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A War Crimes Trial That Needs More Attention

Published on November 15, 2018        Author: 
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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…

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The Situation of the Rohingya: Is there a role for the International Court of Justice?

Published on November 14, 2018        Author: 
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In April 2017, the UN Human Rights Council established the Independent International Fact-Finding Mission on Myanmar to investigate alleged human rights abuses by military and security forces. The Fact-Finding Mission issued an initial summary reportin August 2018, followed by a 444-page report of detailed findingsin September.

Among other things, the Fact-Finding Mission found that after an armed group called the Arakan Rohingya Salvation Army launched a series of small-scale attacks against government military outposts on 25 August 2017, a government campaign aimed at Rohingya communities in Rakhine State resulted in at least 10,000 deaths and caused 725,000 Rohingya to flee, mainly to neighbouring Bangladesh. The Myanmar authorities termed their actions “clearance operations” meant to eliminate a terrorist threat. The Fact-Finding Mission described a campaign of indiscriminate killing and maiming, rampant sexual violence, and widespread destruction of Rohingya villages—a “human rights catastrophe”, but one long in the making because of a history of state-sanctioned discrimination against the Rohingya, a Muslim minority in a predominantly Buddhist country.

The Fact-Finding Mission (which Myanmar refused to admit into its territory) concluded that the actions of Myanmar’s forces constituted crimes against humanity and war crimes. It also found sufficient evidence to warrant the investigation and prosecution of senior officials for the crime of genocide. Among other recommendations, the Fact-Finding Mission urged the UN Security Council to refer the situation to the International Criminal Court (ICC) (Myanmar is not a party to the Rome Statute) or to establish an ad hoc international criminal tribunal. (After the Fact-Finding Mission issued its August report, a Pre-Trial Chamber of the ICC determinedthat the ICC has jurisdiction over the alleged deportation of Rohingya individuals from Myanmar to Bangladesh, and possibly over additional other crimes; ICC prosecutor Fatou Bensouda has since announceda preliminary examination into the situation.) The Fact-Finding Mission also recommended targeted sanctions against government officials and an arms embargo. The Chair of the Fact-Finding Mission, Marzuki Darusman, addressed the Security Council last month (over the objections of China and Russia) to reiterate these conclusions. In the meantime, the UN Human Rights Council responded by establishing a mechanismto collect and preserve evidence of international law violations in Myanmar (discussed here).

The emphasis of the Fact-Finding Mission and the UN Human Rights Council on individual criminal accountability is unsurprising. Many other fact-finding missions and commissions of inquiry that have investigated large-scale human rights violations have been similarly focused—a reflection of the extent to which international criminal law has become the central or even dominant narrative of the international response to so many crises. Indeed, advocacy groups have long campaigned for an ICC-focused response to the Rohingya crisis, alongside the urgent need to provide humanitarian assistance to the thousands of Rohingya refugees now living in difficult conditions in camps across the border in Bangladesh. (A dealnegotiated by UNHCR and UNDP with Myanmar in May 2018 to facilitate the repatriation of the Rohingya has been widely criticizedand remains unimplemented.)

The increased focus on Myanmar in 2018 is to be welcomed. UN officials and some governments have already characterized the conduct of the Myanmar authorities as acts of genocide (see herehere, here, and here), and the reputation and credibility of Myanmar’s de facto leader, the Nobel peace laureate Aung Sung Suu Kyi, has seen a rapid and precipitous decline (see here, here, and here). Yet amidst all of these developments, the almost singular focus on an international criminal justice response to the plight of the Rohingya is striking. The idea of seeking legal accountability at the level of State responsibility has gone largely unmentioned, a further example of what Laurel Fletcher has called the “effacement of state accountability for international crimes”. In that vein, the remainder of this post will consider the prospects for a case against Myanmar at the International Court of Justice (ICJ). Read the rest of this entry…

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The Road Less Traveled: How Corporate Directors Could be Held Individually Liable in Sweden for Corporate Atrocity Crimes Abroad

Published on November 13, 2018        Author:  and
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On 18 October 2018, the Swedish Government authorized the Swedish Prosecution Authority to proceed to prosecution in a case regarding activities of two corporate directors within Swedish oil company Lundin Oil, and later within Lundin Petroleum, in Sudan (now South Sudan) between 1998 and 2003. The company’s chief executive and chairman could be charged with aiding and abetting gross crimes against international law in accordance with Chapter 22, Section 6 of the Swedish Penal Code. Charges of such kind carry a sentence of up to ten years or life imprisonment. The case has the potential of furthering accountability of corporate actors for their involvement in international crimes abroad.

Lundin’s alleged involvement in international crimes in South Sudan

Sudan was ravaged by a non-international armed conflict which lasted from 1983 until 2005, between the Government of Sudan and the Sudanese People’s Liberation Army (SPLA) – as well as a variety of other armed groups. Meanwhile, beginning with the signing of contracts in 1997, Lundin formed a consortium which carried out oil exploration and production in an oil concession area located south of Bentiu on the West Bank of the White Nile in Western Upper Nile/Unity State called Block 5A in the southern part of the country. According to a report by the European Commission on Oil in Sudan (ECOS), the oil exploration brought exacerbated conditions while setting off a battle for control of the disputed region, leading to thousands of deaths and the forced displacement of local populations – with the Nuer people being the most affected. Additionally, reported crimes against civilians by the Sudanese army as well as associated militias of both parties, include indiscriminate attacks, unlawful killing, rape, enslavement, torture, pillage and the recruitment of child soldiers. The consortium’s interaction with local counterparts has come under criminal investigation after the ECOS report was submitted to Swedish prosecutors in 2010. The long time span of the investigation is at least in part due to on-going conflict in the region in 2013, when the International Office of the Prosecutor had scheduled its visit to South Sudan. Furthermore, the case came with some political connotations since Carl Bildt, former Minister of Foreign Affairs of Sweden, had served as a member of the Board of Directors of Lundin from 2000 to 2006.

In the United States, a case comprised of a similar set of facts was brought by the Presbyterian Church of Sudan against the Republic of Sudan and Talisman Energy Inc., a Canadian oil company, which commenced its activities in the area one year after Lundin. The Court of Appeals for the Second Circuit held in a judgment of 2 October 2009 that the claimants had failed to establish that Talisman “acted with the purpose to support the Government’s offences”. Under the Alien Tort Claims Act (ATCA) the plaintiffs needed to show that “Talisman acted with the – purpose – (one could argue that such mens rea standard had been set unreasonably high) to advance the Government’s human rights abuses”. On 15 April 2010, the plaintiffs petitioned for a writ of certiorari to the Supreme Court, supported by an amicus curiae submitted by Earth Rights International on 20 May 2010, asking to revert the decision of the Second Circuit. On October 2010 the Supreme Court declined to grant certiorari and respectively to hear the appeal in this case. In contrast to the rather broad universal and extraterritorial jurisdiction provided for in the Swedish Penal Code, the Supreme Court decision in Kiobel v. Royal Dutch Petroleum, Co. remarkably restricted the application of the ACTA in cases involving allegations of abuse – outside – the United States by finding that presumptively it does not apply extraterritorially. Read the rest of this entry…

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Does the ICC Statute Remove Immunities of State Officials in National Proceedings? Some Observations from the Drafting History of Article 27(2) of the Rome Statute

Published on November 12, 2018        Author:  and
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Following oral hearings held in September, the Appeals Chamber of the International Criminal Court (ICC) is currently deliberating in Jordan’s Appeal of the Pre-Trial Chamber’s decision holding that it had failed to cooperate with the ICC by refusing to arrest and surrender Sudan’s President, Omar Al-Bashir, when he visited Jordan. Central to the determination of whether Jordan, a party to the ICC Statute, failed to comply with its obligations of cooperation under the Statute is the issue of whether Jordan was obliged to respect the immunity ratione personae that the Sudanese President would ordinarily be entitled to as a serving head of state.

As is well known, when the ICC seeks to exercise its jurisdiction over a state official who ordinarily possesses immunity under international law from foreign criminal jurisdiction, the question of immunity may, potentially, arise at two levels. First, the issue of international law immunity with respect to the ICC may possibly arise at the so-called ‘vertical level’, i.e in the relations between the ICC, on the one hand, and the accused person and his or her state, on the other. The question that arises here is whether the accused person (as a state official entitled to international law immunities) or his or her state, may plead those immunities before the ICC itself, such as to prevent the Court from exercising jurisdiction over him or her. Second, and more commonly, the issue of immunity will arise at the so-called ‘horizontal level’, i.e in the relations between a state that is requested by the ICC to effect an arrest or surrender, on the one hand, and the state of the accused person, on the other. Here, the question is whether a state that is requested by the ICC, to arrest or surrender the official of another state, may do so, where to do so would require the requested state to violate the immunities that the foreign state official ordinarily possesses under international law. In particular, the question at this horizontal level is whether there is something about the ICC’s request for cooperation that would mean that the obligations which a state ordinarily owes to another to consider inviolable the person of a serving foreign head of state no longer apply. This is the main question that the Appeals Chamber is called upon to resolve in the Bashir case. In this post, we do not propose to examine the range of arguments put to the Chamber on this question. Rather this post will consider one specific question that is critical to the Court’s assessment and to the more general question of how the ICC Statute affects the immunity of state officials.

The post considers whether the provision of the Rome Statute that removes immunity – Art. 27(2) – only removes immunity at the ‘vertical level’ (before the Court itself) or whether it does so at the ‘horizontal level’ (before national authorities) as well. In particular, the post throws new light on this question through an examination of the drafting history of that provision. Consideration of the drafting history shows that the drafters of the provision considered, throughout the period of elaboration of the Statute, that what would become Art. 27 was to have effect not just in proceedings before the ICC itself but also in national proceedings related to the ICC’s exercise of jurisdiction. Read the rest of this entry…

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Understanding the State Party Referral of the Situation in Venezuela

Published on November 1, 2018        Author: 
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Since 8 February 2018, the situation in Venezuela has been the subject of an ongoing preliminary examination by the Office of the Prosecutor of the International Criminal Court. On Wednesday 26 September 2018, however, a coalition of States Parties to the Rome Statute composed of Argentina, Canada, Chile, Colombia, Paraguay, and Peru jointly submitted a referral of the situation in Venezuela to the Prosecutor. In this referral, it was requested that the Prosecutor open an investigation into the commission of crimes against humanity allegedly committed in Venezuela under the government of President Nicolás Maduro, beginning on February 12, 2014. This referral, the ninth referral received by the Prosecutor, is not only the first referral to be submitted by a “coalition” of States Parties, but also one (directly) concerning a situation occurring on the territory of another State Party.

Pursuant to article 13 and 14 of the Rome Statute, a referral by a State Party is one of the three triggering mechanisms under which the Court may exercise its jurisdiction. It represents a formal request by a State Party (or in this case States Parties) for the Prosecutor to initiate an investigation on crimes allegedly committed in a situation. Furthermore, it gives the referring State Party the opportunity to present supporting documentation regarding the situation in question. It does not, as explained by the Prosecutor in her response to the Venezuela referral, automatically lead to the opening of an investigation. Instead, as a triggering mechanism, it leads the Prosecutor to apply the statutory criteria to assess whether the referred situation warrants investigation. This process, otherwise referred to as a preliminary examination, entails an evaluation of the criteria set out in article 53(1) of the Statute. In the event that the Prosecutor decides to initiate an investigation on a situation referred to her by a State Party, she is not required to seek authorisation from the Pre-Trial Chamber to proceed.

The legal effect of a State Party referral is therefore limited to three key aspects: it can trigger a preliminary examination by the Prosecutor; it can act as a formal submission of new information vis-à-vis article 14(2); as well as allowing for the initiation of an investigation (if the Prosecutor decides so) without the need for judicial authorization by the Pre-Trial Chamber.

In applying these aspects to the Venezuela referral, it appears that its legal effect is rather limited. Read the rest of this entry…

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Looking for Middle Ground on the Immunity of Al-Bashir? Take the Third ‘Security Council Route’

Published on October 23, 2018        Author: 
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On 10-14 September, the Appeals Chamber (AC) of the International Criminal Court (ICC) held hearings in the appeal of Jordan against the decision of Pre-Trial Chamber (PTC) II entitled ‘Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender o[f] Omar Al-Bashir’ of 11 December 2017’. As Talita De Souza Dias aptly showed in her recent post, one of the most debated issues during the hearings was whether the Security Council (SC) can implicitly waive the immunities of non-party States’ high-ranking officials when it refers a situation to the ICC. I agree with Talita’s findings on the permissibility of implicit derogations from immunities but I will argue that it is not Article 27(2) that renders the immunity of Al-Bashir inapplicable at the domestic level. Rather, it is the effect of Article 89 (1) on ‘Surrender of persons to the Court’ that makes his immunity of no avail before a domestic jurisdiction enforcing the ICC arrest warrant. In making this argument, I will propose a variant of the ‘Security Council Route’ that is different from those hitherto recognised in the literature or by the ICC.

Readers will recall that there are two main theories regarding the (in)applicability of immunities in domestic proceedings for arrest and surrender to the ICC of a state official ordinarily entitled to international law immunities. First, there is the theory that there is a customary exception to the immunity of heads of States for ‘proceedings before certain international criminal courts’. Read the rest of this entry…

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The Duty to Investigate Civilian Deaths in Armed Conflict: Looking Beyond Criminal Investigations

Published on October 22, 2018        Author: 
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Writing in the Times last Friday, General David Petraeus, former commander of US Central Command, added his voice to the familiar refrain that ‘European human rights law’ has given rise to the ‘judicial pursuit of British soldiers and veterans’. Petraeus may be correct in stating that the British emphasis on criminal investigations would never obtain in the US, but looking at some of the legal issues behind his claims undercuts his assumption that ‘restoring the primacy of the law of armed conflict’ would remove scrutiny over the actions of military personnel on the battlefield.

A year after the winding up of the Iraq Historic Allegations Team (IHAT), the controversies over accountability for the UK’s military action in Iraq certainly show few signs of going away. Sections of the press continue to mount a vociferous campaign against the residual work of the Iraq Fatality Investigations (IFI), while calls for investigations into alleged civilian fatalities from more recent UK military action over Mosul are growing.

I reflected on this experience in the course of completing a chapter on international legal obligations to investigate civilian deaths for a new book just published, The Grey Zone: Civilian protection between human rights and the laws of war. The many years of investigations in the UK have arguably resulted in a failure either to deal effectively with outstanding allegations or to deliver justice to many Iraqi victims. This perception may of course be influenced by continuing political disagreement over international military action in Iraq, but it also stems from the particular approach the UK has taken to investigating violations, including the heavy reliance on criminal law. In the current generation of devastating air campaigns, what lessons can be learnt?

UK practice

Beside the need to address public concern about the conduct of military action in Iraq, UK practice on investigations has been driven largely by duties under the International Criminal Court Act 2001 and the Human Rights Act 1998.

The UK’s approach was established early in Iraq (and later applied to UK operations in Afghanistan), with all incidents involving civilian casualties being referred for investigation to the Service Investigation Branch of the Royal Military Police. Comparing US military investigations with those of other states in Naval Law Review in 2015, Commander Sylvaine Wong of the US Navy JAGC noted that the UK had, ‘as a matter of domestic policy, taken the most dramatic steps to rely solely on criminal law enforcement investigations for incidences of civilian casualties.’ Read the rest of this entry…

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The ICC Pre-Trial Chamber’s Reading of “or” in the Myanmar Jurisdiction Ruling: On the Relevance of Linguistics to Interpretation

Published on October 2, 2018        Author:  and
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Linguistics continues to be a blind spot for international lawyers. Despite the self-perception that lawyers work predominantly with language, an in-depth inquiry into the actual science dealing with the phenomenon of language remains, to a large extent, a desideratum. Linguistics can, however, be very helpful in understanding the intended meaning of a word or phrase, as we will try to argue in this post. A good example of its usefulness and significance is provided in the recent decision of the ICC Pre-Trial Chamber on the Prosecutor’s request for a ruling on whether the Court may exercise jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh. In paras 52 ff., the Chamber had to interpret Article 7(1)(d) of the Rome Statute to establish whether the Article embodies either a single or two separate crimes, in light of the use of the word “or”. As will be be shown, the resulting interpretation of the word “or” demonstrates the usefulness of linguistic knowledge from which international law could draw in the future.

We hope that we are not seen as using a case featuring harrowing events as a mere façade for legal-intellectual exchanges. We suggest that a narrow technical approach is justified, particularly, in such important cases where so much depends on interpretation (e.g., the exact contours of jurisdiction of an international court).

Linguistics, semantics, pragmatics

International lawyers’ relationship with linguistics has been somewhat selective. In recent writing, some have used elements of corpus linguistics or discourse analysis to gain insights into international law. However, other modern aspects of studying meaning as a phenomenon in language seem to continuously escape international lawyers’ attention. For example, there is a certain tendency to refer to Wittgenstein’s Philosophical Investigations (1953) and his argument that words are defined by how they are used without putting his work in context (see e.g. recently Klabbers, International Law, Cambridge University Press 2017, p. 56). The progress that linguistics has made in the decades following the 1950s, in particular with regard to the semantics-pragmatics divide, is left aside as a consequence. Read the rest of this entry…

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An Independent Mechanism for Myanmar: A Turning Point in the Pursuit of Accountability for International Crimes

Published on October 1, 2018        Author: 
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Last week, the Human Rights Council voted to establish an “independent mechanism” to collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights in Myanmar.

To those following international efforts to bring perpetrators of war crimes, crimes against humanity and genocide to justice, this watershed moment could herald a paradigm shift in how atrocities in situations such a Syria, Myanmar and Yemen are addressed.

The need for such a mechanism, at its core, stems from the need to bolster investigations and trials into the most serious crimes – both at the national and international levels.

Much has been written about the need to leverage the impact of the International Criminal Court in situations where it has jurisdiction, including a recent Human Rights Watch report, Pressure Point: The ICC’s Impact on National Justice – Lessons from Colombia, Georgia, Guinea, and the United Kingdom, which takes a stab at addressing this question.

The report proposes a range of measures by international partners of the International Criminal Court, international organizations, and civil society groups to assist national authorities to carry out effective prosecutions of international crimes, such as legislative assistance, capacity building, advocacy and political dialogue to counter obstruction.

These measures, however, overlook the more technical and evidentiary challenges that forestall national proceedings into war crimes and crimes against humanity. Most national judiciaries either lack the full capacity to conduct war crime trials in accordance with universally adopted standards, are too strapped for resources to comb through voluminous materials from human rights NGOs or victim groups regarding widespread atrocities, or lack the legal expertise to qualify criminal conduct as international crimes.

Read the rest of this entry…

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The ‘Security Council Route’ to the Derogation from Personal Head of State Immunity in the Al-Bashir Case: How Explicit must Security Council Resolutions be?

Published on September 19, 2018        Author: 
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Last week, the Appeals Court of the International Criminal Court (ICC, the Court) held hearings in relation to Jordan’s Appeal from a decision of Pre-Trial Chamber (PTC) II holding that it has failed to cooperate with the Court in the arrest and surrender of Sudan’s President, Omar Al-Bashir. As is well known, Al-Bashir is presently subject to an ICC Arrest Warrant for committing war crimes, crimes against humanity and genocide in Darfur, following the referral of the situation by the Security Council (SC) to the Court. He has made a series official visits to Jordan and other states parties to the ICC Statute (the Rome Statute). However, none of those states has dared to arrest him to date. Their principal argument is that Al-Bashir enjoys personal immunities from foreign domestic jurisdiction under treaties and customary international law, that these are not covered by the removal of immunity in Art. 27(2) of the Rome Statute, and are thereby safeguarded by Art. 98 of the Statute.

The hearings, together with the Appeals Chamber’s decisions leading to them, represent a unique moment in the history of international criminal law for two main reasons. First, this is the first time in which the ICC has invited, accepted and heard submissions from leading international law scholars as amici curiae, as well as engaged in direct (and sometimes heated!) oral discussions with them. Secondly, some of the legal and policy issues discussed in the hearings are of fundamental importance to international criminal law and public international law in general. They include questions such as the extent of the SC’s powers, a possible customary international law exception to personal immunities before international criminal tribunals, and the practical importance of preserving such immunities for international peace and security. Thus, watching the hearings online has certainly kept some of us entranced during the entire week.

However, aside from the special role attached to academic commentary and from the systemic issues discussed in the hearings and in the written observations, one question seems to have been at the heart of the debates on Al-Bashir’s immunities. This question is whether the SC can implicitly derogate from personal immunities otherwise applicable under treaties or customary international law, or whether it must do so explicitly. Indeed, all parties and participants seem to agree that the SC has the power to displace personal immunities and other rules of treaty or general international law, except for jus cogens norms. Yet they disagree as to how clear the Council must be in order to do so. Read the rest of this entry…

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