international criminal law Archives

Verdict upheld against former president in Suriname (Part II)

30 January 20241 February 2024 0 min read

On 20 December 2023, Suriname’s highest court of appeal, the Hof van Justitie 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 history of Suriname. In this article, which forms the second of two parts, Jeff Handmaker explains how the trial has been accompanied by a great deal of political drama and legal manipulations, but also judicial courage and perseverance by the victims of what has been referred to as the 1982 December Murders.

Desi_Bouterse_(cropped2) — Imabe by We El at Dutch Wikipedia

Procedural delays

Back in 2012, there were hopes among many colleagues, including myself as a trial observer for the International Commission of Jurists (ICJ) who supported the trial observation mission, that the Court would issue a definitive judgement on the constitutionality of the Amnesty Law (or not). This proved to be too optimistic. The process was hampered by further delays, most of which were triggered by the accused’s defence counsel raising procedural obstacles in lieu of substantive arguments, each of which demanded a decision by the Court and hence served to undermine the rule of law.

The ICJ responded by issuing a press release in 2013 outlining concerns over how ‘unacceptable’ the delays were, and in particular how delays caused great uncertainty. Eventually, the Court concluded on 9 June 2016 that the Amnesty Law was unconstitutional and therefore the trial ought to resume. President Bouterse responded shortly afterwards with an Executive Order determining the trial to be a threat against the country’s national security (with specific reference to economic grounds) and ordered the prosecutor to halt their efforts. Rather than stopping the trial entirely, this merely served as a further source of delay. In the meantime, the Inter-American Commission on Human Rights expressed its ‘deep concern’ about persistent delays in the resumption of the trial.

After another four years of procedural obstacles, the ICJ eventually issued a second report and statement on 8 May 2017 on the ‘Importance of Resuming the Trial Without Undue Delay’. In this report, the ICJ emphasised how ‘justice delayed is justice denied’. The ICJ did not engage in the substance of the allegations against Bouterse and his co-accused, but instead focussed on two issues. Firstly, the ICJ’s statement focussed on the context in which the trial was taking place, in particular the social and political climate which included statements by Bouterse that those who had opposed the Amnesty Law were ‘enemies of the people’. Secondly, the statement presented arguments drawing on international law that emphasised the need for a fair and speedy trial and an effective remedy for victims of human rights violations.

After a further round of further delays, including illness by one of the judges, the trial eventually resumed on the merits, in other words the substantive nature of the atrocity crimes that Bouterse and others were charged with.

Judgement and sentence for atrocity crimes

The Court issued a judgement on 29 November 2019. To the surprise of many, the Court found Bouterse and several of the accused (though not all) to be guilty of atrocity crimes. Bouterse was sentenced to a prison term of twenty years. However, in a noticeable exception to criminal procedure, the court did not order an arrest warrant to be issued.

Unable to send a follow-up, in-person trial observation mission, the ICJ issued a press statement, both in English and in Dutch, calling ‘on all parties to respect the rule of law and to allow the legal system to run its course, in accordance with international fair trial standards, without further delays, threats or other forms of executive interference’.

Bouterse’s lawyers decided to appeal both the conviction and sentence and a new trial resumed in the country’s appeals court. Six months later, in July 2020, Bouterse stepped down as President of Suriname after his political party lost the election to the opposition party, led by Chandrikapersad Santokhi.

Appeal

In October 2020, the ICJ once again expressed its concern and gave new impulse to its trial observation mission by announcing a new trial observer, the former Attorney-General of Belize and senior barrister, Godfrey Smith, SC. Physical attendance was impossible at this stage due to Covid-related lockdown regulations.

Despite his inability his inability to attend in person, Smith continued to monitor the trial from afar, emphasising, in September 2021, how important it was that the trial proceed ‘without delay, ensuring due impartiality, independence and fairness to all concerned in the interests of the victims, the accused and the rule of law’.

Historic judgement on 20 December 2023

After 15 years, anticipation that Suriname Appeals Court would issue a final judgement was high. On this occasion, the ICJ decided to again send another, experienced in-person trial observer, Reed Brody, one of the Commissioners of the ICJ and a veteran human rights lawyer who had been involved in cases against previous heads of state, including: Augusto Pinochet of Chile, Hissène Habré of Chad and Jean-Claude Duvalier of Haiti, among others.

The decision of the Appeals Court on 20 December 2023 to confirm the conviction and twenty-year prison sentence of Bouterse was again not accompanied by an arrest warrant. While in the first instance this was regarded as understandable given the likelihood that Bouterse would appeal (along with his significant public profile). In the second instance, especially the legal justification was less clear, and while Bouterse did not, as a last resort, apply for the final domestic remedy available, which was to seek a pardon from President Santokhi, he did submit a last-ditch appeal to the prosecutor, with new lawyers, to avoid being arrested (which was unsuccessful).

At the time of writing, the Court eventually issued an order that those accused of crimes were expected to report to the prison in Paramaribo. Some of the accused honoured this. Former president Bouterse did not and there remains a great deal of speculation where he may be.

Irrespective of this, the judgement of the Appeals Court in Suriname can be regarded historic. As Brody confirmed:

Today’s decision is a victory for the families of Bouterse’s victims, who never gave up, and for all those around the world seeking to bring powerful abusers to justice. It should serve as another reminder that accountability for the most serious crimes has no expiration date.

Read the first part of the blog: https://wp.me/p9fvbD-76v

Image by We El at Dutch Wikipedia: https://creativecommons.org/licenses/by-sa/4.0/deed.en

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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Monitoring an atrocity crimes trial in Suriname (Part I)

30 January 2024 0 min read

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.

640px-Demonstranten_op_weg_naar_de_ambassade,_Bestanddeelnr_932-4356 — 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.

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When should you ‘Call It What It Is’? Enabling disclosure of sexual violence by Chris Dolan and Onen David

13 February 202016 May 2020 6 min read

The international criminal law (ICL) system can only hear and describe a tiny fraction of what people experience, particularly when it comes to sexual violence. The ICL system not only makes it difficult for victims to disclose their experiences, but often misplaces, deprioritises and erases the sexual elements of violence under other headings such as ‘torture’ and ‘inhumane treatment’. This is what inspired ‘Call It What It Is’, a campaign designed to enable victims to freely testify in a system where sexual violence is better articulated.

Back in 2009, when the Refugee Law Project at Makerere University in Uganda ran its first-ever workshop for male refugees on the topic of sexual and gender-based violence (SGBV), a male Congolese workshop participant commented at the close of the day that ‘it has happened to all of us’, referring to having been subjected to conflict-related sexual violence. Similarly, a Somali participant reported that ‘if it happened to me, I would have to commit suicide’.

Their use of the word ‘it’, and their assumption that we (as social workers and refugee rights advocates) would somehow understand which of the many forms that ‘it’ (sexual violence) can take they had experienced, epitomises the yawning gap between people’s lived experiences, how they talk about those experiences, and definitions and the language available in legal systems intended to bring justice to victims. At present, the international criminal law (ICL) system for prosecuting perpetrators specifies only a handful of the multiple forms that sexual violence can take. The Rome Statute of the International Criminal Court refers to “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity”[1].

It is the need to specify further the forms that might be considered under the catch-all “any other form of sexual violence of comparable gravity” that gave rise to the ‘Call It What It Is’ campaign, launched in 2019 by The Hague-based Women’s Initiatives for Gender Justice. The key premise of the campaign is that, if survivors of SGBV are to get the support they need, it is imperative to call and describe a range of forms of violence as ‘sexual’. Second, and related to the first, for each victim/survivor, it is important to be able to name which of the numerous possible forms of sexual violence they have actually experienced. This is in order to allow correspondingly informed and appropriate responses that consciously sidestep the hierarchy of forms of sexual violence. Assumptions that rape is both the most important and most prevalent form of sexual violence are reflected in legal frameworks and service providers alike and are at the heart of this hierarchy.

The campaign is catalysed and coordinated by the Women’s Initiatives for Gender Justice, with varied contributions from more than 500 survivors. The collection of these was supported by dozens of organisations, including the Refugee Law Project which ran focus-group discussions. The campaign is raising the definitional bar for international criminal lawyers in general and the International Criminal Court in particular. The Civil Society Declaration developed as part of the campaign gives survivors and allies a new tool to deploy in the search for justice, calls for an end to impunity of perpetrators and an end to the inaction that is characteristic of many self-styled ‘responders’ in the fields of sexual violence.

Calling ‘it’ what it is cannot be a politically neutral process, however, and this raises particular challenges for institutions. ‘Rape’ as a ‘weapon of war’, laden as it is with a range of unevidenced assumptions about prevalence and gendered distribution of harms, is not an adequate descriptor of the complex universe of sexual harms that people, whether male, female, or gender non-conforming, experience in conflict settings. Establishing a more comprehensive understanding also demands a corresponding diversification of medical, psychosocial and legal services for the survivors and use of broader terminology to encompass ‘sexual violence [rather than only rape] as a weapon of war’.

The Refugee Law Project’s experience is that this diversification is possible. Back in 2009, no individual male refugee whom we were working with would identify himself in public as a survivor of conflict-related sexual violence. Ten years later, the male survivor support group Men of Hope was able to pull together 310 male refugee survivors in Kampala alone for the International Day for the Elimination of Sexual Violence in Conflict. Just two months earlier, their leader, Mr Aimé Moninga, addressed the UN Trust Fund for Victims of Torture in Geneva.

These successes have also taught us a lot about when not to call it what it is. The ‘When’, ‘Where’, ‘Who’ and even ‘Why’ of enabling disclosure of sexual violence—of making it possible for survivors accurately to call it what it is—has to be viewed as a complex process. Disclosure cannot be scripted or predicted. For some, the ‘When’ may be months after the incident. For others, it may take decades. For very few will it be within the 72 hours that Post-Exposure Prophylaxis demands to try and prevent the transmission of HIV.

The ‘Where’ of disclosure can also be a difficult choice: how do you balance the needs for access to support with the demands for privacy? In many refugee settlements in Uganda, for example, there are no spaces purpose-built to receive survivors needing help; meeting in a survivor’s home is rarely advisable as (s)he generally has not disclosed their exposure to SGBV to family members. Transporting a person to a supposedly neutral space, such as a hotel, carries further risks, as observers (which could include security forces or family members) are likely identify the vehicle and draw their own (sometimes dangerous) conclusions about what the survivor is doing sharing information with the institution associated with a particular vehicle.

‘Who’ should be asking such questions can be yet another conundrum when developing inclusive services for a broad spectrum of survivors. While it is often assumed that women wish to talk to women and men to men, it is rarely that simple. Ethnicity, age, prior reputation, or familiarity built through prior interactions can be even more important determinants of whether someone feels comfortable to talk to a particular person.

Last but not least, ‘Why’ would a person choose to ‘Call It What It Is’? Naming and disclosure are high-risk actions, the more so for people made vulnerable by their experiences and the context in which they seek to survive. In our work with forced migrants living in Uganda, the tangible benefits that make the biggest difference are the availability of high-quality medical referrals, treatment, and related psychosocial support. Without that, even after years of trust building, the risks that can arise from calling it what it is may continue to outweigh the benefits.

These considerations help us to see that, while for policy and law makers it is essential to start from a position of articulation, such as the Declaration, for survivors themselves, and for practitioners working to support them, calling it what it is may often be the end-point of a lengthy process.

[1] The Rome Statute of the International Criminal Court, Article 7.1 (g)

The ideas presented in this article were originally presented in the seminar “Call it what it is: when should we talk about conflict-related sexual violence?” at the ISS in cooperation with the Refugee Law Project.

About the authors:

Chris Dolan is Director of the Refugee Law Project and Visiting Professor at the Transitional Justice Institute and INCORE at Ulster University. Onen David manages the Gender & Sexuality Programme of the Refugee Law Project. They are both based in Kampala, Uganda. They can be contacted directly on dir@refugeelawproject.org and gender@refugeelawproject.org

Onen David is the Programme Manager of the Gender and Sexuality Programme of Refugee Law Project, Makerere University. He has ten years of experience in working with Persons with Special Needs, identifying and offering inclusive physical and psychosocial support to survivors of conflict-related violence. Subsequently, he has significantly contributed to national and international advocacy and training of Police, Military, Health workers, UN agencies, and Civil Society Organisation on inclusive response to and prevention of conflict-related sexual violence, and on the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict (First & Second Edition), including the annex on men and boys. Currently, Mr Onen is coordinating a Dutch funded project titled “Securing Refugee-Host Relations in northern Uganda through Enhanced Protection” .

Tag Archives international criminal law