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A War Crimes Trial That Needs More Attention

Published on November 15, 2018        Author: 

Introduction

There is an ongoing landmark domestic trial for international crimes that is steadily progressing at this very moment in relative obscurity. The case is about one of the worst single-event crimes that has occurred since the Second World War and was matched in its methods and gravity only by the likes of the Nyarubuye, Gikondo, and Srebrenica Massacres of 1994 and 1995. In 3 days, 1000 people from several neighboring villages were rounded-up, imprisoned, tortured, raped and killed. More than 500 of them were children. The crime was committed during an internal armed conflict that lasted 12 years during the final decade of the Cold War. The crime was then denied, forgotten and eventually literally exhumated by Argentinian forensic experts in 1992. The crime took place between 11 and 13 December 1981 in a cluster of small villages in North-East El Salvador. The crime is remembered as the El Mozote Massacre.

It will be 37 years in December since this massacre took place. So far, nobody has been held criminally responsible for it, despite the fact that the details of the incident were well documented in the 1993 Report of the UN Truth Commission for El Salvador. This is largely because of the General Amnesty Law which was passed in 1993, shortly after the signing of the Chapultepec Peace Accord by which the Salvadoran civil war ended. However, in 2012, the Inter-American Court of Human Rights passed the Judgment in the Case of the Massacres of El Mozote and Nearby Places v. El Salvador in which it declared the Amnesty Law incompatible with the Inter-American Convention of Human Rights and with the peace accord itself.

It took some 4 years for the Salvadoran Constitutional Chamber of the Supreme Court to declare the Amnesty Law unconstitutional. Shortly after the law was derogated, the investigation into the El Mozote Massacre continued, and in March 2017 charges against 18 high-ranking military officers were brought before the criminal court of first instance in San Francisco Gotera, a small municipality in Morazán department. The charges were not brought by the Salvadoran Attorney General (Fiscalia), but by two NGOs – Fundacion Cristosal and Tutela Legal Maria Julia. The Attorney General initially claimed that the case was res judicata and that, therefore, it should be rejected. The trial judge, Guzman Urquilla, disagreed and let the proceedings continue. Read the rest of this entry…

 

France Intervenes in Mali Invoking both SC Resolution 2085 and the Invitation of the Malian Government – Redundancy or Legal Necessity?

Published on January 23, 2013        Author: 

Vidan Hadzi-Vidanovic is a lawyer in the Registry of the European Court of Human Rights. The views expressed in this contribution are those of the author and do not necessarily represent the views of the European Court of Human Rights and the Council of Europe.

On 11 January France commenced air-strikes against Malian rebel forces which are controlling two thirds of the Malian territory. It also commenced ground operations several days later. The French Foreign Ministry explained that it is acting upon the invitation of the Malian government. Nevertheless, it emphasized that the action is conducted “strictly in the framework of the United Nations Security Council resolutions”. The intervention came a day after the Security Council called for a “rapid deployment of the African-led International Support Mission in Mali (AFISMA)” which was authorized by Resolution 2085 (2012) to “take all necessary measures” for supporting Malian authorities in “recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups and in reducing the threat posed by terrorist organizations”.

Looking at the position of the French government and the formulation of the relevant provisions of Resolution 2085, one may rightfully wonder what the legal basis for the French intervention and the announced deployment of the Nigerian-led intervention forces actually is. Is it an intervention based on the invitation of the legitimate government of Mali, or an intervention based on the authorization of the Security Council, or are the two separate legal grounds mutually reinforcing?

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Kenya Invades Somalia Invoking the Right of Self-Defence

Published on October 18, 2011        Author: 

Vidan Hadzi-Vidanovic is a doctoral candidate at the University of Nottingham School of Law.

At a press conference held in Nairobi on 15 October 2011, the Kenyan ministers of defence and interior announced that Kenyan security forces will engage in military operations against the Al-Shabaab militants in Somali territory. They invoked Article 51 of the UN Charter as a legal basis for these actions and pledged that all measures taken in the exercise of the right of self-defence will be reported to the Security Council. Additionally, they invoked the right to hot pursuit, although it is not clear whether it was regarded as a part of the right to self-defence or as a self-standing right. The announcement comes after a number of incidents which involved the incursions of Al-Shabaab elements as deep as 120km inside Kenyan territory, and abductions of several foreign nationals.

At the time of the writing of this post, reports indicate that the border between Kenya and Somalia has been closed and that Kenyan troops are gathering in the border area, preparing to invade Somali territory. It has also been reported that Kenyan troops have already entered 100km deep into Somali territory by Monday evening seizing two Al-Shabaab controlled towns. The Somali representative at the UN suggested that the Transitional Federal Government (TFG) would see the incursion as a violation of Somali sovereignty while expressing some understanding for the Kenyan legitimate concerns.

Some Problems with the Kenyan Invocation of the Right to Self-Defence

According to Article 51, every state has an inherent right to defend itself by employing military means if it has been subjected to an armed attack. The traditional view—which still has a significant support—is that an armed attack must be attributable to a state.

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