Admitting evidence of fact-finding missions: To be continued?

By: Raghavi Viswanath, Junior Research Associate, PILPG-NL

The provisional measures hearing in the case between the Gambia and Myanmar at the International Court of Justice (‘ICJ’) concluded on December 12, 2019.  The Gambia, both in its written application as well as oral arguments at the Court, extensively relied on reports prepared by fact-finding missions.

A majority of evidence was derived from the August 2018 and September 2019 of the Fact-Finding Mission set up by the UN Human Rights Council in 2017 (‘FFM’), to investigate the circumstances that culminated in the alleged human rights violations by the military in Myanmar. It was created with a view of  “ensuring full accountability for perpetrators and justice for victims”. The FFM was later replaced with an Independent Investigative Mechanism for Myanmar (‘IIMM’). Compared to the FFM, the IIMM has a more explicit mandate to prepare files for criminal prosecution.

Myanmar, in its oral arguments, criticized the methodology of the fact-finding mission. Myanmar also called out the credibility of the report on the basis that the Special Rapporteur was “not an international author”.  This is suggestive of deeper concerns about the credibility of evidence prepared by fact-finding missions. Although the UN Office of the High Commissioner of Human Rights (‘OHCHR’) has collated best practices and made recommendations for fact-finding missions, judicial literature on this point is still unsettled.

The jurisprudence of the ICJ reveals that the Court has been more deferential towards findings of adversarial bodies. By way of illustration, in the Armed Activities case, the ICJ gave special attention to the evidence collated by the Porter Commission, a judicial inquiry instituted by the government of Uganda. Similarly, in Bosnia-Herzegovina v. Serbia-Montenegro and Croatia v. Serbia, the Court accepted the International Criminal Tribunal for Yugoslavia’s findings of genocidal intent [Bosnia v. Serbia, para.238; Croatia v. Serbia, para.136]. In Armed Activities, the Court went so far as to note that such findings were admissible because they were obtained by “examination of persons directly involved, and who were subsequently cross-examined by judges” [para.61]. 

This is not to say that other types of third-party findings of fact or law are not admissible at all.  The Court has, on multiple instances, also accepted evidence analyzed by the UN Secretary-General and special rapporteurs. Notably, the Court assigned probative value to the 1999 Fall of Srebrenica report by the UN Secretary-General [Bosnia v. Serbia, para.230]. A closer examination of the case-law reveals that the Court has attempted to articulate guiding principles to determine the probative value of third-party reports. It has explained that the value of evidence depends on the source of the evidence (is it partisan or not?), on the kind of information conveyed (is it incriminating?), and the process using which it was collected (was it obtained through careful cross-examination?) [Bosnia v. Serbia, para.227]. 

The Court’s reliance on third-party findings has come under scrutiny. Firstly, some commentators have called it a ‘delegation of fact-finding responsibilities.’  Secondly, on a more granular level, the Court’s guidance on the markers of credibility appear to be insufficient.  For one, the case law does not discuss issues of duplicity, the difference between documentary and oral evidence, or delineate what sort of expertise is relevant for authors and investigators. Thirdly, in its assessment of independence, the Court usually assumes independence and neutrality when the mission is commissioned by the UN.  However, this is arguably a problematic trend because it overlooks how Special Rapporteurs often have to maintain contacts with the media, and sometimes even derive data from the media [Cumaraswamy Advisory Opinion, para.53].  Therefore, their impartiality is not always defensible.

The question of credibility will come into question again in the impending International Criminal Court (‘ICC’) proceedings, concerning alleged crimes against humanity against the Rohingyas.  Considering that the ICC is a criminal tribunal, it adheres to a higher threshold of standard of proof of authenticity, and methodology than even the ICJ.  If the Court’s articulation of a higher evidentiary burden of the Prosecution in Gbagbo and Blé Goudé is any indication, it is possible that the jurisprudence on this issue is about to witness significant developments. 

January 2020

January 2020 - Southern Cameroon Updates

By: Kelly Van Eeten & Francisca De Castro, Junior Research Associates, PILPG-NL

THIS POST COLLECTS UPDATES FROM THE PAST MONTH CONCERNING RELEVANT DEVELOPMENTS IN SOUTHERN CAMEROON. THE INFORMATION IS DRAWN FROM LOCAL AND INTERNATIONAL ONLINE SOURCES. 

Upcoming local elections on February 9th 

The government of Cameroon has warned that it  will deal “firmly” with those planning to disrupt the February 9 elections, amid threats from separatists that they will stop voting in the country's two English-speaking provinces.  There are already a lot of security forces in the Anglophone regions - with 800 more military police officers being sent to secure two towns in the North-West and South-West provinces.  The military police of Cameroon has been accused of brutality and disproportionate use of violence in the past.  The reinforcement of security in Anglophone regions came right after the speech of the head of State on December 31, 2019 in which he urged separatists to lay down their arms. 

The “high command” of the Ambazonians have announced five days of lockdown across North-West and South-West regions of Cameroon. It will begin February 7, two days before the scheduled elections, and is said to last until February 12.  The announcement specifies that “any person coming from outside the cities and villages will be considered as an enemy and treated as such”.

Cameroonian soldiers go on trial over shooting of women and children

 The trial of seven Cameroonian soldiers accused of participating in the killing of two women and two children has begun behind closed doors, after a video of the incident sparked an international outcry.  In the video, Cameroon soldiers execute two women, one with an infant on her back, from behind while accusing them of being part of Boko Haram.  

At least 50 people killed near Cameroon border in Boko Haram attack

The attack occurred on December 22, but since the area is so remote it took some time before it was in the news.  The Boko Haram militants attacked local fishermen, and killed over 20 Cameroonians. A local Mayor, Ramat, said the area had become a hotspot for Boko Haram attacks since Chadian soldiers stopped patrolling it.  The Multinational Joint Task Force, a five-nation regional military force from the countries of the Lake Chad Basin, was supposedly too ill-equipped to stop the attacks.

Cameroon: the Anglophone crisis in the centre of a French parliamentary mission

French deputy members were in Cameroon to investigate the socio-political situation in the North-West and South-West regions.  They were in Cameroon from January 14-17th to meet with the Cameroon authorities, civil society organizations as well as political parties.

This visit comes after parliamentarians accused France for not taking a clear stance on the conflict in the Anglophone regions. On December 16, 2019 the French deputy Sébastien Nadot accused the French government of boycotting a hearing on the Anglophone crisis at the United Nations.

Abuse of Anglophone villagers by separatists 

Certain communities in Cameroon’s English-speaking regions have attacked camps belonging to separatist fighters, whom they accuse of destroying civilian homes, looting and killing villagers.   The rebels have confirmed that some of their fighters have committed abuses. 

In Marumba Botunda, of the Mémé department, an Ambazonian general was killed by his companions.  The “Divine General” was killed by combatants who accused him of terrorizing and extorting the civilian population.  The general’s attitudes had long caused tension within the movement and it has been reported this played a part in his death. 

January 2020

January 2020 - Domestic Prosecution of International Crimes Updates

By: Raghavi Viswanath & Erez Roman, Junior Research Associates, PILPG-NL

This month saw the start of many trials of international crimes in jurisdictions such as the Netherlands and the Central African Republic.  Other jurisdictions like Bosnia, Kosovo, and El Salvador have charged individuals for committing international crimes. This post compiles some of these developments relating to universal jurisdiction.  The post canvasses both national and international news sources.

EUROPE

Bosnia-Herzegovina | Bosnian Serb Policeman’s Crimes Against Humanity Conviction Upheld

The appeals chamber of the Bosnian state court has confirmed Mico Jurisic’s sentence of 11 years in prison for war crimes including involvement in several murders in the Prijedor area in 1992.  Jurisic was found guilty of participating in the murders of two Bosniaks in the village of Carakovo, as well as the killings of two others.

He was also convicted of the crime of attempting to kill a group of Bosniak and Roma civilians by shooting at them while they were running away, as well as inhumane treatment [January  9, 2020].

Kosovo | Ljuban Ecim is charged with committing Crimes against Humanity

In the case against Ljuban Ećim, who is charged with committing Crimes against Humanity in Kotor Varoš and the surrounding area, the Prosecutor’s Office of BiH formally proposed the summoning of 261 witnesses and provided about 1450 pieces of material evidence, as well as the Record on Questioning of the Suspect [January 26, 2020]

Netherlands | War crimes trial of Ahrar al-Sham commander begins

Another war crimes & terrorism trial has begun in the Netherlands.  This time the case concerns Ahmad al Y. from Syria, who was allegedly a commander of Ahrar al-Sham and is alleged to have posed with a dead body in a humiliating way on social media [January 15, 2020]

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ASIA

Bangladesh | Supreme Court confirms death sentence for Qaisar

The Supreme Court of Bangladesh  upheld the death sentence of Syed Mohammad Qaisar for crimes against humanity committed during the 1971 Liberation War. Qaisar, a former state minister of the Jatiya Party in Bangladesh, had appealed the conviction and sentence given to him by Bangladesh’s now defunct International Crimes Tribunal-2 in 2014 [January 14, 2020].

AFRICA

Central American Republic  | Trial of anti-Balaka leaders begins

The trial of several anti-Balaka militia leaders, including Pino Pino and Béré Béré, has opened in Bangui.  They are being prosecuted for war crimes and crimes against humanity for abuses committed in Bangassou, including the murder of six UN peacekeepers [January 15, 2019].

NORTH AMERICA

 The United States of America | Ex-warlord seeks overturning of conviction

A Delaware man serving a 30-year prison term for hiding his past as a brutal Liberian warlord to gain entry into the United States urged a federal appeals court in Philadelphia to overturn his conviction and sentence.  Mohammed Jabateh’s lawyers argued that their client may have committed numerous murders, rapes, and acts of enslavement, torture and ritual cannibalism during the first Liberian civil war — but the crimes did did not amount to genocide. On this basis, they sought an overturning of the conviction [January 21, 2020]

SOUTH AMERICA

El Salvador | Salvadoran general admits to infamous 1981 massacre

Juan Rafael Bustillo, a former commander of the Air Force, told a court that the elite Atlacatl Battalion carried out the El Mozote massacre in eastern El Salvador in which unarmed villagers were slaughtered.  According to a U.N. report, soldiers tortured and executed over 1,000 residents of El Mozote and surrounding hamlets in the Morazan department, 180 km (110 miles) northeast of San Salvador, as they searched for guerrillas in December 1981.  At a court hearing in the eastern town of San Francisco Gotera in Morazan, Bustillo testified he had had no part in the operation which he said was conducted at the behest of Colonel Domingo Monterrosa, commander of the feared Atlacatl Battalion [January 25, 2020].

January 2020

January 2020 - International Criminal Court Updates

BY: Rachel Grand, Junior Research Associate, PILPG-NL

January marks the beginning of the judicial year of the ICC.  This month, the date was set for the Al Hassan trial, which will take place in the summer of 2020.  The Prosecutor also issued statements on the situation in Guinea and Colombia.  

AFRICA

Mali | Al Hassan Case: Trial to Open on 14 July, 2020

Trial Chamber X scheduled the opening of the trial of The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud for July 14, 2020.  Additionally, it decided the Prosecution will present evidence on August 25, 2020. [January 6, 2020]

Guinea | Statement of ICC Prosecutor Regarding the Situation in Guinea

The Prosecutor said, the “construction of the new courtroom in Conakry is an important step towards holding long-awaited trial and to see justice done.”  She went on to say that her office will continue to closely follow and support Guinea’s complementarity efforts. [January 23, 2020]

SOUTH AMERICA

Colombia | The Office of the Prosecutor Concludes Mission to Colombia

The Prosecutor conducted a mission to Colombia to engage in constructive discussions with Colombian authorities about the progress of national proceedings following the 2012 interim report on the situation.  The assessment was aided by representatives from international organizations and members of civil society. [January 23, 2020]

ASIA

Palestine | Situation in Palestine: ICC Pre-Trial Chamber rules on Prosecutor’s request for an extension of the page limit

Due to the exceptional circumstances, Pre-Trial Chamber I granted the Prosecutor’s request for an extension of the page limit.  However, they rejected the request pursuant to Article 19(3) for procedural reasons. [January 21, 2020]

ICC

International Criminal Court Marks Opening of the Judicial Year 2020

The opening of the judicial year began with a special session where the Secretary-General, the President of the Court, the Prosecutor, the Registrar, and the President of the International Criminal Court Bar Association spoke.  It was followed by the Third Annual Judicial Seminar of the ICC. [January 23, 2020]

Merit-Based Nominations Key to Elect Most Qualified Judges

The period for states to nominate candidates for judicial appointment opened on January 6 and will run until March 30. [January 15, 2020]

S.S and Others v. Italy: Sharing Responsibility for Migrants Abuses in Libya

By: Andreina de Leo, Junior Research Associate, PILPG-NL

In May 2018, the Global Legal Action Network (GLAN) and the Italian Association for Juridical Studies on Immigration (ASGI), supported by the non-profit association ARCI and the Allard K. Lowenstein International Human Rights Clinic at Yale Law School, filed an application before the European Court of Human Rights (ECt.HR) concerning the responsibility of the state of Italy for its assistance to the Libyan Coast Guard (LYCG) in intercepting and returning migrants to Libya.  This type of conduct is commonly referred to as a “pull-back”, and has resulted in several deaths, as well as in other human rights violations.  On November 11, 2019, Amnesty International and Human Rights Watch submitted a joint third-party intervention to the Court.  On the same day, the International Commission of Jurists (ICJ), the Advice on Individual Rights in Europe (AIRE) Centre, the European Council on Refugees and exiles (ECRE), and the Dutch Refugee Council (DCR) submitted their third party intervention.  This post will analyze the arguments adduced by the interveners with regard to the Italian responsibility for the human rights violations resulting from the LYCG pull-backs, with a particular focus on the question of extraterritorial jurisdiction. 

S.S. and Others v. Italy specifically concerned a Search and Rescue (SAR) operation performed on November 6, 2017, by the LYCG’s patrol vessel Ras Jadir and the NGO Sea Watch 3 in response to a distress call diffused by the Italian Maritime Rescue Coordination Centre (MRCC) coming from a sinking migrant dinghy, carrying around 150 passengers.  According to the 17 survivors of the incident (who happen to be the applicants),  LYCG’s arrival caused a strong water movement which led to the death of at least 20 people who had fallen from the boat.  Furthermore, the LYCG obstructed the Sea Watch rescue operations by throwing objects, as well as hitting and threatening the migrants with ropes and weapons, without providing life jackets to those who were in the water.  The Sea Watch was eventually able to rescue and bring to safety in Italy 59 passengers.  Nonetheless, 47 migrants were ultimately returned to Libya, where several of them faced serious human rights violations, including being detained in inhumane conditions, beaten, and sold to a captor who tortured them.

As far as the role of Italy is concerned, before reaching the scene, the LYCG communicated with the MRCC in Rome, which informed it of the location of the boat in distress. Furthermore, the patrol vessel of the LYCG performing the operation was one of the four patrol boats that had been donated by Italy to the LYCG on May 15, 2017.  Finally, an Italian navy helicopter was present during the incident.  In this regard, the argument of the applicants, shared by the above-mentioned interveners, is that Italy should be responsible for human rights violations against migrants insofar as it effectively made it possible for the LYCG to conduct interception measures leading to said violations, including Article 3 of the European Convention on Human Rights (ECHR).  In the context of this post, the merit of the violations will not be examined (for a description of human rights abuses against migrants in Libya, see the Office of the United Nations High Commissioner for Human Rights report here).  On the contrary, the post will focus solely on the exercise of jurisdiction for the purpose of applying the ECHR, in accordance with its Article 1. For a Contracting Party, such as Italy, to be held responsible for a violation of the Convention, it is necessary to prove its jurisdiction over the conduct in question. 

Settled case-law of the ECt.HR, and in particular its land-mark ruling Al-Skeini, recognizes that, even though the notion of jurisdiction is essentially territorial, “whenever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section I of the Convention”  The Court employed the notion of effective control giving rise to extraterritorial jurisdiction in the context of migrant’s interception on the high seas in Hirsi Jamaa and Others v. Italy. In this case, Italy was condemned for violating the Convention through its policy of returning migrants to Libya. Concerning the exercise of extraterritorial jurisdiction, the Court recalled that “the maritime environment is not an area outside the law and that maritime interdictions may well bring affected persons within the interdicting state’s jurisdiction”.  In that case, indeed, migrants were found to be under the effective control of the Italian authorities insofar as they were transferred onto Italian military ships before being eventually handed over to the Libyan authorities.  This feature draws an important difference between Hirsi and SS: as a matter of fact, while in the former, the Italian authorities were directly involved in the return of migrants to Libya, in the latter they are merely supporting the Libyan authorities through financial and practical means in conducting themselves the return.  Such a difference makes it more difficult from a legal point of view to demonstrate that Italy does exercise effective control and that the ECt.HR consequently has jurisdiction over the operation.  

In this regard, however, a particular judgment of the ECt.HR, in which the Court seems to distance itself from the traditional doctrine of effective control, appears to be especially relevant. In Ilascu and Others v. Moldova and Russia, the Court held that, even in the absence of effective control, a Contracting State still retains a positive obligation under Article 1 to take all the measures within its power, in accordance with international law, to secure to the applicants the rights guaranteed by the Convention.  Furthermore, when assessing the exercise of extraterritorial jurisdiction by the Russian Federation – because the applicants in the case were arrested by Russian soldiers and consequently handed over into the charge of Transdniestrian Separatist authorities where they were subjected to ill-treatment – the Court found that there was a “continuous and uninterrupted link of responsibility on the part of the Russian Federation for the applicants’ fate since Transdniestria was “under the decisive influence of Russia” and “survived by virtue of the military, economic, financial and political support'' provided by it.  In this context,  to demonstrate the exercise of jurisdiction, the Court did not seem to attach importance to the fact that the Russian Federation did not directly participate in the events that are the subject of the complaint.  On the contrary, it regarded as sufficient that Russia neither acted “to prevent” or “to put an end” to the violations to consider the applicants falling under Article 1 of the Convention.  It follows that the duty to take preventive actions in respect of human rights violations originates first and foremost from the influence that a State exercises in a particular situation, which can also be demonstrated by means of financial support. As a consequence, the Court seems to imply that if a State has the power to prevent human rights violations and does not act on it, its conduct could trigger the applicability of Article 1 ECHR, thus engaging its responsibility, even in circumstances in which the violations occurred extraterritoriality and the Contracting State did not exercise effective control.

This conclusion is particularly important for the case under examination.  Indeed, as a consequence of the Memorandum of Understanding (MoU) between Italy and Libya signed in 2017, the Italian government committed to providing technical and technologic support to the Libyan institutions in charge of the fight against illegal immigration, represented by the border guard and the coast guard of the Ministry of Defense and by the competent bodies and departments of the Ministry of Home Affairs.  Such support consisted of technical and financial aid, as well as in the donation of a number of patrol vessels, including the one which undertook the operation in the examined case.  Considering that the LYCG was barely functioning before 2016, it appears that it is only due to Italy’s technical and financial aid that it has attained the operational capability necessary to perform the interceptions leading to the occurrence of gross human rights violations at the expense of the migrants.  As a consequence, the interveners argue that Italy should be said to have exercised decisive influence over the operation and that it should be consequently held responsible for the arising human rights violations.  It is now left to the Court to bring clarity on whether or not such a cooperation-based policy of migration control complies with the Convention.