Mladic Trial Resumes After Summer Recess

The trial of Ratko Mladic resumed on August 21, 2012, following the ICTY summer recess.  The Court heard testimony from Aernout Van Lynden, a journalist who covered the war in Bosnia and Herzegovina.  Van Lynden spent time in Sarajevo and Pale during the war and met with both Mladic and Radovan Karadzic. 

Prior to the recess, testimony was heard from the following witnesses: Elvedin Pašić, who fled from his village after it was attacked by Bosnian Serb forces and was detained by Bosnian Serb soldiers; David Harland, a UN employee stationed in Bosnia and Herzegovina at the relevant time; Christina Schmitz, a nurse who worked for Doctors Without Borders in Srebrenica; Joseph Kingori, a UN military observer deployed to Srebrenica in 1995; a protected witness known as RM255, who was a survivor of the executions at the Branjevo Military Farm; and Eelco Koster, who was an officer of the Dutch Batallion stationed at Potočari .

ICC Issues First Reparations Decision

Trial Chamber I of the International Criminal Court has decided on the principles that are to apply for reparations for victims in the case against Thomas Lubanga Dyilo.  This is the first reparations decision by an ICC chamber.

Mr. Lubanga was found guilty of war crimes (conscripting and enlisting children under age 15 and using them to participate actively in hostilities).  He was sentenced to 14 years imprisonment. 

The Chamber stated: “Reparations in the present case must-to the extent achievable-relieve the suffering caused by these offences; afford justice to the victims by alleviating the consequences of the wrongful acts; deter future violations; and contribute to the effective reintegration of former child soldiers.”  In the Chamber’s view, the reparations should be applied in a broad and flexible manner, allowing the Chamber to approve the widest possible remedies for violations of the rights of victims and the means of implementation. 

The Chamber stated that its decision applied only to the case under consideration and was not intended to affect victims’ rights to reparations in other cases.

The Chamber affirmed that all victims must be treated “fairly and equally” with respect to reparations, regardless of whether they participated in trial proceedings, because it would be “inappropriate” to allow reparations only for the small number of victims who participated in the trial or applied for reparations.  The Chamber acknowledged that victims in particularly vulnerable situations might need to be given priority with respect to reparations.  Such victims may include victims of sexual or gender-based violence, individuals who require immediate medical care, and severely traumatized children.  The Court may adopt measures to guarantee equal, effective, and safe access to reparations for particularly vulnerable victims. 

The Chamber emphasized that individual reparations should be awarded in a way that avoids creating tensions and divisions within the affected communities.  It stated that, due to the considerable number of people affected and the small number who applied for reparations, there should be a collective approach that ensures reparations reach the victims who are unidentified.  Collective reparations, according to the Chamber, should address harm individuals suffered on an individual and collective basis.  The Chamber stated that the Court should consider providing medical services, along with assistance in the areas of general rehabilitation, housing, education, and training.  The Chamber further stated that the Court’s reparations strategy should, in part, aim to prevent future conflicts and raise awareness that the effective reintegration of children requires eradicating the victimization, stigmatization, and discrimination against young people in these circumstances.

The “damage, loss and injury,” which forms the basis of a reparations claim, must have resulted from the crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities.  The Chamber noted that neither the Statue nor the Rules define the precise requirements of the causal link between the crime and the relevant harm for the purposes of reparations.  The Chamber further noted that there is no settled view in international law on the approach to be taken to causation.  The Chamber concluded that reparations should not be limited to “direct” harm or the “immediate effects” of the crimes of enlisting and conscripting children under age 15 and using them to participate actively in hostilities; rather, the Court should apply the standard of “proximate cause.” 

With respect to the standard of proof, the Chamber concluded that a standard less exacting than “reasonable doubt” should apply.  The Chamber determined that the “balance of probabilities” standard was sufficient and proportionate to establish facts that are relevant to an order for reparations when it is directed against the convicted person.  When reparations are awarded from the resources of the TFV or from any other source, the Chamber concluded that a wholly flexible approach to determining factual matters is appropriate, taking into account the extensive and systematic nature of the crimes and the number of victims involved.

The Chamber decided that it was unnecessary for the present trial judges to remain seized throughout the reparations proceedings.  The reparations will be dealt with by the TFV, monitored and overseen by a differently composed chamber.

The Chamber strongly recommended retention of a multi-disciplinary team of experts to assist the Court in the following areas: assessing the harm suffered by the victims; assessing the effect of the crimes of enlisting and conscripting children under age 15 and using them to participate actively in hostilities on the children’s families and communities; identifying the most appropriate form of reparations, in close consultation with the victims and their communities; determining which individuals, bodies, groups, or communities who should be awarded reparations; and assessing the funds for these purposes.

As Mr. Lubanga was declared indigent and no property or assets were identified to use for reparations, Mr. Lubanga is only able to contribute non-monetary reparations.  Any participation in symbolic reparations (e.g., an apology) is only appropriate with Mr. Lubanga’s agreement, so such measures will not form part of a Court order.

Reparations are to be implemented through the resources of the Trust Fund for Victims (TFV).  Potential beneficiaries include victims (direct and indirect) who suffered harm following the crimes of enlisting, conscripting, and using children under age 15 to participate actively in hostilities in Ituri in the Democratic Republic of Congo (DRC) from September 1, 2002, to August 13, 2003.  This includes family members of direct victims, along with individuals who intervened to help the victims or to prevent the commission of the crimes and suffered harm as a result. 

The Chamber noted that, for the award to have effect, State Parties, including the DRC, and non-State Parties must cooperate and the TFV would need sufficient voluntary contributions for a meaningful and effective reparations program. 

ECHR Finds Government Failed to Meet Convention Responsibilities in Disappearance Case

The European Court of Human Rights found that Articles 2 (right to life), 3 (prohibition of inhuman and degrading treatment), 5 (right to liberty and security), and 13 (right to an effective remedy) had been violated in a case involving an individual who disappeared after being taken by Government agents.  Notably, the Court found that a more flexible approach was justified with respect to the six-month time limit for application to the Court (see Article 35) in the context of disappearance cases, not merely in the context of an international armed conflict (as the Court held in Varnava and Others v. Turkey), but also in the national context.

The applicants, Mr. Mehmet Er, Ms. Gülşen Er, Mr. İslam Er, Mr. Adnan Er, Mr. Hızır Er, Ms. Hatice Er, Ms. Belkısa Er, Mr. Ali Er, and Ms. Mumi Er, lodged an application against Turkey in the ECHR.  The first seven applicants are Ahmet Er’s children; the other two are his siblings.  The applicants alleged that Ahmet Er disappeared following detention by gendarmerie soldiers in circumstances engaging the responsibility of the State under Articles 2, 3, 5, and 13 of the Convention. 

  

On the day that Ahmet Er disappeared, Ali Er, Ahmet’s brother, informed the local prosecutor in writing that his brother had disappeared and the family feared for Ahmet’s life.  On July 16, 1995, the prosecutor indicated in a report that he had a telephone conversation with Major C.Y. of the Çukurca commando headquarters, the commanding officer of the soldiers who carried out the operation on July 14, 1995.  The major told the prosecutor that Ahmet Er was taken from his village to help with operations, then released on July 16, 1995 near Narlı village. 

On July 18, Ali Er stated in submissions to the prosecutor and the governor of Çukurca that Ahmet Er was not released and that he had tried to find his brother in nearby villages and towns.  The prosecutor opened an investigation into Ahmet’s disappearance and requested information from the Çukurca Gendarmerie Headquarters and Çukurca Commando Headquarters.  The prosecutor also reminded the military authorities that if Mr. Er was in their custody, they needed permission from the prosecutor’s office to detain him. 

Captain S.A.U., commander of the Çukurca Gendarmerie Headquarters, informed the prosecutor that Ahmet Er was not detained at his headquarters.  He said the village of Kurudere was evacuated for security reasons, so it was impossible to trace Ahmet Er.  The Çukurca Commando Headquarters failed to respond to the prosecutor’s request, so he made a second request, asking the headquarters to tell him exactly where Mr. Er was released and whether there were any eyewitnesses to the release.  On September 22, 1995, a military officer from the Çukurca Commando Headquarters wrote a letter to the prosecutor in which he stated that Ahmet Er and his “elderly relative” were taken to provide guidance for the soldiers, had helped the soldiers find landmines, and “left the soldiers at 3.00 p.m.” 

A prosecutor questioned Ali Er on October 16, 1995.  Ali said that Ahmet was taken from their village by soldiers, and the first lieutenant who was with the soldiers slapped his brother in front of the villagers.  After this, the villagers left the village, but Hacı Mehrap Er stayed behind to wait for Ahmet.  That evening, Ahmet returned to the village with the soldiers, very distraught.  The soldiers took Ahmet and Hacı Mehrap Er to Işıklı gendarmerie station, where they tied both men to a pole and left them overnight.  The two had also been beaten up.  Hacı Mehrap Er and two other villagers who were taken were released on the following morning.  According to Hacı Mehrap Er, Ahmet was unconscious when he left him.  Fettah Arslan, who was from their village, had seen Ahmet being taken from Işıklı station to the commando unit in a military vehicle. 

Fettah Arslan and Hacı Mehrap Er were asked to come to the prosecutor’s office.  Fettah Arslan told the prosecutor he saw Ahmet Er in a military vehicle in handcuffs.  Hacı Mehrap Er told the prosecutor that the villagers had been ordered to evacuate and were preparing to do so, but some PKK members heard about the evacuation and the soldiers’ presence in the village and attacked the soldiers.  During the melee, Ahmet Er wanted to leave the village and find his son, who was in the fields, but the soldiers misinterpreted his intentions and took him to the gendarmerie station, where Hacı Mehrap Er was later taken.  The two were tied to a pole, beaten up, and doused with hot water.  The bones in Ahmet’s feet were broken with a stone.  When Hacı Mehrap Er was released, Ahmet was being dragged on the ground by several soldiers.  Hacı Mehrap Er returned to the village, but the soldiers had burned it down. 

Major C.Y. told the prosecutor that he had heard that Ahmet Er was taken from the village to provide guidance about the area and that, after his telephone conversation with the prosecutor, he had ordered Ahmet Er’s release.  He said that he later found out that the person released was not Ahmet Er, and he did not know whether Ahmet Er had been taken away by his soldiers.

The prosecutor questioned First Lieutenant H.Ö., who was in command of one of the units that took part in the July 14 operation.  He said that, following the battle with the PKK, the soldiers saw Ahmet Er running from the village.  The soldiers who caught him “might have slapped him a few times” because they believed he had helped the PKK.  Then, according to the lieutenant, Ahmet Er helped them find landmines.  On the way, they encountered Hacı Mehrap Er, who asked to go with them.  They took the two men to the gendarmerie headquarters, where the lieutenant phoned his superior officers, who said they need not take the men to headquarters as there was no evidence against them.  They might have slapped the men but did not torture them, and they released the men the next day.  Other officers questioned by the prosecutor said that Ahmet Er might have joined the PKK. 

The prosecutor issued an instruction to find Ahmet Er and asked for a progress report every three months.  In his instruction, he stated that Ahmet had not been arrested by the soldiers but had been taken as a guide.  He also stated that, since two of Ahmet’s sons had joined the PKK, Ahmet might have done likewise. 

It appears from documents that the police and soldiers searched unsuccessfully for Ahmet and informed the prosecutor regularly. 

On May 3, 2002, Mehmet Er applied to the Hakkari Civil Court, stating that his father had disappeared on July 14, 1995, in life threatening circumstances and had not been heard from since.  He requested that the court issue a decree stating that his father was presumed dead.  The request was granted on May 29, 2003. 

The Çukurca prosecutor issued a decision on December 10, 2003, stating that, according to allegations and eyewitness accounts, Ahmet Er was last seen in a military area where he was “tortured by soldiers,” so the military prosecutor in the city of Van had jurisdiction.  The military prosecutor  requested information from the military units and questioned Ali Er and Hacı Mehrap Er.  The military units said that they had released Ahmet and he had gone to join the PKK in northern Iraq. 

The military prosecutor concluded that he did not have jurisdiction to investigate because military prosecutors could only investigate offenses committed by members of the military in the performance of their military duties, and the soldiers had been carrying out judicial rather than military functions when they took Ahmet to the barracks to question him.  The case was sent back to the Çukurca prosecutor’s office. 

The Çukurca prosecutor prepared a report on his investigation on December 15, 2005.  The report said that Ahmet had been taken away because he was acting suspiciously, then he helped the soldiers find landmines.  He stayed at the gendarmerie station and was released on July 16, 1995.  According to “secret investigations” by the gendarmes, Ahmet joined the PKK after he was released.  The Çukurca prosecutor’s office concluded that the Van prosecutor’s office had jurisdiction and transferred the case file accordingly. 

A Van prosecutor issued a search and arrest warrant for Ahmet Er on January 5, 2006, for membership in an illegal organization (the PKK).  The Çukurca gendarmerie later reported to the prosecutor that their efforts to locate Ahmet Er had been unsuccessful. 

Article 2

Article 2 of the Convention states:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

The Government argued that the applicants had failed to comply with the six-month time limit set forth in Article 35 § 1 of the Convention.  In the Government’s view, the applicants should have applied to the Court within six months of the Hakkari Civil Court’s decision, which resulted in a decree stating that Ahmet Er was presumed dead.  The Court rejected this argument, noting that the civil proceedings were initiated to deal with property matters and the custody of Ahmet’s three youngest children.  Furthermore, the Court noted that the obligation to account for a disappearance and prosecute perpetrators does not end with discovery of a body or presumption of death. 

Next, the Court examined whether the applicants could be criticized for waiting almost nine years after Ahmet Er’s disappearance before applying to the ECHR.  The Court noted that, according to case law on the six-month rule in cases concerning deprivation of life, if no remedies are available or if they are judged ineffective, the six-month time limit runs from the date of the act complained of.  The Court noted that “special considerations” may apply where an applicant first makes use of a domestic remedy and only later becomes aware of circumstances that make the remedy ineffective.  In such situations, the six-month period can be calculated from the time when the applicant became or should have become aware of these circumstances.

The Court noted that in most disappearances, the investigating authorities have little evidence to begin with and must search for it.  Additionally, unlike in a killing, where the authorities’ purpose is merely to establish the circumstances of the killing and find and punish the perpetrator, an investigation into a disappearance also aims to find the missing person or discover what happened to him or her.  The Court cited Varnava and Others, observing that allowances must be made for the uncertainty and confusion that often follow a disappearance. 

The Court referred to two other considerations that justify a less rigorous approach when evaluating compliance with the six-month time limit in disappearance cases, again citing Varnava and Others.  First, there exists a consensus in international law that it should be possible to prosecute perpetrators of such acts many years after the events.  Second, it is best for the facts of cases to be investigated and issues to be resolved to the extent possible at the domestic level.

The Court cited the following holding from the Varnava case:

“In a complex disappearance situation such as the present, arising in a situation of international conflict, where it is alleged that there is a complete absence of any investigation or meaningful contact with the authorities, it may be expected that the relatives bring the case within, at most, several years of the incident. If there is an investigation of sorts, even if sporadic and plagued by problems, the relatives may reasonably wait some years longer until hope of progress being made has effectively evaporated. Where more than ten years has elapsed, the applicants would generally have to show convincingly that there was some ongoing, and concrete, advance being achieved to justify further delay in coming to Strasbourg. Stricter expectations would apply in cases where the applicants have direct domestic access to the investigative authorities.”

The Court noted that this case was brought within ten years of Ahmet’s disappearance, then proceeded to examine whether the applicants met the stricter expectations that apply due to their direct access to the investigative authorities. 

The Court noted that the applicants had immediately informed the prosecutor of Ahmet’s detention by the military and that the family cooperated with the prosecutor and provided eyewitness evidence.  Furthermore, the Court noted that the investigation initiated by the prosecutor continued actively until February 1996, and further steps were taken after the prosecutor decided that the military prosecutor had jurisdiction.  The military prosecutor requested further information from the military units and eyewitnesses.  The family cooperated with the military prosecutor, and the family’s attorney sought information about the investigation from the prosecutors.  The Court concluded that an investigation, although sporadic, was being conducted during the relevant time period, and the family did all that could be expected of them to assist the authorities.  Additionally, the 2003 decision of the civilian prosecutor who deemed evidence of military involvement in Ahmet’s disappearance credible, as well as the investigation by the military prosecutor, must have been considered promising developments by the family.  Thus, the Court found that the applicants did not fail to show the requisite diligence by awaiting the results of the investigations, and it rejected the Government’s objection to admissibility based on the six-month time limit. 

The Court rejected the Government’s argument that it had not been necessary to take procedural steps related to detention with respect to Ahmet Er because he had not been detained, mentioning previous judgments in which the failure of military personnel to keep adequate custody records led to the conclusion that effective safeguards against the disappearance of detainees were lacking.  On this basis, the Court concluded that it could not attach weight to the “unsatisfactory and arbitrary distinction” between being taken into custody and being taken to assist the military.

The Court stated: “The obligation to account for the well-being of a detainee exists even when it has not been proved that the person has been taken into custody by the authorities, if it is established that he or she was officially summoned by the military or the police, entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty.”  The Court cited Tanış and Others, stating that “the authorities’ obligation to account for the fate of a detained individual continues until they have shown that the person has been released.”  As noted above, no documents were drawn up regarding Ahmet Er’s detention or release, and the military officials gave contradictory and confusing evidence regarding Ahmet Er’s release from the gendarmerie station.  In light of these considerations, the Court found that Ahmet Er remained in the custody of the State, and the Government was thus obligated to account for his disappearance.  On the basis of that finding, the Court examined the alleged violations of Article 2. 

Ahmet Er’s Disappearance

The Court noted that Ahmet Er’s disappearance in 1995 fit in with the pattern of disappearances of large numbers of persons in southeast Turkey between 1992 and 1996.  In examining a number of those disappearances, the Court had concluded that the disappearance of a person in southeast Turkey at the relevant time could be life-threatening.  Additionally, the lack of documentation relating to Ahmet Er’s detention at the gendarmerie station increased the risk to his life in the context of the situation in southeast Turkey at the time.  For these reasons, and considering that no information has surfaced regarding the whereabouts of Ahmet Er for nearly seventeen years since his detention, the Court accepted that he must be presumed dead.  Thus, the responsibility of the respondent State for his death was engaged.  Since the State has not accounted for what happened during his detention and does not rely on justification respecting possible use of lethal force by its agents, liability for his death is attributable to the respondent Government.  Thus, the Court found a violation of Article 2 in its substantive aspect. 

Effectiveness of Investigation

The State’s obligation to protect the right to life under Article 2, together with its duty under Article 1 to secure everyone within its jurisdiction the rights and freedoms defined in the Convention, requires by implication an effective official investigation when individuals have been killed as a result of the use of force.  This obligation is not limited to cases where it is apparent that the killing was caused by an agent of the State.  The Court noted that, although the prosecutor was informed of the detention of Ahmet Er on the day he was initially detained, no steps were taken by the prosecutor until two days later when he contacted a commando major by telephone.  The prosecutor did not further question any members of the security forces for five months.  Although the prosecutor made inquiries and followed up with those who failed to respond, his investigation seemingly lost momentum.  The prosecutor apparently accepted without further investigation what the military officials told him about Ahmet Er’s alleged release and did not take steps to call military officials to account for Ahmet Er’s unlawful detention.  The Court concluded that the prosecutors made no serious attempts to find out what happened to Ahmet Er.  The Court found that the investigation into Ahmet’s disappearance was inadequate and in breach of the State’s procedural obligations to protect the right to life; thus, Article 2 had been violated in its procedural aspect.

Article 3

Article 3 states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court found that the applicants suffered and continue to suffer distress and anguish due to the disappearance of their relative and their inability to find out what happened to him, and the authorities’ manner of dealing with their complaints constituted inhuman treatment contrary to Article 3 of the Convention.  Thus, Article 3 was violated with respect to the applicants. 

Article 5

Article 5 of the Convention states:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

....”

The Court stated that the fact that Ahmet Er’s detention and release were not logged in the records of the gendarmerie station is a serious failing in that it allows those responsible for an act of deprivation of liberty to escape accountability for the fate of a detainee.  The absence of recorded data such as date, time, and location of detention, name of detainee, reason for detention and name of person effecting it, and time and date of release is incompatible with the purpose of Article 5.  The Court found that Ahmet was held in unacknowledged detention in the complete absence of the safeguards of Article 5 and that there was a violation of the right to liberty and security guaranteed by that provision.

Article 13

Article 13 states:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Where relatives have an arguable claim that a family member disappeared at the hands of authorities or in a situation where the right to life is at stake, Article 13 requires a thorough and effective investigation capable of leading to the punishment of those responsible; it also requires the payment of compensation where appropriate.  The Court found that the authorities failed to comply with their obligation to conduct an effective investigation into the disappearance of Ahmet Er.  Consequently, Article 13 was violated.