December 2019

Rachel Grand - Junior Research Associate PILPG-NL

Monthly News Update: International Criminal Court (ICC) – December 2019

The Office of the Prosecutor of the ICC released its report on preliminary examinations this month. Another major development was Prosecutor Bensouda’s determination that an investigation could be commenced in Palestine and her request for a ruling on the scope of the ICC’s territorial jurisdiction. December 2019 also saw the conclusion of the 18th session of the Assembly of States Parties.

AFRICA

Central African Republic | Yekatom and Ngaissona case: ICC Pre-Trial Chamber II confirms part of the charges of war crimes and crimes against humanity and commits suspects to trial

Pre-Trial Chamber II unanimously decided to partially confirm the charges of war crimes and crimes against humanity brought against Yekatom and Ngaissona.  [December 11, 2019]

Sudan | Statement to the United Nations Security Council on the Situation in Darfur, pursuant to UNSCR 1593 (2005)

The Prosecutor updated the United Nations Security Council on the status of the Sudan investigation and outstanding arrest warrants.  The Prosecutor highlighted Sudan’s transition process, the Council’s support, and the need for future progress towards justice for Sudan. [December 18, 2019] 

ASIA

Afghanistan | Hague International Court Hears Afghanistan Probe Appeal

The Appeals Chamber held hearings on the appeal against an earlier decision to reject the Prosecutor’s request to open an investigation into Afghanistan. [December 4, 2019] 

Palestine | Statement of ICC Prosecutor, Fatou Bensouda on the conclusion of the preliminary examination of the Situation in Palestine, and seeking a ruling on the scope of the Court’s territorial jurisdiction

The Prosecutor announced the conclusion of the preliminary examination into the situation in Palestine.  She determined there is a reasonable basis to proceed with an investigation into the situation in Palestine, but requested a ruling on the scope of the territorial jurisdiction of the ICC in Palestine from Pre-Trial Chamber I.  [December 20, 2019] 

ICC

The Prosecutor of the International Criminal Court, Fatou Bensouda, Issues Report on Preliminary Examination Activities (2019)

The Prosecutor published her annual report on Preliminary Examination Activities.  The report details the nine situations under consideration for possible investigation from the past year and plans for the upcoming year.  [December 5, 2019]

 Assembly of States Parties Concludes its Eighteenth Session

The Assembly of States Parties took place in The Hague December 2nd through 6th.  During the 18th Session of the ASP they held elections, general debate, and side events.  The Assembly also adopted seven resolutions and the 2020 program budget for the Court.  [December 6, 2019]

December 2019

Raghavi Viswanath & Erez Roman - Junior Research Associates - Public international law and policy group - Netherlands office

Monthly News Updates: Domestic Prosecution of International Crimes - December 2019

December 2019 was rather successful for universal jurisdiction, with a Belgian court issuing its first conviction for genocide and Uganda issuing an arrest warrant against former Sudanese President Omar Al-Bashir.  This post provides an overview of similar developments in domestic prosecutions of international crimes.

EUROPE

The Netherlands | Appeals court convicts ex-Iraqi High Tribunal judge

The Hague Appeals Court convicted ex-Iraqi High Tribunal Judge (Mr. “A. K.”) to 66 months imprisonment for issuing a false international arrest warrant.  The warrant, issued against his son in law and brother, alleged a murder and/or genocide in Iraq. [December.18, 2019].

Belgium | Former Rwandan civil servant convicted of genocide 

Fabien Neretse, a former Rwandan senior civil servant, was found guilty of genocide by a Belgian court.  The septuagenarian was found guilty of the war crime of killing at least eleven people in Rwanda in 1994.  He was also found guilty of committing genocide against Tutsis in Rwanda, a first for Belgian courts. He received 25 years in prison. [December 20, 2019]. 

United Kingdom | Judge Dismisses Torture Charges Against Charles Taylor's Ex-wife

Agnes Taylor, the ex-wife of the jailed former Liberian president Charles Taylor, is to be freed from prison after an Old Bailey judge dismissed a series of torture charges against her.  The prosecution, which related to offences allegedly committed during the west African state’s civil war in 1990, had been repeatedly delayed following several years of legal argument that eventually reached the UK’s supreme court. [December 6, 2019]

France | Genocide: French Justice Launched New Investigations on 12 Rwandans

 France has launched new investigations against 12 Rwandan genocide suspects.  The "crimes against humanity" section of the national prosecutor's office opened these investigations against individuals whom France refused to extradite to Rwanda. [December 6, 2019].

Bosnia and Herzegovina | One person accused of crimes against humanity during the war in Bosnia and Herzegovina

The Court of Bosnia and Herzegovina confirmed, on November 28, 2019, an indictment in the case of Malko Koroman, charging the accused Malko Koroman with the commission of the criminal offense of Crimes against Humanity under Article 172(1) h) of the Criminal Code of Bosnia and Herzegovina (CC BiH), as read with Article 180 (1) of the CC BiH.  [December. 6, 2019].

LATIN AMERICA

Guatemala | Guatemala to Try More Former Top Military Officials for Maya Genocide

Guatemala’s human rights prosecutor indicted another former top military official for genocide and crimes against humanity committed during the bloodiest phase of the Central American country’s 36-year civil war.  A military operations chief under deceased Guatemalan dictator Efrain Rios Montt, Luis Enrique Mendoza Garcia will be tried in March for his role in an operation in the early 1980s that killed at least 1,771 Maya Ixil and displaced thousands. [November 29, 2019].

AFRICA 

Uganda | Ugandan court issues arrest warrant against Bashir 

The High Court of Uganda issued an arrest warrant against former Sudanese President Omar al-Bashir. The High Court also faulted Uganda for failing to arrest Bashir while in Uganda in 2016 and 2017 on charges of crimes against humanity and war crimes. [December 19, 2019].

 Democratic Republic of Congo | Court sentences FADRC colonel to five years for crimes against humanity

A Congolese court sentenced a former FADRC military colonel Safari Kateatea Amos to 5 years in prison for crimes against humanity. The Court established the murder, rape, torture and other inhumane acts committed by the battalion under his command. His responsibility as a superior was recognized, but not his direct involvement in the commission of the crimes.  [December19, 2019].

December 2019

By Kelly Van Eeten and Francisca De Castro - Junior Research Associates PILPG-NL

Monthly News Update: Southern Cameroons – December 2019

December 2019 saw the Cameroonian parliament grant special status to two English-speaking regions to try in an attempt to calm the separatist insurgency. The UN Office for the Coordination of Humanitarian Affairs also lamented the insufficient funding for humanitarian response in Cameroon, and urged actors to work towards ensuring safe passage for humanitarian actors. This post outlines some of these developments.

Rebels shoot at passenger plane

An airplane from Cameroon Airlines was shot while landing. The bullets were heard and seen by the passengers, but no one got hurt.  One of the separatist leaders, Cho Ayaba, said that airplanes carried military personnel and weapons and that he had warned that planes could be shot at if they do not provide flight schedules ahead of time.

Underfunding and security issues revolving humanitarian work 

 According to the Office for the Coordination of Humanitarian Affairs (‘OCHA’) found that 175.3 million dollar was insufficient to fund humanitarian aid in Cameroon resulting in Cameroon remaining one of the most underfunded countries in Africa. The OCHA for the North-West and South-West regions also stated that they are concerned about a growing amount of misinformation and fake news about humanitarian actors. They urged all actors involved to ensure safe passage for aid workers and to respect the neutrality of humanitarian response. 

When it comes to the safety of aid workers, the recent abduction and killing of an aid worker of a local NGO is a disturbing example of the current situation on the ground. 

Measles epidemic

In the last three years the  measles affected regions in Cameroon went up from 7 to 34.  Cameroon is among the countries with the most cases of measles, only 71 percent of the children in Cameroon were vaccinated according to numbers from 2018. 

The current situation has been described by health experts as a tragedy. Nonetheless, this can be prevented with vaccines. 

Special status for Anglophone regions in Cameroon

Cameroon’s parliament granted special status to two English-speaking regions in an attempt to calm the separatist insurgency.  The special status also includes schools and the judiciary system. However, the separatists reacted stating only independence would satisfy them.

Freedom of the press in Cameroon 

The Committee to Protect Journalists stated that Cameroon is among the worst nations in the world for jailing journalists.  One of the seven journalists detained in Cameroon is serving a 15-year sentence on anti-state charges and false news.  The Committee to Protect Journalists stated that this is related to his campaign for autonomy for the Anglophone regions. 

Basis and Implications of the ICC’s ruling against Myanmar

By: Tanushree Nigam, JUNIOR RESEARCH ASSOCIATE, PILPG-NL

In a major decision, the International Criminal Court ruled on September 6, 2018 that the Court may exercise jurisdiction over the crime of alleged deportation of the Rohingyas from Myanmar to Bangladesh.  The Pre-Trial Chamber accepted the OTP’s argument that the Court may exercise jurisdiction over the crime of cross border deportation of Rohingyas even though the alleged crime had been committed in Myanmar which is not a State Party.  The Pre-Trial Chamber stated that this could be done as some “elements of the crime” had taken place in the territory of Bangladesh, which is a State Party.  This judgment makes a towering statement that ICC’s jurisdiction is objective rather than subjective in nature.  In this post, I discuss the basis and implications of the Chamber’s findings.

The Pre-Trial Chamber deemed that it had jurisdiction as at least one element of the crime of deportation took place on the territory of Bangladesh which is a State party.  Article 12(2)a of the Rome Statute confers jurisdiction on the ICC if “one or more (of the following) States are parties to the Statute…a) The State on the territory of which the conduct in question occurred.” The Chamber relied on the textual interpretation of the word ‘conduct’ declaring that it is a broad term that encompasses the consequences of the act.  The crime of deportation, in particular, is trans-boundary in nature.  In the absence of the element of crossing of State boundaries, the crime is one of forcible transfer and not deportation.  Hence the expulsion of Rohingya refugees to the territory of Bangladesh, which is a State party, constituted an important element of the crime of deportation, and the Court has jurisdiction over the dispute. 

The jurisdiction of the Court was also invoked by reliance on the “effects doctrine”.  Even though this was not stated in explicit terms, the Chamber referred to the case United States v. ALCOA in which a US Federal Appellate Court first enunciated this doctrine.  Till 2018, over 1 million Rohingya refugees had sought refuge in Bangladesh, which is already one of the most densely populated regions of the world.  The Court implied that even if the elements of the crime were not present in its territory, the effects of the crime of deportation did manifest in Bangladesh, which is a State party.  This aspect allowed the Court to conclude that it has jurisdiction over the dispute. 

The Pre-Trial Chamber also relied on the penal legislations of various States, (including the interpretation offered by the Supreme Court of Bangladesh in Abdus Sattar v. State).  These legislations declare that the exercise of criminal jurisdiction by a State requires the commission of one of the legal elements/parts of the crime on its territory.  It also relied on the penal code of Myanmar that grants authority to the Burmese Parliament to create laws that may try persons for crimes committed beyond its territory.  The judges supplemented this argument by stating that the object and purpose of the Rome Statute grants to it the power “to assert jurisdiction over the most serious crimes of concern to the international community”…“on the basis of approaches to criminal jurisdiction that are firmly anchored in international law and domestic legal systems.”

The Case of the Republic of Korea (paragraph 38) had presented a similar proposition.  In that case also the Office of the Prosecutor had relied on the doctrine of objective territoriality to establish jurisdiction of the Court.  The case concerned cross-border firings by unidentified persons from North Korea, which is not a State party  to the territory of South Korea, which is a State party.  South Korea submitted that the Court had jurisdiction over the dispute because the crime culminated on the territory of a State party.  The case was subsequently closed as the shootings had been directed at legitimate military targets.  Nevertheless, the case reveals that the  argument of objective territorial jurisdiction of the Court is not novel and has been long accepted.

This ruling may have a significant impact on the course that the ICC may adopt in other similar situations. Countries in Asia and Africa that are not signatories to the Rome Statute are witnessing movement of persons on a large scale to State Party territories.  Would the ICC also have jurisdiction over these cases?  What about movement from these countries onto the high seas?  Critics of the Court have also raised questions about undermining State sovereignty and consent, which in the opinion of many forms the basis of the Rome Statute regime.  This ruling is unlikely to be the final point of this developing area of international law. 

November 2019

Rachel Grand - Junior Research Associate PILPG-NL

Monthly News Update: International Criminal Court (ICC) – November 2019

In the past month, the International Criminal Court (ICC) authorized the Office of the Prosecutor to investigate alleged crimes against the Rohingyas. It also issued the long-awaited sentencing decision in the Bosco Ntaganda case.

Africa

Libya | ‘Violence, Atrocities and Impunity’ reign throughout Libya, ICC Prosecutor tells UN Security Council

The ICC Prosecutor spoke to the UN Security Council about how even after nearly a decade of working in Libya, the Court still sees the country entangled in a “cycle of violence, atrocities and impunity.”   This statement serves as a plea to the international community to end the Libyan conflict.  [November 6, 2019]

Democratic Republic of Congo | Ntaganda handed 30-Year prison sentence

The ICC judges sentenced Bosco Ntaganda to 30 years in prison.  This is the highest penalty the Court has ever given.  [November 7, 2019]

Congo | ICC confirms one year jail sentence, fine for Congo’s Bemba

Appeals judges confirmed Bemba’s one-year prison sentence and 3000,000-euro fine for interfering with witnesses who testified in his crimes against humanity and war crimes trials.  [November 27, 2019]

Europe

United Kingdom | International Criminal Court may investigate UK ‘war crimes cover-up’

According to news reports, the UK covered up instances of their troops killing civilians in Iraq and Afghanistan.  If the ICC authorizes the Prosecutor to open an investigation into these alleged crimes, it would be its first investigation into crimes committed by nationals from the UK.  [November 18, 2019]

Asia

Bangladesh/Myanmar | International Criminal Court authorizes investigation into crimes against Rohingya 

Pre-Trial Chamber II ruled that the Prosecutor can proceed with an investigation into the alleged crimes against humanity perpetrated against Myanmar’s Rohingya Muslim minority causing them to flee to Bangladesh.  [November 14, 2019]