Guantanamo terrorism convictions proving vulnerable on appeal

Khalid Shaikh Mohammed
Salim Hamdan has been home in his native Yemen for nearly four years since completing his sentence at Guantanamo Bay for providing "material support to terrorism" -- six years of domestic service to Osama bin Laden as gardener, bodyguard and driver.

GlobalFocusOne of only seven Guantanamo captives to be sentenced for alleged war crimes by the Pentagon's military commissions, Hamdan had his conviction vacated this week by a unanimous federal appeals court panel on grounds that the assistance he provided the late Al Qaeda leader in Afghanistan wasn't defined as a war crime until five years after his 2001 capture.

Hamdan is already at liberty and moving on with his life, his pro bono attorney reported Thursday after informing his client by telephone that his appeal was successful. The 40-year-old taxi driver with a fourth-grade education was pleased to be cleansed of the "war criminal" label but doesn't plan to pursue an uphill battle for compensation, said the attorney, Harry Schneider of Seattle.

Dean Boyd, a Justice Department spokesman, said the government was still reviewing the ruling and would have no comment.

The ruling will serve as binding precedent in the appeals of other Guantanamo detainees convicted for war crimes ex post facto, Schneider predicted. The next likely beneficiary of the tribunal's overreaching prosecutions, defense attorneys say, could be defiant Al Qaeda propagandist Ali Hamza Bahlul, who is serving a life sentence at the U.S. military prison in southern Cuba.

Within hours of the decision by the U.S. Circuit Court of Appeals for the District of Columbia, Australian convict David Hicks' lawyer announced that he would seek to have his client's guilty plea revoked and conditions of his release to Australia stricken. Attorney Stephen Kenny also said in an interview with the Australian Broadcasting Co. that he would pursue compensation for Hicks and an investigation of whether the Canberra government aided and abetted his wrongful imprisonment.

A kangaroo skinner who trained at an Al Qaeda base in Afghanistan before fleeing the October 2001 U.S.-led invasion, Hicks was arrested trying to cross into Pakistan and held at Guantanamo for six years. He was released to his homeland as part of his plea deal, which prohibits him from appealing his case or disclosing details of his experience for monetary gain.

Bahlul, a Yemeni like Hamdan, also was convicted at his uncontested 2008 trial of solicitation of murder in a recruiting video he produced for Al Qaeda. David Glazier, an international law professor at Loyola Law School, said legal scholars began speculating that the solicitation charge might be ruled beyond the commissions' jurisdiction after the same Washington appeals court that threw out material support as a legal charge canceled oral arguments in the Bahlul appeal just before it issued the Hamdan decision.

"There's been some discussion in the blogosphere about whether or not this means the end of conspiracy as well," said Glazier, who was a career Navy surface warfare officer before earning his law degree.

Only one of the seven Guantanamo convictions has involved crimes recognized as a violation of the international law of war: the murder, attempted murder and spying charges against Canadian Omar Ahmed Khadr, who was recently transferred to Canadian custody to serve out the six years left on his term.

Prosecutors at the military commissions have relied on material support and conspiracy to get convictions or plea bargains in the few completed cases, but Glazier argues that those "inchoate offenses" aren't considered war crimes under international law. Only after Congress passed the 2006 Military Commissions Act did the Guantanamo tribunal have jurisdiction to try suspects for those crimes, said the appeals court panel, which is made up entirely of Republican appointees.

J. Wells Dixon, senior attorney with the Center for Constitutional Rights, which has provided legal representation to hundreds of the nearly 800 men detained at Guantanamo since 2002, predicted that "conspiracy is the next military commissions charge on the chopping block."

"The Hamdan decision is significant because it is an illustration of the inherent problems in creating a second-rate system of justice that we make up as we go along," he said of the commissions, the original version of which was declared unconstitutional by the U.S. Supreme Court in June 2006, prompting a hurried redo, the Military Commissions Act, three months later.

Five "high-value detainees" facing death penalty trials for the Sept. 11, 2001, terrorist attacks have been in the Guantanamo courtroom this week, bringing pretrial motions and theatrics to the forum.

In the first prosecution on charges widely accepted as war crimes, Army Col. James Pohl, the presiding judge, has been inundated with peripheral considerations, such as whether self-proclaimed Sept. 11 mastermind Khalid Shaikh Mohammed should be allowed to wear a camouflage hunter's vest in the courtroom to project a warrior image.

Pohl has also had to rule on whether mold and rodent infestation at the defense attorneys work space on the remote base compromises their ability to prepare for trial, and whether any mention of mistreatment during CIA interrogations risks revealing national security secrets.

"Regardless of the underlying conduct and the quality of evidence the government presents at trial, there is no certainty that those convictions will stand" federal civilian court review, Dixon said. "For the Obama administration to continue to pursue military commissions charges is a real gamble."


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Photo: Artist's sketch shows alleged Sept. 11 mastermind Khalid Shaikh Mohammed, right, speaking with a member of his legal team during a hearing at the U.S. military prison at Guantanamo Bay, Cuba. Credit: Janet Hamlin


Former Balkan leader proclaims innocence of genocide charges

KaradzicLONDON -- Former Bosnian Serb leader Radovan Karadzic declared his innocence and argued that he tried to stop the violent 1990s conflict in his Balkans homeland as he began his defense against war crimes charges Tuesday before an international tribunal in The Hague.

The ex-president of the wartime Republika Sprska faces 10 counts of genocide and related war crimes  committed during the Balkan conflict that followed the collapse of the former Yugoslavia.

“Instead of being accused, I should be rewarded for all the good things I’ve done, namely that I did everything in human power to avoid the war," said Karadzic, 67, who looked relaxed but resigned with a professorial air. "The number of victims in our war was three to four times less than the number reported.” 

Karadzic stands accused of aiding and abetting some of the worst atrocities in Europe since World War II, committed primarily against Bosnian Muslims and Croats. He is charged with having a hand in the notorious killing of over 8,000 Muslim men and boys in Srebrenica; in the “sniping and shelling to kill, maim, wound and terrorize the civilian inhabitants of Sarajevo” resulting in the death of thousands of civilians; and in the taking of hostages, including U.N. peacekeepers and military observers, to use as a human shields against NATO airstrikes.

“Everybody who knows me knows that I am not an autocrat ... that I am not intolerant, on the contrary I am a mild-mannered man, a tolerant man, with a great capacity for understanding others,” Karadzic told the court as he denied the charges.

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Mali asks international court to investigate alleged war crimes

Mali government asks international court to probe war crimesJOHANNESBURG, South Africa -- Mali's government has requested the International Criminal Court to investigate possible war crimes by Tuareg and Islamic rebels who seized the north of the country in recent months.

The International Criminal Court's chief prosecutor, Fatou Bensouda, said Wednesday that Malian authorities had asked the court in The Hague to investigate whether people should be charged for crimes committed.

"I have instructed my office to immediately proceed with a preliminary examination of the situation," she said.

Her statement came as the International Crisis Group, an independent think tank, warned in a report Wednesday that a coup in January that deposed Malian President Amadou Toumani Toure and the capture of the north by rebels soon after posed a crisis for the country while threatening regional stability and security.

With a power vacuum in Bamako, the capital, the think tank warned that the prospects for a negotiated settlement were rapidly receding.

But it urged against military intervention by Mali's neighbors, which have put a force of about 3,000 soldiers on standby. It said military intervention would set northern tribes against one another, undermining any chance of peaceful coexistence. It would also expose West Africa to retribution and terrorist attacks by radical Islamic rebels from their bases in Mali.

Rebels who mounted an uprising in January have been accused of rapes, killings and destruction of world heritage sites, including ancient tombs.

Last week there were reports that the Al Qaeda-linked Ansar Dine rebels, who have begun imposing a strict version of sharia, or Islamic law, in the north had destroyed tombs at the famous Djingareyber mosque in Timbuktu.

The International Crisis Group report called on regional leaders to take action to ensure that terrorists didn't get a foothold in Mali, turning the region into a new front in the war on terrorism.

It said the Tuareg rebels who initially mounted the rebellion, the National Movement for the Liberation of Azawad, had been outflanked by Ansar Dine, which has links with Al Qaeda in the Islamic Maghreb, a group responsible for kidnappings and killings of Westerners.

"The latter [group] is responsible for kidnapping and killing many Westerners in Mali, Niger and Mauritania, attacks against the armies of the region and involved in criminal transborder trafficking. Northern Mali could easily become a safe haven for jihadi fighters of all origins," the report warned.

"Considered for 20 years a model of democratic progress in sub-Saharan Africa, Mali is now on the brink of sheer dissolution," the report said.


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Photo: The Islamist police patrol in the streets of Gao, northern Mali, on Monday. Muslim rebels seized much of the north early this year after a coup toppled the central government. Credit: Issouf Sanogo / AFP/Getty Images


Former Congo warlord sentenced to 14 years over child soldiers


Former Congolese warlord Thomas Lubanga was ordered to spend 14 years in prison Tuesday for enlisting children as soldiers, the first sentence handed down by the decade-old International Criminal Court.

The “vulnerability of children mean that they need to be afforded particular protection,” presiding judge Adrian Fulford said as Lubanga listened, grave-faced, to his fate.

Lubanga was convicted in March after a three-year trial that centered on enlisting children to fight during a civil war in the Democratic Republic of the Congo nearly a decade ago. Human rights groups have also said his forces committed rapes, torture and killings, accusations that were not put before the court.

Prosecutors had sought 30 years in prison for Lubanga. The court handed him a lesser sentence after weighing “the lack of any aggravating circumstances” and his cooperation with the court. Lubanga, who was seen in videos alongside child soldiers, did not mean to recruit children but “was aware that in the ordinary course of events this would occur,” Fulford said Tuesday.

Six years will be deducted from Lubanga's sentence to cover the time since he first surrendered to the court, aggravating critics who called the sentence too light.

"Lubanga will serve less time than the [court] has been open!" Northwestern University international law professor Eugene Kontorovich lamented on Twitter.

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International court gets first African female head prosecutor

Fatou Bensouda was sworn in Friday at The Hague as the chief prosecutor of the International Criminal Court, the second person to hold that title, the first African to do so and the first woman.

Bensouda takes the reins at an uneasy moment in the short history of the court. Several of its staffers have been detained for more than a week in Libya after a meeting with the son of Moammar Kadafi led to accusations of spying, despite the court's  insistence that they have immunity.

African leaders have complained that the only cases the court has taken up are against Africans. Some have been loath to turn over Sudanese President Omar Hassan Ahmed Bashir, wanted by the court on charges of war crimes and genocide.

On top of those political headaches, the court probably will face a financial squeeze as the countries that accepted the court's jurisdiction scrape to survive their own economic crises, leaving it with less money to take on a growing list of cases.

Bensouda has been greeted by experts as exactly what the court needs at this perilous time. As a longtime deputy prosecutor within the court, she is a known and trusted face to the staffers. As a Gambian woman, she is better poised to rebut accusations that the court only targets Africans.

"Will she wave a magic wand and cure all the difficulties that exist at the ICC at the moment? No. Can she bring positive disposition over time to transforming the polluted atmosphere in which the institution has been operating in Africa? Absolutely," Chidi Odinkalu, chairman of the Nigerian national human rights commission, told the Guardian.

And with a softer touch than her predecessor, the firebrand attorney Luis Moreno-Ocampo, Bensouda is expected to ease the tension over surrendering war crimes suspects, help marshal financial support and guide the young institution toward greater maturity.

“She just exudes this warmth that Ocampo didn’t have,” said Michael Scharf, director of the international law center at Case Western University. “I think that will be her secret weapon.”

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Legal team detained in Libya after meeting with jailed Kadafi son


Four delegates from the International Criminal Court have been detained since Thursday in the remote Libyan town of Zintan after an arranged meeting with the imprisoned son of the late strongman Moammar Kadafi.

The detainees include an Australian lawyer who was reportedly accused of passing documents to Seif Islam Kadafi during their meeting last week. The legal delegation had gone to Libya to talk with Kadafi, who is charged with crimes against humanity, about whether he would choose his own attorney or use one appointed by the court.

The ICC has called for their release, insisting that the four delegates have immunity on their official court mission. Libya had already said in legal statements that it would facilitate access between Kadafi and his attorneys, the court said.

“We are very concerned about the safety of our staff in the absence of any contact with them," court president Sang-Hyun Song said Saturday in a statement.

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Trial of Bosnian military leader Ratko Mladic is suspended

The war crimes trial of Ratko Mladic, the Bosnian Serb military leader during the wars of the 1990s, was suspended after the judge declared that the prosecution had failed to hand over evidence to the defense
This story has been updated. See the note below.

LONDON -- The war-crimes trial of Ratko Mladic, the Bosnian Serb military leader during the wars of the 1990s, was suspended Thursday after the judge declared that the prosecution had failed to hand over evidence to the defense.

Presiding Judge Alfons Orie told the court in The Hague that "in light of the prosecution's significant disclosure errors ... the chamber hereby informs the parties that it has decided to suspend the start of the presentation of evidence." The trial had begun Wednesday.

The announcement came after Peter McCloskey, speaking for the prosecution, wound up his opening statement before the International Criminal Tribunal. He had outlined what prosecutors say are the crimes that Mladic, as commander of the Bosnian Serb army, committed during the 1992-95 war that accompanied the breakup of the former Yugoslavia.

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The prosecution has acknowledged it failed to hand over full evidence to the defense as required by the court rules. The defense had requested a six-month delay.

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Former prosecutor hails Charles Taylor guilty verdict

Taylor verdict
JOHANNESBURG, South Africa -- David M. Crane, founding prosecutor at the Special Court for Sierra Leone, said Thursday’s conviction of former Liberian President Charles Taylor for war crimes and crimes against humanity was “hugely significant.”

Taylor is the first former head of state to be convicted of war crimes in an international court or hybrid international-national court since the Nuremburg trials that followed World War II.

“A very clear bell has rung across the world saying that dictators and thugs who kill their own people will be held responsible for that atrocity,” Crane said in a phone interview from The Hague.

Crane, a law professor at Syracuse University who drafted the 2003 indictment of Taylor, flew to The Hague for the verdict.

Taylor, 64, was found guilty aiding and abetting Sierra Leone rebels in 11 crimes, including murder, terrorizing civilians, rape, sexual slavery, and recruiting and using child soldiers during Sierra Leone’s bloody 1991-2002 civil war.

Crane said it sent a strong message that leaders who committed atrocities would face justice.

He predicted that Taylor would remain behind bars for the rest of his life. He said the fact that Taylor was found guilty of "aiding and abetting" the war crimes did not imply a lesser conviction than being found guilty of being in the chain of command.

“He’s been found guilty, as charged, of war crimes and crimes against humanity. He’s going to get a very stiff sentence, which will amount to life imprisonment," said Crane.

Taylor's lawyers, who tried to have the case thrown out during the trial, argue that the case is political, designed to keep Taylor out of power in Liberia.

The former Liberian president played a role in conflict and instability across several West African countries, arming and supporting militias across the region, but Thursday’s verdict at the U.N.-backed special court relates to his role in Sierra Leone’s war, where around 50,000 people died.

Critics have questioned the Liberian government’s failure to ensure prosecution of Taylor and others for alleged war crimes in the 1989-1995 Liberian civil war which killed some 200,000. But Crane said while the international justice system was new, and wasn't perfect, justice had been done.

Taylor became president in 1997. He stepped down in 2003, several months after being indicted for war crimes and crimes against humanity by the Special Court for Sierra Leone, taking advantage of an offer of safe haven by Nigerian president Olusegun Obasanjo.

Obansanjo made the deal to protect Taylor from prosecution on condition he stay out of Liberian politics. But the deal was ditched after Liberian president Ellen Johnson Sirleaf came to power in 2005 elections and requested that Nigeria hand over Taylor to stand trial at the Special Court for Sierra Leone in 2006.

Critics in Africa have argued that repudiating Taylor’s amnesty deal has made it more difficult to remove tyrants, making them more likely to cling to power, often violently.

“It’s an important point,” said Crane. “It’s peace versus justice. Sometimes justice has to wait until there is peace. But certainly justice has to be done. At the end of the day you have to have justice because the people who suffered and saw members of their families suffer, demand it.”

The verdict was hailed by human rights organizations.

"Powerful leaders like Charles Taylor have for too long lived comfortably above the law,” said Elise Keppler of Human Rights Watch’s international justice program. “Taylor’s conviction sends a powerful message that even those in the highest-level positions can be held to account for grave crimes."

Amnesty International deputy director for Sierra Leone, Brima Abdulai Sheriff, welcomed Taylor’s conviction but said thousands of others who were criminally responsible for abuses had never been investigated or prosecuted. He said a limited number of victims had received reparations.

“This verdict can also be seen as a reminder for Taylor’s home country Liberia that those responsible for the crimes committed during Liberia’s conflict must be brought to justice,” Sheriff said in an emailed statement.


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Photo: People in Freetown, Sierra Leone, watch a live broadcast Thursday of the verdict in the Netherlands-based trial of former Liberian President Charles Taylor at the Special Court for Sierra Leone. Credit: Felicity Thompson / Associated Press

Liberia's Charles Taylor guilty of aiding, abetting war crimes

LONDON -- In a landmark case, former Liberian President Charles Taylor has been convicted of aiding and abetting war crimes and crimes against humanity through his arming of ruthless rebel groups in neighboring Sierra Leone in exchange for so-called blood diamonds.

An international war crimes tribunal announced Thursday that it had found Taylor guilty of "sustained and significant" support for the rebels who engaged in a long campaign of terror, murder, rape, sexual slavery and enlistment of child soldiers. However, he was found not guilty beyond a reasonable doubt of ordering those abuses himself.

Still, it was a milestone verdict in a case that has been seen as an important test of the international justice system. Taylor, 64, is the first former head of state to have a judgment brought against him by an international court since the Nuremberg trials after World War II.

The verdict followed a year of deliberations by the judges of the Special Court of Sierra Leone just outside The Hague. A sentencing hearing is scheduled for May 16; Taylor could be imprisoned for life.

His trial lasted five years, during which the court heard a catalog of horrific acts committed by rebels whom Taylor helped arm in Sierra Leone’s civil war. The war ended in 2002 after more than a decade of fighting and more than 50,000 deaths. The rebels backed by Taylor became particularly known for hacking off the limbs of their perceived enemies and carving words onto their bodies.

They also recruited children to fight and terrorized the civilian population through rape, looting and burning down homes. Crucial to their campaign were the weapons they bought from Taylor and paid for with what came to be known as “conflict" or "blood" diamonds, because of their role in fueling conflict in Africa.

At one point during the trial, supermodel Naomi Campbell testified to receiving diamonds from Taylor at a banquet hosted by South African President Nelson Mandela. Actress Mia Farrow also testified regarding that incident.

Taylor, a warlord-turned-elected president, was indicted in 2003, arrested in 2006 and eventually flown to The Hague for trial. Conducting the proceedings in Sierra Leone itself was deemed potentially too destabilizing for West Africa.

Taylor pleaded innocent to 11 counts of war crimes and crimes against humanity. He testified for seven months in his own defense, portraying himself as a statesman, peacemaker and victim of a witch hunt by “vindictive” former colonial powers intent on keeping him out of power. His lawyers acknowledged that terrible abuses took place during Sierra Leone’s civil war but argued that he was not responsible for them.

The prosecution disagreed, describing him as the “godfather” of the rebels. Prosecutors called 94 witnesses and backed up its case with nearly 800 exhibits admitted into evidence. Taylor’s defense team called 21 witnesses.

Another former African leader, Laurent Gbagbo of Ivory Coast, is now awaiting trial at The Hague.


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Photo: A journalist records the speech by former Liberian President Charles Taylor (on screen) during his trial at the Special Court for Sierra Leone, based in Leidschendam outside The Hague. Credit: Peter Dejong / AFP Photo, Pool

Syria can't escape international law's 'long reach,' Cameron says

David Cameron at the White House

British Prime Minister David Cameron argued Wednesday while visiting the United States that Syria would not be able to escape the “long reach” of international law.

His remarks came on the same day the International Criminal Court handed out its first-ever verdict, convicting a former Congolese warlord of using child soldiers in 2002 and 2003.

But the court faces steep obstacles to tackling alleged atrocities in Syria, now roughly a year into a battered uprising. The reason: Syria has not signed on to join the International Criminal Court.

War crimes could still be prosecuted there if the United Nations Security Council agreed to refer a case, but any of the five countries on the council can block it from doing so. That includes Russia and China, allies of President Bashar Assad that have vetoed action against the Syrian regime in the past.

The apparent stalemate on alleged Syrian war crimes has piqued concern about the limited reach of the International Criminal Court, a relatively new player on the world scene.

"The Syrian situation is frustrating many people," said Leila Sadat, a professor at Washington University School of Law in St. Louis. "It should be at the International Criminal Court. But if two of the powers want to stop it, they can."

Cameron said he knew that Syria was not a part of the International Criminal Court, but he said that Britain was still working to document human rights abuses, sending monitors to the Turkish border to document crimes that “shouldn’t be allowed to stand in our world.”

The prime minister also argued that the West could still appeal to Russia. "It's not in their interest to have this bloodied, broken, brutal regime butchering people nightly on the television screens," he said.


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Photo: President Obama welcomes British Prime Minister David Cameron during an official arrival ceremony at the South Lawn of the White House in Washington on Wednesday. Credit: Mark Wilson / EPA


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