By Roberta M. Gubbins
Legal News
Recently actor George Clooney was arrested in the process of speaking out against the attacks by the Sudanese government on its southern regions and the blocking of humanitarian aid. Clooney's method of protest was civil disobedience.
Michelle Oliel, a Canadian lawyer, uses the lawyer's method to protest against the atrocities committed by governments against their citizens--she is a Fellow in the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia at the Hague in the Netherlands where she works to convict those charged with international crimes. Oliel spoke at the inaugural lecture of the MSU College of Law Talsky Center for Human Rights of Women and Children on March 15th.
"I come here today," Oliel said, "to discuss a topic of great importance, that is, ending impunity for crimes against civilians" such as the current events in Syria where "even humanitarian access such as food supplies, basic education, health services, water, sanitation facilities have all been disrupted by the government."
Ending impunity, she explained, means that no state, no government, no opposition forces, no armed forces, no one person can abuse human rights without being held accountable.
"The link between human rights norms and criminal prosecution is made through the idea that we need to protect persons from violations of the fundamental human rights. International law recognizes the duty of states to bring those responsible for acts such as genocide, torture and breaches of the Geneva Conventions to justice."
Because, historically, states were unwilling or unable to bring those responsible to justice, the international community, after the Second World War, began to work toward following the rule of law with the International Court at Nuremburg.
"The jurisprudence that emerged in Nuremburg can be viewed as the starting point," she said. "In my view, one of the most important legacies of Nuremburg tribunals is establishing individual criminal responsibility under command or superior responsibility," meaning that superiors can be held responsible for the actions of those under their command.
Following Nuremburg not much happened until the end of the cold war. Around 1992 the UN General Assembly asked the International Law Commission to draft a statute for a permanent International Criminal Court (ICC). At the conference held in Rome the statute, named the Rome statute, was drafted. It came into force in 2002 with ratification by 120 of the 193 U N member countries. Included in the remaining countries that didn't sign the agreement are United States, Russia, China and Syria.
The message she wants to send is that this isn't about politics, it's about ending impunity, which means every nation should take part. The recent decision, the first to come out of the ICC, she noted, is a landmark decision because it found the defendant guilty of impounding children in the military. "It is an historic case for the Congolese people."
"I never planned on being an international criminal lawyer," she said. "I was practicing corporate law. While practicing at the firm there was this burning desire to do something good. I had no idea how I could take this passion inside to a new level, so I quit my job, left my six-figure income, took my two rescue dogs and went to the Netherlands to acquire a masters in International Law. I came to the International Criminal Tribunal of Yugoslavia as an unpaid intern."
She is still there.
Her first case was against a general who was convicted, not for the crimes of his own army, but for the crimes committed by a separate army. He received a sentence of 27 years of imprisonment, which is now under appeal. This is important, she stressed, because it expands command responsibility to those in position of de facto control. The message it sends to leaders who arm foreign armies that then go out and commit crimes is that they, the leaders, can be held accountable for crimes committed by those armies.
"Another important innovation of the ICTY, she said, "is the development of an additional mode of joint criminal responsibility known as joint criminal enterprise," meaning criminal culpability for crimes committed in "the furtherance of common purpose and are a foreseeable result of the common purpose."
The importance of these innovations is that they have changed the landscape of international criminal law, which now provides victims with an opportunity to state their case before a tribunal. It also creates a written history of the events.
In answer to questions, she noted:
How does the tribunal make procedural law?
Admitting that the original resolutions were silent on fair trial rights, she noted that they have continued to develop and be refined. Our procedural rules have helped to speed trials up and consolidated them.
How do the international tribunals keep politics out of process?
We have standards at trial and at appeal and we apply evidence on a case-by-case basis. We hope to keep the politics out by demanding that the evidence prove guilt beyond reasonable doubt.
How do the international tribunals promote reconciliation for the victims?
The victims do come to the courts and there are offices in countries with outreach teams. Victims do voice their horrors and the process can bring some sort of closure and reconciliation.
How many judges hear the cases?
The trial is before three judges and the appeal before five judges not sitting in the trial. The appeal process is not a new trial but determines whether the conclusions are reasonable.
Oliel is a Canadian attorney who earned an LL.B. from the University of Windsor and an LL.M. in public international law from Utrecht University in The Netherlands. She previously worked as an intern for the International Criminal Tribunal for Rwanda and as an associate in a Toronto law firm. She is the author of Undervalued and Manipulated--Evaluating China's foreign exchange arrangements under the International Monetary Fund and the World Trade Organization.
The mission of the Talsky Center for Human Rights of Women and Children is to educate MSU College of Law students, as well as the broader community, about international human rights law and international humanitarian law. The Center aims to promote an understanding of the important civilizing role that this body of law so often plays in a world fraught with transgressions against human dignity and well being. The Center promotes human rights for all people, with a primary focus on women and children--generally the most vulnerable and, therefore, most easily victimized members of society.
Published: Thu, Mar 22, 2012
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