trial-guatemala#

[7] Amy Ross, “Wading Uncharted Waters: The Trial of Ross Montt” ALJAZEERA, February 4, 2013, available at: http://www.aljazeera.com/indepth/opinion/2013/02/20132364350499257.html

[8] Kate Doyle, “Rios Montt on Trial for Genocide in Guatemala” February 7, 2013, available at: http://www.cipamericas.org/archives/8920

[9] The most authoritative source on IHL issues is the ICRC. The ICRC also maintains a database with all the treaties and relevant IHL texts which can be found at: www.icrc.org

[10] American Red Cross, Prosecutions of Violations of IHL, (April 2011), available at: http://www.redcross.org/images/MEDIA_CustomProductCatalog/m4640075_IHL_ProsecutionofViolations.pdf

[11] ICRC, “How are War Criminals Prosecuted under International Law?”  (January 1, 2004) available at: http://www.icrc.org/eng/resources/documents/misc/5kzmnu.htm

[12] Id

Why it may be time for Truth and Reconciliation for the STL and Lebanon

WRITTEN BY: SEVANE TADEVOSSIAN[1]

In this post I explore the question of whether the Special Tribunal for Lebanon (STL) could benefit from the establishment of a Lebanese Truth and Reconciliation Commission (TRC). The establishment of a TRC may be particular useful with regards to its (1) legitimacy, (2) outreach, and (3) rule of law.  To understand the very mixed and complex cultural background where a new tribunal is trying to settle in, it is crucial to have an understanding of the specificity of Lebanon. Indeed, the country has suffered a violent civil war which started in 1975 and lasted more than ten years. Lebanon was occupied by Syria starting in 1982, and Syrian troops were finally withdrawn in 2006, following UN Resolution 1559. However, Syria kept powerful influences in Lebanon through the Hezbollah, a Shia party.[2] There is a multitude of religious groups linked to political parties in Lebanon, the main ones being the Sunni Muslims, the Shia Muslims, the Maronite Christians, the Greek Orthodox, the Druze, and so forth.[3] It is in such a fragile and diverse context that the Special Tribunal for Lebanon (STL) is trying to bring justice and stability to the country.

On 14 February 2005, a suicide car bomb killed the former Lebanese Prime Minister Rafiq Hariri and 22 others persons. In response, the United Nations (UN) Security Council (SC) created on 7 April 2005 the International Independent Investigation Commission (UNIIIC) to investigate this terrorist attack. Following these investigations, the UN, in cooperation with the Lebanese government, decided to sign an agreement (the Agreement[4]) to create a Special Tribunal for Lebanon. The latter has a mandate to indict the perpetrators of the 14 February 2005 attack, as well as the perpetrators of eventual subsequent attacks as long as they would be linked to the first attack and would resemble it in terms of its methods and motives. Unfortunately, political killings are very common in Lebanon, thus increasing expectations that the STL finally will help with the peace restoration within the country.

The Special Tribunal for Lebanon is the last tribunal to have entered the world of international criminal justice. It differs from other similar instances due to its uniqueness, both because of its structure and its mode of functioning. However, the existence of the STL is hotly disputed because of its partial inactivity five years after its entry into force, and especially because of its very poor reception by the Lebanese population.

Legitimacy

One of the main issues of the STL is the debate on why it was established, i.e. questions regarding its legitimacy, as some critics have justifiably stated that the STL is the incarnation of selective justice in the sense that it is only created to find truth and justice for a Prime Minister. Where the STL’s legitimacy, and de facto credibility, is most exposed within the Lebanese population itself and this fact contributes to hindering national reconciliation. Undeniably, the STL divides the population into two camps: for and against the STL.[5] Sunnis and Christians, who form the “March 14 movement,” support the STL, placing high hopes in it to fight against impunity and finally see an end to political assassinations in Lebanon.[6] For both the Sunnis and the Christians, the STL has a symbolic value. On the contrary, the “March 8 coalition,” consisting of the Shia parties Amal and Hezbollah, vehemently oppose the existence of the STL because they suspect it of being an instrument of foreign political powers.[7] Thus, the STL is facing many challenges to its general acceptance by the Lebanese population, particularly owing to the local perceptions from a historical and political context tinged with a long recent civil war.[8] Its legitimacy is flawed, as notes Sheikh Mohamed Hussein Fadlallah:

“How can this tribunal achieve legal results and establish judicial rights when it is rejected by a large segment of the Lebanese population and by Syria? How can its resolution be implemented without creating tension? When we see that the states pushing most for this tribunal are the US, the UK and France, the big question is whether their aim is really to bring the truth or to introduce their interests in the region through it?”[9]

Therefore, I believe it is fundamental for the STL to clearly face the fears and allegations of its critics, first, in order to be able to carry out its mandate thoroughly, and second (if not above all), to calm the tensions it has created within the Lebanese population. Indeed, I think that beyond its mandate, is it also the STL’s duty to bring peace to Lebanon as the mandate of the STL is basically an order to establish justice and peace, albeit limited to the Hariri case but implicitly to the rest of the country as well, knowing the implications of the Hariri case.[10] Besides, the Security Council (SC) established the STL at Lebanon’s request. Therefore, it means that the Lebanese government is searching for specific goals within the convention signed with the SC. Indeed, the SC granted the Lebanese government’s wishes by agreeing to a convention, but the true desire of the government was not only tied to the Hariri case: it was a national plan to find justice. And there is no need to look too deeply into the matter to come to the conclusion that it was made with a view to bring violence and impunity to a halt in order to finally achieve peace and security (the involvement of the SC under Chapter VII of the Charter makes it even more obvious).

At the end, the true issue comes down to ownership. Only the feeling of ownership of the STL by the Lebanese population will establish its much desired acceptance, legitimacy, and credibility. As one scholar stated, “the question of ownership of the tribunal is the decisive question. First and foremost, such a tribunal has value only to the degree in which societies see it as an essential component to clarify past crimes and to rebuild trust in the institutions and improve the rule of law. This being said, the work of a criminal tribunal – even when it is highly successful – is a long process. Nuremberg trials have been perceived from 1946 to the mid-sixties at being a tribunal of victors. It has taken a generation in order that the legacy of the Nuremberg trials became part of the German ethos. To believe that the Hariri Tribunal will be a quick fix to create a common narrative among Lebanese would be a major mistake.”[11]

It tastes bitter to admit that these comments made in 2007 turned out to be true and continues to be so to this day.

Outreach

Outreach is widely connected to legitimacy. Indeed, without a good outreach policy, no explanation can be given concerning legitimacy or further concerns, thus keeping the STL misunderstood. But from this misunderstanding also stems the lack of credibility, the possibility of political manipulations, and so forth. Therefore, it is completely in the STL’s interest to develop outreach towards the Lebanese population, and to be at service for any questions or concerns the Lebanese might have, as at the end of the day, the STL was established to bring justice, peace and stability to the country. And no peace and stability can be maintained in Lebanon if its own population has serious reservations and legitimate doubts about the most important symbol of justice in the country. Even if the STL has developed a strong social media network and its representatives have tried to integrate an international response to its issues, it seems like all these efforts are not enough to justify and convince the Lebanese population on its results, and most importantly on its future existence. Lebanon can get inspired by the process in Sierra Leone where their TRC launched a “sensitization phase” of its program and work in 2002. Again, there is plenty of room for improvement of the STL’s outreach.

Legal culture against impunity: gaining respect for the rule of law

The STL could benefit a great deal from a Lebanese TRC. If a tribunal, i.e. the STL in our case, is the place where the rule of law is to be respected and implemented, it may not have an impact outside of the tribunal. Indeed, resulting from the meager outreach work of the STL, the lessons learned and the principles and values defended in the tribunal may not always be available for the other legal practitioners, let alone the population. It would be very useful and helpful for the Lebanese to set up an institution that would aide them on the workings of the STL, in terms of both its strengths and weaknesses: learn from its mistakes, construct from its successes. In my opinion, the Lebanese rule of law as well as Lebanese themselves would have a lot to gain from such a mechanism: a place where information and updates would be shared, and legal strategies could be discussed; a place where the STL jurists could exchange views with Lebanese jurists, the nationals learning from the internationals, and vice-versa. Indeed, it is not only up to the international jurists to train the local jurists, but maybe to even greater benefit the domestic Lebanese jurists could explain to the internationalized branch of the STL (the STL being a “hybrid” tribunal, i.e. a mix of local and international staff) the local legal culture and norms.

But in case of such an institution never seeing the light of day… could it be possible that local jurists as well as the Lebanese population both simultaneously and mutually strengthen respect for the rule of law via a TRC? If so, this would be a revival of the Lebanese will to fight against injustice. A TRC could be the perfect place where the STL would extend its work outside the persons concerned by its mandate, hence my belief that a TRC could be an interesting tool for the STL and the Lebanese situation as a whole.

The Special Court for Sierra Leone and its TRC

The TRC in Sierra Leone was established on July 7 1999, after the signing of the Lomé Peace Agreement (1999). The TRC “has been established through an act of Parliament by the government of Sierra Leone, [but it] will be an independent body. The commission was later enacted in 2000 by the President and Parliament.”[12] The TRC in Sierra Leone has two main goals: to investigate the violations, and to restore human dignity to the victims. Its specific mandate is the following: “to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone, from the beginning of the conflict in 1991 to the signing of the Lomé Peace Agreement; to address impunity, to respond to the needs of victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered.”[13]

Vargas states that “it is clear that the TRC is not a judicial body; however, since there is a Special Court for bringing to justice those who were the most responsible of violations during the war, the TRC can focus then in a catharsis to promote reconciliation and reduce conflict over the past and not necessarily in finding who the guilty are. The TRC is a fact finding body but with the additional responsibility of setting up a follow-up process to put the country together once more.”[14]

The Moroccan TRC

The Moroccan TRC, called the Instance Equité et Réconciliation (IER), was created on 7 January 2004 by King Mohamed VI to investigate human rights violations such as disappearances and arbitrary detentions that took place between 1956 and 1999 in Morocco. Besides bringing justice to the victims of these violations, part of its mandate is to produce a report on these violations and to suggest various forms of compensations and reparations to the victims. King Mohamed VI further asked the IER to formulate recommendations to help Morocco in preventing the repetition of such crimes.[15] However, some criticism was leveled since grave human rights violations such as torture were not in the TRC mandate. Such criticism is what the STL is currently experiencing on its selective mandate.[16]

Building Bridges Between Mechanisms

Building bridges by making links between mechanisms that have worked and the possibility of creating a TRC is where such a realization might be judged as realistic or not. It could be achieved by relying on concrete measures, tying theory to practice with some guidelines to follow and guarding against repeating mistakes using previous experiences.

Sierra Leone did not refrain from establishing a TRC despite the existence of a special court. Even if it meant that more money was to be spent in the judicial field and that some sectors would lack funding, the government chose to implement a second institution for the quest of truth and justice. No doubt, Sierra Leone was acutely aware that the prolonged division within the population and the feeling of fear, frustration and injustice would bring nothing positive to its future. For Sierra Leone, the resolution of the conflict had no cost. In the end, it is after all a matter of priorities, of which choices to make. I think that Sierra Leone did choose correctly. Lebanon should, for its own sake, take inspiration from Sierra Leone and not be stopped by the existence of the STL. Indeed, judicial apparel was established in Lebanon. However, when it comes to its efficiency, criticisms are being made. Hence the urgency to find some solutions and suggest a complement to its work.

Then, why not base the Lebanese example on the Sierra Leone case? After all, they both have special courts and Sierra Leone still established a TRC despite the existence of a tribunal similar to the STL. Vargas claims that both institutions, i.e. the SCSL and the TRC,   “were created to address, in their own particular way, the same events, and are functioning at the same time. At the end, what it is meant is to answer if this transition process can lead to both: peace and justice.”[17] In addition, Lebanon can get inspired by the process in Sierra Leone where the TRC launched a “sensitization phase” of its program and work in 2002. Again, there is plenty of room for improvement of the STL’s outreach.

Each situation is unique and different. Therefore, I think that it is essential to first identify the challenges and issues, and then proceed with the best solutions fitting this and only this situation. The application of an ICT everywhere is not the answer, and the Lebanese example is the proof. It is important to include the work of not only psychologists, but sociologists and political scientists (in order to understand the sensitive issues in the region) to have a holistic approach and a vision as a whole. Indeed, if only jurists are involved in a process as huge as peace-building and reconciliation, no wonder the system is not working, as law and justice represent a part of the process. Maybe the most vivid example of such a mistake was in Iraq.[18]

CONCLUSION

There are quite a few unsolved issues with regards to the STL in Lebanon. Impunity and justice are still ongoing every day that passes by in which nothing is done to put a halt to them. It seems that Lebanon itself is unable to cure its own wounds, but this country managed to put its ego to one side and bluntly reached out to the international community for help. Thus, it is now the international community’s duty to provide relief in solidarity to the Lebanese population. The Lebanese population plays such a central role in the weight given to any political decision that this is why focus has to be made on the outreach of the STL. The STL needs the population’s support in order to fully complete its mandate. Therefore, its acceptance by the Lebanese is key.

Also, it is essential to keep in mind that the consequences of this tribunal are not limited merely to the legal field, but also apply to every aspect of Lebanese life. Indeed, if there is so much controversy around the STL, it is not because jurists are debating it all over the world. It is because its symbol has repercussions and meaning for everyone, not only in Lebanon, but also beyond Lebanese borders. It instills fear because it is the living proof that justice can be enforced by the SC in any situation, even for only one death. And then looms another fear: what kind of justice is that? Such darkness and misunderstanding generate violent reactions and understandable concerns. It is now up to the STL to face these fears, and I propose that it does so through its outreach and, why not, through a coordinated TRC? However, a TRC may not be the most appropriate option, and therefore further analysis of other forms of mechanisms is needed. No matter what form that mechanism would take, the key word is ownership, as without it any type of institution will fail in its task to make the population connect with the tribunal.

There is something more to be done in Lebanon. For the reasons exposed throughout this research paper, I think the establishment of a TRC that would complement and support the STL’s work is a viable idea. Hence, this eventuality could be explored by experts of transitional justice. To anticipate the Lebanese expectations and reactions, a referendum among the population could serve as a barometer of the reception of such an idea. Now is the time to put into full action the machinery of justice and to put all the chances on the tribunal’s side for the STL to work efficiently. As the former Prosecutor of the ICC Luis Moreno Ocampo states, “silence has never helped or protected victims. Silence only helps the criminals.”[19] Therefore, it is about time that the STL’s silence on the suffering of the Lebanese population ceases, and that finally a mechanism such as a TRC echoes the unheard victims’ voices.


[1] The author is a graduate of the UNICRI 2012, LLM program in International Crime and Justice. You can email the author for more information: sevane.tadevossian@gmail.com

[2] Corm, Georges, “Le Liban contemporain, Histoire et société”, p.302

[3] Corm, Georges, “Le Liban contemporain, Histoire et société”, p.27

[4] The Agreement between the UN and the government of Lebanon for the establishment of the Special Tribunal for Lebanon (in the « Annex » section of this paper)

[5] See interview with Fatima Sara, Elias Mirza and O. and Iloubnan.com, « Le Tribunal Spécial, un instrument pour susciter les tensions à l’intérieur du Liban », posted on http://www.iloubnan.info/politique/interview/id/48016/titre/Le-Tribunal-sp%C3%A9cial,-un-instrument-pour-susciter-les-tensions-%C3%A0-l-int%C3%A9rieur-du-Liban

[6] See interview with O. and Wierda, M., Nassar, H., Maalouf, L., “Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon” in Journal of International Criminal Justice, pp.1066

[8] See Corm, Georges, « Le Liban contemporain, Histoire et société » et « L’Europe et l’Orient, De la balkanisation à la libanisation, Histoire d’une modernité inaccomplie »

[9] Wierda, M., Nassar, H., Maalouf, L., “Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon” in Journal of International Criminal Justice, pp.1074

[10] See “Extracts” §2

[11] Hazan, Pierre, “Truth-Seeking and Justice in Lebanon and its Repercussion on the Conflict” in Expert Paper “Workshop 9 – Justice Mechanisms and the Question of Legitimacy: Concepts and Challenges”, p.5

[12] Vargas Juarez, Raúl, “The relationship between the Special Court and the Truth and Reconciliation Commission in Sierra Leone : issues of transitional justice”, p.23; see also Romano, Cesare P.R., Nollkaemper André, Kleffner Jann K., “Internationalized criminal courts and tribunals : Sierra Leone, East Timor, Kosovo, and Cambodia”

[13] Truth and Reconciliation Act (2000), section 2 (b)

[14] Vargas Juarez, Raúl, “The relationship between the Special Court and the Truth and Reconciliation Commission in Sierra Leone : issues of transitional justice”, p.25

[15] Human Rights Watch, “La commission marocaine de vérité : Le devoir de mémoire honoré à une époque incertaine”, p.2

[16] See section  « A mandate of selective justice » of this research paper, p.9

[17] Vargas Juarez, Raúl, “The relationship between the Special Court and the Truth and Reconciliation Commission in Sierra Leone : issues of transitional justice”, p.2

[18] Hazan, Pierre, « La paix contre la justice ? », p.124

[19] DVD “The Reckoning, the Battle for the International Criminal Court” de Pamela Yates (2009)

Danger on the High Seas: Piracy in the Modern Setting and its impact on the Phillipines

Written by: Ruben Ayson[1]

Maritime piracy is a growing global issue today. Eugene Kontorovich of the Northwestern University Law School has characterized modern piracy as an “epidemic.”[2] Until two decades ago, piracy was not seen any more as a menace to international shipping. It has unfortunately come back to haunt us, this time not as the pirates of days past but equally in a very violent way, using modern means and methods to the extent that it has become today a major source of concern for crews, ship-owners, insurers, coastal communities and concerned international organizations. The new face of this historic crime exacts worldwide human and financial costs, and poses an existential challenge to the piracy laws developed throughout the centuries. As with ancient civilizations fighting for survival against the pirate scourge,[3] the proliferation of piracy today poses drastic economic and security threats to many nations.

Piracy today includes new tactics employed to carry out a crime predating recorded history. Speedboats and automatic rifles, rather than frigates and swords, recently became the pirate’s weapons of choice.[4] While looting cargo or stealing ships outright remain standard practice, Somali pirates today also kidnap sailors for ransom.[5]

The modern pirate is different from his historical counterpart in many ways. Modern pirates have adapted to the globalized world in terms technical, political, economic, and social developments. In truth, “today’s pirates are considerably more sophisticated than their counterparts of yesteryear.”[6] Today’s pirates make use of the modern technologies that are available to them. They strategically plan each attack with the help of publicly available information about their target. They “often carry satellite phones, global positioning systems, automatic weapons, [and] antitank missiles.”[7] Some pirates now hijack “mother ships,”[8] which they use as bases from which to launch attacks against other vessels up to more than 1,000 miles from shore using “rocket-propelled grenade[s], ladders and extra barrels of fuel.”[9] The use of modern methods and technology has shifted the character of piracy making them precise and effective operations rather than acts which happen by chance. Therefore, the new face of piracy requires more modern means for combating it.

The shipping industry has long been considered one of the most dangerous in the world. Recently, however, piracy has risen up in the list of menaces faced by seamen.[10] According to the January 31, 2012 figures of the worldwide piracy center of the International Maritime Bureau (IMB), Somali pirates are currently holding captive 10 vessels and 159 hostages.[11] One hundred and two incidents of piracy and armed robbery have been reported to the IMB Piracy Reporting Centre (PRC) in the first quarter of 2012.[12] Eleven vessels were hijacked with 212 crew members taken hostage and four crew killed. A further 45 vessels were boarded, with 32 attempted attacks and 14 vessels fired upon – the latter all attributed to either Somali or Nigerian pirates.[13]

These pirates have a great effect on the world economy and trade. Hundreds of seafarers have been held hostage and forced to suffer physical and mental ill-treatment.[14] The Philippine Coast Guard has said that for the last few years, there were already 5,000 ships worldwide attacked by pirates and more than 1,000 seafarers, including Filipinos, have been taken as hostages, or used as human shields against rescuing government and military forces.[15]

This is a very serious problem, and more so for a country like the Philippines. The Philippines, an archipelago, relies heavily on the shipping industry. The Maritime Industry Authority (MARINA) of the Philippines said the country has 140 ships on the international register, and about 90 percent of these ships pass through the pirate hotspots of the Indian Ocean, Gulf of Somalia and Aden.[16]

Another facet of the issue pertains to the deployment a large number of Filipino seamen in the worldwide maritime industry. Figures from the Philippine Overseas Employment Administration show that in 2010, the Philippines deployed 347,000 shipboard personnel, around 5.06 percent higher than in 2009.[17] Despite the increasing risks of piracy, there does not seem to be any shortage of Filipinos wanting to apply for a job in the maritime industry.[18] Based on the projections of the Philippine manning industry, a record number of 400,000 Filipino seafarers will have been deployed worldwide by the end of 2011 despite the crisis in Europe.[19]

This large amount of Filipino seamen deployed can be explained from an economic standpoint. Filipino seafarers, who are better paid than other overseas Filipino workers, send higher than average remittances. In 2007, seafarers sent home $2.2 billion, about 15 percent of the $14.5-billion total remittances from Filipino workers overseas. That is comparatively huge since they make up only three percent of the 8.7 million Filipinos working and living abroad.[20] MARINA said with the Filipino seafarers raking in more than US$3.8 billion in revenue for the country in 2010 and more this year, the threats of piracy need urgent interventions from stakeholders.[21]

Filipino seafarers, comprising one-third of the world’s seafarers or numbering some 300,000, are among the most exposed to risks in the shipping world.[22] With the Philippines providing a large number of seafarers in the world, their vulnerability to piracy is high.[23]A third of all the world’s seafarers are from the Philippines, so it is not surprising that there is another less welcome statistic – in the past year, more Filipinos have been taken hostage than any other nationality.[24] The statistics prove to be staggering and grim. One Filipino shipping crewmember has been taken hostage every six hours somewhere in the world, according to an official running count by the Department of Foreign Affairs (DFA) of the Philippines.[25] Every time there’s a report of a ship hijacked off the coast of Somalia, almost always there’s a Filipino involved.[26] Since 2006 470 Filipinos have died at the hands of pirates.[27]Out of some 400,000 Filipino seafarers, who make up a quarter of the world’s seagoing workforce, 769 were captured between 2006 and 2011.[28] Filipinos are not being particularly singled out by the pirates, it is just that so many people from the Philippines work in the maritime industry.[29] It is because of this that the Philippines has a great interest in ensuring the safety of its seamen and in the measures, both legal and remedial, for preventing and prosecuting piracy.

Piracy significantly affects modern day society as it causes great damage and loss to world trade and economy. Pirates have acted boldly and without fear as they take advantage of the state’s and international community’s inaction. With many of the world’s goods, especially necessities like oil and fuel, passing through sea lanes, the threat of piracy simply cannot be ignored. It persists as a modern day menace due to a number of factors, primary of which is the difficulty to catch pirates as they can easily escape detection and capture in the vast oceans of the world. Many countries, even the big naval powers, do not have the resources to constantly monitor every square mile of water. Ultimately from the practical point of view piracy will be lessened if there is greater political will to stop it and if there is better coordination and cooperation between states that are affected by it.

But that is only one aspect of the problem. Effective laws and procedures, and their strict enforcement, will go a long way in eradicating piracy. But as it is, the existing legal framework proves to be an insufficient mechanism to alleviate the problem. International laws and treaties have not been fully implemented and are too fragmented. Also, while piracy is covered by universal jurisdiction, there is a seeming lack of cases prosecuted, as states have found it to be too burdensome to proceed with cases which entail additional cost and effort on the part of those who have apprehended or are in custody of pirates.

There must be a concerted attempt on the part of states to improve the existing legal framework on piracy as well as ensure that these improved laws are enforced. The establishment of an international tribunal on piracy will be a very important stride as this will provide a proper venue where affected parties will be able to seek redress. No longer must pirates be able to roam the seas with impunity and evade the long arms of the law. They must be brought before the courts of law, and justice must be meted out against them so that they will realize that they are not above the law. And having such a tribunal will show to modern pirates that the international community is united and is serious is combating piracy.

[1] Ruben S. Ayson Jr., a lawyer from the Philippines and currently works for the government of the Republic of the Philippines as an Associate Solicitor in the Office of the Solicitor General. He can be contacted for further information at: sir.ayson@gmail.com

[2] Eugene Kontorovich, “A Guantanamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists, 98 Cal. L. Rev. 243, 243 (2010)

[3] Pirates plagued the coasts of ancient Greece. Sandholtz & Stiles, supra note 3, at 32; Jesus, supra note 3, at 364.

[4] Joshua Michael Goodwin, Note, Universal Jurisdiction and the Pirate: Time for an Old Couple to Part, 39 Vand. J. Transnaional. L. 973, 982 (2006).

[5] Jeffrey Gettleman, Pirates Tell Their Side: They Want Only Money, N.Y. TIMES, Oct. 1, 2008, at A1, available at 2008 WLNR 18637664.

[6] Michael H. Passman, Protections Afforded to Captured Pirates Under the Law of War and International Law, 33 Tul. Mar. L. J. 1, 6 (2008).

[7] Jack A. Gottschalk et al., Jolly Roger with an uzi: The rise and threat of modern piracy 22 (U.S. Naval Institute Press, 2000).

[8] See the International Chamber of Commerce’s Commercial Crime Service website, which maintains a section on Piracy Prone Areas and Warnings, and which is available at http://www.iccccs. org/home/piracy-reporting-centre/prone-areas-and-warnings. As of April 2010, the website warned that Somalis hijack ocean going fishing vessels for piracy operations, using these as mother ships from which to launch smaller boats to attack other vessels.

[9] Joshua Michael Goodwin, Note, Universal Jurisdiction and the Pirate: Time for an Old Couple to Part, 39 Vand. J. Transnaional. L. 973, 982 (2006).

[10] Every 6 hours, pirates seize a Filipino seaman http://pcij.org/stories/every-6-hours-pirates-seize-a-filipino-seaman/, (last visited June 28, 2012)

[11] Anti-piracy group: In last 5 years, 65 seafarers died of torture, disease http://www.filipinosabroad.com/ofw-news/anti-piracy-group-5-years-65-seafarers-died-torture-disease.html, (last visited June 28, 2012)

[12]ICC- IMB Piracy and Armed Robbery Against Ships Report – First Quarter 2012

[13] Ibid.

[14] Supra, note 10.

[15]Threats of piracy beset maritime industry, Filipino seafarers http://www.filipinosabroad.com/ofw-news/threats-piracy-beset-maritime-industry-filipino-seafarers.html, (last visited June 28, 2012)

[16] supra, note 13.

[17] Record number of Pinoy seafarers deployed in 2011, http://www.filipinosabroad.com/ofw-news/record-number-pinoy-seafarers-deployed-2011.html, (last visited June 28, 2012)

[18] Somali piracy takes heavy toll on Philippine sailors, http://www.bbc.co.uk/news/world-asia-pacific-15259042, (last visited June 28, 2012)

[19] Supra, note 16.

[20] Every 6 hours, pirates seize a Filipino seaman http://pcij.org/stories/every-6-hours-pirates-seize-a-filipino-seaman/, (last visited June 28, 2012).

[21] Threats of piracy beset maritime industry, Filipino seafarers http://www.filipinosabroad.com/ofw-news/threats-piracy-beset-maritime-industry-filipino-seafarers.html, (last visited June 28, 2012).

[22] PHL can be model for maritime best management practices to deter piracy, http://www.mb.com.ph/node/300768/phl-can-be-model-maritime-be

[23] Ibid.

[24] supra, note 18.

[25] supra, note 19.

[26] supra, note 18.

[27] Anti-piracy group: In last 5 years, 65 seafarers died of torture, disease http://www.filipinosabroad.com/ofw-news/anti-piracy-group-5-years-65-seafarers-died-torture-disease.html, (last visited June 28, 2012).

[28] Ibid.

[29] Somali piracy takes heavy toll on Philippine sailors, http://www.bbc.co.uk/news/world-asia-pacific-15259042, (last visited June 28, 2012).