Tag Archives international court of justice

Monitoring an atrocity crimes trial in Suriname (Part I)

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On 20 December 2023, the Hof van Justitie, Suriname’s highest court of appeal, issued a judgement confirming the conviction and twenty-year prison sentence of Desiré Delano Bouterse in what has been the longest criminal trial in the country’s history. In this article, which forms the first of two parts, Jeff Handmaker explains the background to the trial, and why the International Commission of Jurists started to actively monitor this trial since 2012.

Image by Antonisse, Marcel / Anefo (CC Zero)

The 1982 December Murders

What makes this trial unique and special is not only the severity and nature of the crimes being charged, but the fact that the principal accused is a former head of state. The charges against Bouterse and other accused comprised atrocity crimes, including torture and extra-judicial executions of fifteen men, allegedly committed in 1982 under the leadership of then Sergeant Desi Bouterse during a military coup that allegedly also included the complicity of the Dutch government.

According to Amnesty International, which has been following the case already since 1982, the killings were ‘never properly investigated’. This understanding aligned with other human rights organisations, including the Netherlands Lawyers Committee for Human Rights (NJCM) which released a report on 14 February 1983, and the International Commission of Jurists (ICJ) which conducted a mission and issued a report on 4 March 1983.

While the opportunities for seeking justice at the time were virtually non-existent, the events of December 1982 have certainly not been forgotten. In particular, the victims’ families of those men who lost their lives have refused to remain silent and remained committed in securing redress. Their advocacy was accompanied by a growing academic scholarship on atrocity crimes, including by Suriname jurist Gaetano Best, who later completed an (unrelated) doctoral thesis in 2016 at the University of Amsterdam on ‘Fair and Accurate Fact-Finding in Dutch Atrocity Crimes Cases‘ and subsequently returned to practice law in Suriname, which later also included frequent commentary on the Bouterse trial.

 

The trial begins

On November 2007, in the midst of advocacy by the victims of those killed in December 1982, a trial was initiated against Bouterse and twenty-four other individuals, including sitting government officials. The court was located on a naval base in Boxel just outside the capital city of Paramaribo, and comprised two chambers: a civilian chamber (criminal court) and a military chamber (court-martial) each with a three-judge panel. Both chambers had the same, highly experienced judge-president, Justice Cynthia Valstein-Montnor.

Three years later, Bouterse was elected as president of Suriname. Remarkably, the trial continued, largely unhindered by these developments. Eventually, the Suriname parliament passed an Amnesty Law in 2012 that aimed to extend immunity for prosecution to Bouterse and other co-accused. Emboldened by this, Bouterse’s lawyers argued that the prosecutor had no authority to purse the charges against him.

After five years of delays, and little tangible progress in the trial on its merits, doubts began to emerge as to whether the Court had the capacity to consider this matter in a free, impartial and objective manner.

 

ICJ trial observation

Confronted with persistent delays as well as some reports of intimidation against journalists, court officials and the public prosecutor, the ICJ, as one of the largest and most established human rights organizations in the world based in Geneva, decided to launch a trial observation mission. This was in anticipation of a judgement that the Court was due to issue in May 2012.

The ICJ’s first, in-person trial observation mission took place from 8 – 12 May 2012. As a British lawyer, with some years of experience teaching post-graduate students in the country and with a knowledge of Dutch (the official language of Suriname), I was asked to lead the mission. This comprised a combination of tasks, set-out in a trial observation manual that the ICJ had produced earlier, which drew on the experiences of earlier ICJ trial observation missions. This included meeting with officials, making clear to all actors that they were under scrutiny, collecting findings about the context in which the trial was being held in order to ensure compliance with international due process requirements, issuing press releases, speaking to the media and of course issuing a report.

 

Court’s first Judgement in 2012

The occasion of an in-person mission in May 2012 was to attend the trial itself and to speak with various key stakeholders to get a sense on whether international standards of due process were being respected. Based on its findings and a comprehensive analysis of both Suriname law and international law, the conclusions that we drew in the report were fourfold. First, while the Government of Suriname had co-operated fully with the trial observation mission and did not hinder the work of the mission, the court had not yet clearly decided on the implications of the Amnesty Law. Second, there appeared to be space for a fair trial in Suriname, although continued procedural delays raised questions about this. Third, the role of a free, professional and independent media was seen to be crucial. And finally, public interest in the trial from diplomatic missions, as well as international organizations, promoted greater visibility of the outcome and integrity of the process.

In other words, while there was no overt effort to subvert the rule of law by force, even by Bouterse, as both the sitting President of the country and the principal accused, the main legal issue at stake had not been conclusively established. This was namely: whether (1) the passing of an Amnesty Law was valid, which implied that the trial ought to be stopped altogether or alternatively, (2) the Amnesty Law was not consistent with the constitution and therefore the trial should proceed.

As discussed in Part II, the next stage in this legal drama proved to be both eventful and for us as trial observers, very frustrating.

Read the Second part of this blog: https://wp.me/p9fvbD-76E

Image by Antonisse, Marcel / Anefo (CC Zero): https://commons.wikimedia.org/w/index.php?search=december+moorden+suriname&title=Special:MediaSearch&go=Go&type=image

Opinions expressed in Bliss posts reflect solely the views of the author of the post in question.

About the author:

Dr. Jeff Handmaker is Associate Professor of Legal Sociology at the International Institute of Social Studies of Erasmus University Rotterdam and has published widely on topics concerning Israel’s decades-long impasse with the Palestinians. He conducts research on legal mobilization.

 

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Holding Myanmar accountable for acts of genocide is just the start of a long process of justice for the Rohingya by Lize Swartz

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Public hearings are currently underway at the International Court of Justice in The Hague, where Myanmar stands accused of committing genocide against the Rohingya minority after violent crackdowns since 2012 left thousands dead and forced more than one million Rohingya to flee the country. This follows shortly after the Minister of Justice of The Gambia at the International Conclave on Justice and Accountability for Rohingya held at the ISS in October declared that what has transpired in Myanmar over the past years must be named genocide and that The Gambia would lead efforts to hold the Myanmar state accountable through international legal mechanisms. However, this is just the first of several steps to ensure justice for the Rohingya—the human side of what has become a ‘refugee crisis’ needs to be acknowledged, writes Lize Swartz.

The desire to hold perpetrators accountable for crimes committed against the Rohingya[1], to improve the living conditions and well-being of Rohingya refugees[2], and to ensure their eventual safe return to Myanmar was unanimously expressed at the recent International Conclave on Justice and Accountability for Rohingya. At the conclave, a number of high-level dignitaries and specialists working on justice for the Rohingya at both the international and local level came together at the ISS in October this year to discuss key short-, medium- and long-term objectives in ensuring the eventual safe return of the Rohingya to Myanmar and ways in which to reach them.

His Excellency Abubacarr Marie Tambedou, Minister of Justice of The Gambia, at the conclave declared to a sizeable audience that The Gambia would lead the process of holding the Myanmar state accountable—a declaration that was enthusiastically welcomed by attendees as an important first step in ensuring justice for the Rohingya. The Gambia accordingly instituted proceedings [3] against Myanmar at the International Court of Justice, the principal judiciary organ of the United Nations, in November this year. Laetitia van den Assum, an independent diplomatic expert who was previously part of the Advisory Commission on Rakhine State and who also attended the conclave[4], told a Dutch news website that The Gambia had launched the application because the UN Security Council due to resistance from Russia and China had not undertaken any action in this regard over the past few years.

While the declaration of genocide and the filing of the recent application are steps in the right direction, the complexity of processes of ensuring justice and accountability have not been sufficiently recognized at the conclave, where discussions focused on holding perpetrators accountable and returning Rohingya refugees to Myanmar under safe conditions. Bangladesh, who has assumed a leadership role in housing Rohingya refugees, was praised at the conclave for its hospitality, while representatives of Bangladesh highlighted the difficulties of housing almost a million refugees.

The discussions made me wonder whether the humanity of the Rohingya is sufficiently recognized by those working on ensuring justice for them. In particular, the Rohingya genocide has become a ‘refugee crisis’, gaining increasing attention due to the sheer numbers of refugees residing in host countries. This is transpiring while the Rohingya in fact have been victims of policies of exclusion and direct violence within Myanmar for over forty years. It seems that it is only now that the issue is receiving attention—but perhaps for the wrong reasons.

At the conclave, it became clear that the Rohingya were seen as temporary residents hosted by benevolent neighbouring countries. However, it became evident during the conclave that repatriation is not straightforward, as changes in national policies, laws and leadership in Myanmar are crucial for the creation of conditions of safety and security as a sustainable solution to the long-term crisis. Conference attendees agreed that without such conditions, the cycle of violence and exclusion is likely to repeat itself as it has done before.

While the proceedings against Myanmar at the ICJ are a first step, host countries and the international community all have to come to terms with the fact that the process of ensuring justice could span several decades and that ongoing collaborative effort is required for the entire duration of the process. It is important to recognize the human side of the ‘refugee crisis’ and to ensure that besides holding perpetrators accountable through formal international legal mechanisms, the well-being of the Rohingya should be prioritized now—whether they are temporary or permanent residents of host countries. The following things should be kept in mind:

Bangladesh and other host countries are now the Rohingya’s home, and they may remain so for many years to come.

When humans settle somewhere, they grow new roots that anchor them to a place. The international community may not want to recognize that the Rohingya has already grown roots in host countries and that they will continue to do so until their return to Myanmar, if they choose to return. It is crucial for host countries to accept that the Rohingya might not be going anywhere anytime soon and that their integration into host communities is crucial, whether temporarily or permanently. Host countries have already been generous in providing resources and a safe space for the Rohingya, but they now needs to direct their gaze towards the social dimensions of well-being among the Rohingya, including the creation of a sense of belonging and the creation of education and employment opportunities by doing the opposite that the Myanmar state has done—by acknowledging the Rohingya minority as part of their society and accepting them despite their origin or citizenship status. At the conclave it became clear that the lack of access to education was one of the most pressing problems facing the Rohingya.

The Rohingya should acquire an understanding of the process of change, not only in repatriation, but also in holding the perpetrators responsible.

Importantly, the Rohingya also need to understand that their return to Myanmar, even though desired by some of them, may not take place in the coming year or years, which will help them make long-term decisions about where they could settle. CSOs and local grassroots actors working with Rohingya on the ground can play a crucial role in helping the Rohingya understand why the cogs are turning slowly and why their return to Myanmar is being delayed. In addition, information on the proceedings and outcome of pending ICJ or ICC cases will play an important role in the Rohingya’s gauging of the level of safety and security of Myanmar and, therefore, in their willingness to return to Myanmar when it is possible.

The process of justice and accountability does not end when the Rohingya return to Myanmar – it only begins then.

The long-term objective of helping the Rohingya deal with trauma should be highlighted; this shows dedication to the cause of the Rohingya and not just to addressing the immediate refugee crisis. A Truth and Reconciliation Commission, which was discussed at the conclave, is effective not only in gathering evidence of crimes against humanity, but also in helping victims of crimes against humanity deal with trauma. The wounds that have been created over the last forty years will not heal instantly, but they can heal more effectively with the creation and efficient functioning of such mechanisms and institutions that facilitate dialogue and interaction among all ethnic groups in Myanmar.

[1] Following violent crackdowns on the Rohingya starting in 2012, more than one million Rohingya have fled Myanmar, many to neighbouring country Bangladesh.

[2] At present, Cox’s Bazar near the Bangladesh-Myanmar border houses more than 700,000 Rohingya refugees in what has become a massive slum.

[3] According to ICJ Press Release No. 2019/47, available at https://www.icj-cij.org/en/case/178, The Gambia alleged “violations of the Convention on the Prevention and Punishment of the Crime of Genocide (the ‘Genocide Convention’) through ‘acts adopted, taken and condoned by the Government of Myanmar against members of the Rohingya group’ ”.

Image Credit: Zlatica Hoke on Wikimedia

16177487_1348685531818526_4418355730312549822_oAbout the author:

Lize Swartz is a PhD researcher at the ISS working on the intersection of sustainability and climate crises and the influence of power on understandings of and responses to such crises. She was a conference reporter at the International Conclave on Justice and Accountability for Rohingya.