Convicted Congolese warlord Jean-Pierre Bemba Gombo received a huge setback recently when the Trial Chamber of the International Criminal Court on May 5, 2017 rejected his appeal which urged the Court not to continue with reparation proceedings till his pending appeal was decided. In the case of the Prosecutor v. Jean-Pierre Bemba Gombo, decision on the defence’s request to suspend the reparations proceedings, the Court observed that Article 75 of the Rome Statute gives the Chamber the power to make a reparations order against any convicted person.

Post the conviction and the order on sentence, in July 2016 the Chamber made an order requesting submissions relevant to reparations and in October 2016 the Prosecution, Defence, Legal Representative of Victims (LRV), Office of Public Counsel for Victims (OPCV), Trust Fund for Victims (TFV) and the Registry filed their observations on reparations. Finally in February 2017, the Chamber issued an order inviting submissions on experts to assist the Chamber in its determinations on reparations.

The defence team of Bemba Gombo urged the Chamber to refrain from instructing expert witnesses and to suspend the reparations process at the latest after the selection of any expert(s) and the finalisation of any letter of instruction as it argued that it was inconsistent with the rights of the accused as it operated as an effective presumption of guilt and also placed a heavy burden on the defence’s resources. It argued that even in the Katanga case, the reparation proceedings started only after the withdrawal of the appeals when the LRVs asked the Chamber to set a schedule for filing observations on the principles for reparations in August 2014, two months after the parties had withdrawn their appeal.

It further argued that as reparation orders were intrinsically linked to the individual whose criminal responsibility was established in a conviction and whose culpability for these criminal acts was determined in a sentence and that an accused should not have to remedy harms that are not the result of the crimes for which he was convicted, continuing with the reparations process whilst there was an extant live appeal against conviction was inappropriate.

But the Chamber refused holding that the Appeals Chamber in Prosecutor v Lubanga (Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations”) had identified five constitutive elements, which, at a minimum, must be contained in an order for reparations: 1) it must be directed against the convicted person; 2) it must establish and inform the convicted person of his or her liability with respect to the reparations awarded in the order; 3) it must specify, and provide reasons for, the type of reparations ordered, either collective, individual or both; 4) it must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as identify the modalities of reparations that the Trial Chamber considers appropriate based on the circumstances of the specific case before it; and 5) it must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted. For addressing these elements the Chamber needed to take a number of preparatory steps. Also the legal texts of the Court contemplated that reparation proceedings may commence in parallel to a pending appeal. Referring to the established practice that preparatory steps to facilitate and expedite the reparations proceedings are launched following a conviction, it held that the issuance of a reparations order is not prejudicial to the rights of the convicted person irrespective of whether there is an appeal against the conviction decision.

The Chamber further observed that in the present proceedings reparations were only at a preliminary stage. Finally Article 64(3)(a) of the Rome Statute gave the Trial Chamber the power to suspend the proceedings if this was necessary to facilitate the fair and expeditious conduct of the proceedings. But suspending the reparations case would in fact be fatal to the fair and expeditious conduct of the proceedings. It held that the suspension of all reparations proceedings until after the Appeals Chamber had rendered its decision would substantially impact the victims’ interests to access reparations in a timely manner. Thus the Court disallowed the relief sought by Bemba Gombo.

Donald Trump, GOP, Hillary Clinton, Immigration, US Politics, US Presidential Elections

“The forgotten men and women of our country will be forgotten no longer” – Donald Trump sweeps to power in shock election win, revives hope for achhe din for aam Americans.

November 9, 2016 Rajdeep Banerjee

Donald Trump has won the US presidential election in a surprise victory that has shocked the poll pundits around the world. Trump’s populist, protectionist rhetoric has helped him win the presidency. The agony of the white working middle class has finally led to Trump’s way to the Oval office. The blue-collared whites have seen squeezing living standards and rising inequalities. Globalisation resulted in massive movements of capital around the world, but in the process created a majority of Americans being relegated to a stricken middle class. Trump has been successful in consolidating this massive chunk of voters, finally culminating in his win.

Trump has been very aggressive in his policies. He wants to brand China a currency manipulator which can even trigger a trade war between the world’s two biggest economies. He has also promised to renegotiate NAFTA. Trump has openly criticised the Trans-Pacific Partnership, which has not yet been ratified. He wants to negotiate fair trade deals so as to create American jobs, increase wages, and reduce the trade deficit. He has consistently attacked Hillary Clinton as the person who supported NAFTA. He has also opposed Hillary’s support to China’s entry into the World Trade Organization, and allowing China to run up $1 trillion in cumulative trade deficits with the United States.

Trump has promised to prioritize the jobs, wages, security of the American people and establish new immigration controls to boost wages and to ensure that open jobs are offered to American workers first. He has even declared to protect the economic well-being of the lawful immigrants already living in the States by curbing uncontrolled foreign worker admissions. He professes to introduce an ‘America’s Infrastructure First’ policy. Investments in transportation, clean water, a modern and reliable electricity grid, telecommunications, security infrastructure, and others will be his top priority. Trump has promised to create millions of new jobs in construction, steel manufacturing, and other sectors. Highlighting on the need of infrastructure investment, he has argued that such investment will make America more competitive, create jobs, increase wages for American workers, and will reduce the costs of goods and services for American consumers.

On eliminating terrorism, Trump promises to pursue aggressive joint and coalition military operations to destroy ISIS, international cooperation to cut off their funding, expand intelligence sharing, and cyber warfare to disrupt and disable their propaganda and recruiting. On the issue of indicting Clinton, Trump has alleged that Clinton lied to the Americans regarding the use of her private email server set up in the basement of her home while serving as Secretary of State. She had allegedly sent classified information jeopardizing the national security of America by allowing her emails to be hacked by foreign intelligence services. FBI Director James Comey’s statement that Clinton was extremely careless in handling very sensitive, highly classified information but was not criminally liable has also been criticised by the Trump camp. He has continuously targeted Hillary as the one who has been responsible for sending American jobs overseas which has led to rebuilding of foreign countries at America’s expense.

Trump rightly exhorted in his victory speech “Every single American will have the opportunity to realize his or her fullest potential.” A gargantuan challenge lies ahead for Trump.

Colombia, FARC, Insurgency, Juan Manuel Santos, Latin America, Nobel Peace Prize, Peace Accord

The last internecine guerrilla carnage in Latin America: Colombian president Juan Manuel Santos joins a long list of Kissinger, Roosevelt, Chamberlain, Arafat, Sadat, Ramos-Horta.

October 30, 2016 Rajdeep Banerjee

The Colombian president, Juan Manuel Santos, recently won the Nobel Peace Prize for pursuing a deal to end 52 years of conflict with the FARC, even though the peace deal was shockingly voted down in a referendum. The FARC is the Fuerzas Armadas Revolucionarias de Colombia (the Revolutionary Armed Forces of Colombia) which is a left rebel group that since 1964 has continuously waged a war against the Colombian government. This war has claimed over 220,000 lives and internally displaced more than 6 million people. The deal came after four years of negotiations in Cuba between government and rebel negotiators. The historic signing was from a pen made from a bullet to sign the peace deal. Dignitaries attending the ceremony included UN Secretary General Ban Ki-moon, Cuban President Raul Castro and US Secretary of State John Kerry.

Santos and the leader of the FARC, Rodrigo Londoño, also known as Timochenko, were both considered contenders for the prize after signing the peace deal last month to end 52 years of war. Santos beat competition from various organizations and individuals including the Syrian White Helmets, whistle-blower Edward Snowden, Angela Merkel, Pope Francis and doctor Denis Mukwege.

The Nobel Committee has always recognised the contributions of leaders who have put serious efforts to bring peace through negotiated settlements. For the efforts in ending the Russo-Japanese war, President Theodore Roosevelt was awarded the Nobel Prize in 1906. Again Sir Austen Chamberlain, Aristide Briand, Gustav Stresemann and Charles Dawes were awarded the Nobel Prize for the Locarno peace deal between France and Germany. African American Ralph Johnson Bunche was honoured with the award in 1950 for successful negotiation which bought an end to the Arab-Israeli war. For the Oslo Peace Accords Shimon Peres, Yasser Arafat and Yitzhak Rabin won the prize in 1994. Le Duc Tho and American diplomat Henry Kissinger won the award in 1973 for the ceasefire agreement between United States of America and Vietnamese Democratic Republic. Menachem Begin and Anwar Sadat won the prize in 1978 for the Camp David Accord to bring peace between Egypt and Israel. In 1996, the Nobel Prize was awarded to Carlos Belo and Jose Ramos-Horta for bringing a peaceful solution to the conflict in East Timor. John Hume and David Trimble won the prize in 1998 for the Good Friday Agreement to find a peaceful solution to the conflict in Northern Ireland.

Colombia has been dealing with insurgency for a long time. Reasons are not hard to fathom. The absence of state authority in rural areas, poverty, inequitable land distribution and widespread lawlessness have resulted in such an disturbed state of affairs. Under the now rejected 297-page peace agreement, the FARC’s fighters would have disarmed, handing over weapons to United Nations inspectors, and become a legal political party with ten guaranteed seats in the country’s Congress. But former President Alvaro Uribe who after coming to power in 2002 cracked down on the FARC is now leading the opposition to the peace deal. He is widely credited with having achieved the military gains that forced the FARC to the negotiating table. Uribe suggests that getting amnesty breaks the rule of law.

Awarding of Nobel Prize to President Juan Manuel Santos has revived hopes for the agreement with the FARC. Now renewed negotiations are underway and eventually a tweaked agreement may pass the plebiscite finally ending the continuing agony of the unfortunate Colombians.

Asia, China, International Arbitration, International Law, South China Sea Dispute, UNCLOS

The curious case of Itu Aba and Spratly Islands: Epochal ruling by an International Court (Permanent Court of Arbitration) on South China Sea dispute under UNCLOS (Philippines v. China) (Part 4 of 4)

September 5, 2016 Rajdeep Banerjee

On the status of features in the South China Sea, the Tribunal concluded that the following features include, or in their natural condition did include, rocks or sand cays that remain above water at high tide and were, accordingly, high-tide features: (a) Scarborough Shoal, (b) Cuarteron Reef, (c) Fiery Cross Reef, (d) Johnson Reef, (e) McKennan Reef, and (f) Gaven Reef (North). Also the following features are, or in their natural condition were, exposed at low tide and submerged at high tide and are, accordingly low-tide elevations: (a) Hughes Reef, (b) Gaven Reef (South), (c) Subi Reef, (d) Mischief Reef, (e) Second Thomas Shoal.

Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef, Gaven Reef (North) and McKennan Reef contain, within the meaning of Article 121(1) of the Convention, naturally formed areas of land, surrounded by water, which are above water at high tide. However, under Article 121(3) of the Convention, the high-tide features at Scarborough Shoal are rocks that cannot sustain human habitation or economic life of their own and accordingly shall have no exclusive economic zone or continental shelf.

The Tribunal further concluded that Mischief Reef and Second Thomas Shoal were both low-tide elevations that generate no maritime zones of their own. The Tribunal also concluded that none of the high-tide features in the Spratly Islands were capable of sustaining human habitation or an economic life of their own within the meaning of those terms in Article 121(3). All of the high-tide features in the Spratly Islands were therefore legally rocks for purposes of Article 121(3) and did not generate entitlements to an exclusive economic zone or continental shelf. Thus there was no possible entitlement by China to any maritime zone in the area of either Mischief Reef or Second Thomas Shoal. Mischief Reef and Second Thomas Shoal were held located within 200 nautical miles of the Philippines’ coast on the island of Palawan and were located in an area that was not overlapped by the entitlements generated by any maritime feature claimed by China. Thus as between the Philippines and China, Mischief Reef and Second Thomas Shoal form part of the exclusive economic zone and continental shelf of the Philippines.

Thus no maritime feature claimed by China within 200 nautical miles of Mischief Reef or Second Thomas Shoal constituted a fully entitled island for the purposes of Article 121 of the Convention and therefore that no maritime feature claimed by China within 200 nautical miles of Mischief Reef or Second Thomas Shoal had the capacity to generate an entitlement to an exclusive economic zone or continental shelf.