May 2021

Monthly News Updates: Domestic Prosecution of International Crimes - May 2021

By: Alexandrah Bakker, Research Associate, PILPG-NL 

The following post highlights developments from around the world in the domestic prosecution of international crimes.  This month saw developments at all stages of criminal proceedings, including the filing of criminal complaints, the strengthening of national legislation, and steps towards long-awaited convictions.

EUROPE

Ukraine | Ukraine Parliament adopts international crimes law

The Parliament of Ukraine has adopted a law incorporating provisions of international criminal law and international humanitarian law into the state’s domestic criminal legislation.  Ukraine is not a state party to the Rome Statute of the International Criminal Court and previously did not have legislation aligning its domestic law with international law. [May 20, 2021]

Finland | Gibril Massaquoi trial returns to Finland

Following several months of hearings in Liberia and Sierra Leone, the judges and parties in the Gibril Massaquoi trial have returned to Finland for the conclusion of the trial.  Massaquoi is on trial for war crimes and crimes against humanity during the First Liberian Civil War. [May 20, 2021]

Switzerland | Swiss Federal Court announces date of Alieu Kosiah verdict

The Swiss Federal Criminal Court has announced that the verdict in the landmark Alieu Kosiah trial will be rendered on June 18, 2021, at 13:30 CET.  Kosiah is the first Liberian to stand trial for crimes committed during the Liberian civil wars. [May 18, 2021] 

France | Paris Court of Appeal orders release of Rwanda genocide suspect

The investigating chamber of the Paris Court of Appeal ordered the release of Marcel Hitayezu, a Rwandan priest due to stand trial over his role in the 1994 genocide, under judicial supervision.  The indictment against Hitayezu accuses him of genocide and complicity in crimes against humanity for depriving Tutsis of food and water after they sought refuge in his church. [May 8, 2021] 

The Netherlands | Appeals Court of The Hague approves extradition of Rwandan genocide suspect

The Appeals Court of The Hague has approved the extradition of a Rwandan man facing charges of genocide and crimes against humanity over his role in the 1994 genocide. [May 6, 2021] 

Germany | Belarusians file criminal complaint in Germany against Alexander Lukashenko

A group of Belarusians has filed a criminal complaint in Germany accusing President Lukashenko and other Belarusian officials of crimes against humanity.  The complaint alleges that the individuals were victims of “violence, systematic torture, and other abuses” since the presidential election in August 2020. [May 5, 2021] 

Sweden | Swedish Supreme Court rules that dead persons are protected under international humanitarian law

The Swedish Supreme Court has ruled that dead persons are protected against humiliating treatment under both international humanitarian law and Swedish law.  The judgment comes in the first universal jurisdiction case to reach Sweden’s Supreme Court. [May 5, 2021]

France | Prosecutors ask judges to drop case accusing members of French armed forces of complicity in crimes against humanity in Rwanda

Prosecutors have asked judges to drop a case brought in 2005 against members of the French armed forces deployed in Rwanda in 1994.  The charges accuse the officers of complicity in crimes against humanity for deliberately abandoning Tutsi refugees to be massacred. [May 3, 2021]

THE AMERICAS

Colombia | Colombian Special Jurisdiction for Peace accredits LGBTI victims

The Colombian Special Jurisdiction for Peace (JEP) accredited five LGBTI individuals as victims of the state’s armed conflict, thereby recognizing gender-based persecution as a crime against humanity falling under the JEP’s jurisdiction.  The accreditation also clarifies the definition of gender-based persecution as including persecution on the basis of sexual orientation and gender identity. [May 4, 2021]

ASIA

Armenia | Armenia convicts Syrian mercenaries for role in Nagorno-Karabakh

A court in the Syunik region of Armenia convicted two Syrians of violations of international humanitarian law and sentenced them to life imprisonment for fighting alongside Azerbaijan’s armed forces in the conflict over the Nagorno-Karabakh region. [May 4, 2021]

May 2021

Monthly News Updates: Southern Cameroons – May 2021

By: Fabiana Nuñez del Prado Nieto, Junior Research Associate, PILPG-NL

This post collects updates from the past month concerning recent developments in Southern Cameroons.  The information is drawn from local and international online sources.

VIOLENCE IN ANGLOPHONE REGIONS

Separatist Violence | Clashes between separatists and official troops 

On May 20, 2021, Cameroon celebrated its Unity Day, commemorating the decision to constitute Cameroon as a unitary state instead of the previously existing federal system.  However, clashes between separatists and official troops tarnished the usual celebratory activities in the state’s English-speaking towns and villages.  The violence left at least 16 people dead and 60 houses burned. [May 20, 2021] 

OTHER REGIONAL VIOLENCE

Nigeria/Cameroon | Newly formed alliance ignites ethnic tensions

In April 2021, the leaders of the Indigenous People of Biafra (IPOB), a Nigerian secessionist group that advocates for the creation of the independent state of Biafra, and the Ambazonia Governing Council, one of two major Anglophone separatist groups, announced a formal military and strategic alliance.  The alliance threatens to ignite violence and instability in the two states and across West and Central Africa. [May 20, 2021] 

HUMAN RIGHTS 

Sexual and Gender-Based Violence | Escalation of cases in Anglophone regions 

United Nations (UN) data shows more than 500 cases of gender-based violence, including forced marriage, denial of economic resources, and emotional abuse between January and March 2021.  In 2020 alone, the UN documented 4,300 sexual and gender-based violence incidents across the two regions between February and December. Almost half of these cases involved sexual or physical assault, and in more than 30 percent of cases, the victims were children.  In 2019, 289 out of the 1,065 documented cases involved sexual assault or rape.

According to Reach Out Cameroon, a non-governmental organization, sexual violence in Cameroon is growing in large proportions.  The conflict has aggravated sexual violence in the affected communities, particularly for those most vulnerable, such as girls and women. [April 29, 2021]

Sexual and Gender-Based Violence | Hunger strike to draw global attention to sexual violence

On May 14, 2021, around one thousand women embarked on a hunger strike to draw global attention to the rise of sexual and gender-based violence in the Anglophone crisis.  The objective was to pressure US President Joe Biden, French President Emmanuel Macron, and UK Prime Minister Boris Johnson to step in and help restore peace in Cameroon. [May 19, 2021]

LGBTQ+ Rights | Escalation of arrests of LGTBQ+ people for “Practicing Homosexuality"

On February 8, 2021, two Cameroonian transgender women were arrested in Douala for wearing typically female clothing.  The prosecutors charged them with attempted homosexual conduct, public indecency, and non-possession of their national identity cards.  On May 11, a court sentenced the two women to five years imprisonment and a USD 350 fine under a law prohibiting homosexuality.  According to the lawyer representing both women, the prosecution is trying to send the political message that LGTBQ+ people are not wanted in Cameroon.

Recently, the security forces in Cameroon have increasingly targeted people for arbitrary arrest based on their actual or perceived sexual orientation or gender identity. [May 12, 2021] 

Bringing Human Rights off the Pitch: The absence of Accountability for abuses surrounding the 2022 FIFA World Cup in Qatar

By: Henry Smith, Junior Research Associate, PILPG-NL

In March 2021, during the qualifying matches for the 2022 Football World Cup organized by the Fédération Internationale de Football Association (FIFA), players of the national football teams of the Netherlands, Germany, Norway, and Denmark walked onto the fields in shirts with messages such as “human rights on and off the pitch”, and “football supports change”.  The on-field protests were aimed at the alleged human rights violations committed against migrants working on the construction of stadiums and facilities for the next World Cup in Qatar.

Both Qatar and FIFA have recently come under heavy criticism for not taking action against those allegations.  Although Qatar has adopted measures aimed at addressing the issue, it has failed to implement them, and migrant workers continue to report dire conditions.  

This article examines Qatar’s obligations under international human rights law and assesses whether victims can seek remedies before human rights institutions, or, alternatively, whether it would be possible to hold FIFA accountable.

The alleged violations

According to Amnesty International, since the beginning of the construction of facilities for the 2022 World Cup, workers from Bangladesh, India, and Nepal have been subjected to forced labor, received low and delayed salaries, and have lived in appalling conditions.  Workers were hired under the kafala system, in which their working visas were tied to their employers, and they would have to request permission to change jobs or leave Qatar.  Furthermore, migrants do not have the right to join trade unions or to go on strike.  Moreover, there are estimates that indicate that, in that period, more than six thousand migrant workers have died as a result of the precarious work conditions.

While Qatar has adopted significant reforms to its labor laws, including the abolishment of the kafala system, and the adoption of a basic minimum wage, a recent report by Human Rights Watch indicates that the violations have continued in practice. 

Human rights related to labor are protected by the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic Social and Cultural Rights (ICESCR).  Article 8 of the ICCPR prohibits forced labor, and Article 22 provides the rights of association and of forming trade unions.  As for the ICESCR, according to Article 7, states should ensure fair wages, decent living standards, safe and healthy working conditions, and reasonable limitations of working hours.  Article 8 provides the rights to form trade unions and strike. 

Seeking remedies

Although Qatar became a party to the Covenants in 2018, it has not signed or ratified the Optional Protocol to either of them..  As a result, it has not consented to the jurisdiction of the United Nations Human Rights Committee or the United Nations Committee on Economic, Social and Cultural Rights, which are the monitoring mechanisms of these Conventions.  Consequently, the international human rights framework does not provide migrant workers with effective means for seeking remedies against Qatar for the human rights abuses they have been subjected to.

Migrant workers will also be unable to seek remediation from FIFA through international mechanisms.  The international human rights framework only creates obligations for states.  Although FIFA has included a commitment to respect “internationally recognized human rights'' in its Statute, as a non-state actor, it cannot be held responsible under international law.  Moreover, the international human rights framework applicable to businesses merely consists of guidelines and codes of conduct, such as the United Nations Guiding Principles on Business and Human Rights, which are not legally binding instruments. 

Alternatively, a possible avenue for seeking remediation from FIFA may be through the state in which it is domiciled: Switzerland.  In accordance with the nationality principle of jurisdiction, domestic courts have jurisdiction over cases where the perpetrator of a violation is a national of the state.  In fact, a claim was brought to a Swiss commercial court in Zurich in 2014 by a Bangladeshi worker.  According to the claimant, by awarding the World Cup to Qatar without compelling it to secure migrant worker’s rights, FIFA had knowingly put those people in danger, breaching Swiss law.  The claimant requested the court to order FIFA to press Qatari authorities to ensure the fundamental rights of migrant workers, to declare the unlawfulness of FIFA’s negligent conduct towards human rights, and to award a compensation of 4,000 US dollars to the victim.  The court held that the claims were too vague and failed to indicate exactly which of FIFA’s acts constituted human rights violations.  Consequently, the case was dismissed on admissibility grounds. 

As the court did not issue a decision on the merits of the case, other cases related to the abuses in the preparations for the World Cup can still be filed against FIFA.  However, the court noted in the decision that FIFA did not have the capacity to ensure the observance of human rights, as this is the responsibility of Qatar.  In effect, the Swiss court indicated that it would be very difficult for victims to claim remedies effectively from FIFA for the abuse they suffered while working in Qatar.

Concluding remarks

Under current circumstances, it is difficult to see how migrant workers could effectively request remedies for the human rights abuses suffered in the preparations for the 2022 World Cup in Qatar.  As long as Qatar does not consent to the jurisdiction of a human rights body, it cannot be held responsible for those abuses through an international mechanism.  And, as long as there is no international framework that imposes binding obligations on corporations, there is little reason to believe that FIFA could be held responsible for human rights violations.  Until then, it is likely that human rights will remain only “on the pitch”.

Gbagbo and Blé Goudé Acquittal: The ICC’s Standard of Review in “No Case to Answer” Applications

By: Adam DiSimine, Junior Research Associate, PILPG-NL

On March 31, 2021, the Appeals Chamber of the International Criminal Court (ICC) upheld the acquittal of Laurent Gbagbo and Charles Blé Goudé, finalizing their release from custody.  Mr. Gbagbo and Mr. Blé Goudé had previously been acquitted by Trial Chamber I of the ICC for crimes against humanity allegedly committed in Côte d'Ivoire in 2010 and 2011.  The Prosecutor had appealed the Trial Chamber’s decision on two grounds: (i) a failure to meet statutory requirements concerning the delivery of verdict and reasons and (ii) the standard of proof used when assessing evidence in “no case to answer” applications.  This blog post will take a close look at the second ground of appeal and examine the Appeals Chamber’s ruling on the appropriate standard of review when the ICC is deciding “no case to answer” applications.  It will begin with a brief look at the ICC’s prior treatment before examining both the majority opinion and the dissenting opinion of Judge Luz del Carmen Ibáñez Carranza in the Gbagbo and Blé Goudé appeal.

Prior Standards of Review

A “no case to answer” application allows an accused to request acquittal after the Prosecution has presented its case on the basis of insufficient evidence.  In the past, the ICC has been criticized for an inconsistent approach throughout its case law.  Part of the reason for this is that the Rome Statute of the International Criminal Court (Rome Statute) does not provide for an explicit standard of review in “no case to answer” applications.  As a result, the judges of the ICC are left to their own discretion when considering applications.  In the Ruto case, the Trial Chamber established that the standard of review only requires a determination of whether the court “could” convict an accused.  The Trial Chamber emphasized “could” and affirmed that the standard to be applied was not the same as that for conviction.  Conversely, some scholars have argued that by citing jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the ICC also endorsed a standard of proof beyond a reasonable doubt.  Later, in the Gbagbo and Blé Goudé case, the Trial Chamber established that the standard of review would require the Prosecution to meet the requirements for conviction, as set out in Article 66 of the Rome Statute, requiring proof of guilt beyond reasonable doubt.   As a result of this seeming inconsistency, the ruling by the Appeals Chamber is a welcome clarification.

The Majority Opinion

In their lengthy decision on the appeal of the “no case to answer” decision, the Appeals Chamber affirmed the standard of review established by the Trial Chamber in the Gbagbo and Blé Goudé case.  The Appeals Chamber noted that the applicable test found in ICTY and national jurisprudence requires acquittal “where the evidence thus far presented is insufficient in law to sustain a conviction on one or more of the charges.”  The Appeals Chamber went on to note that the proper application of this test makes it “wholly appropriate and correct to articulate the standard of proof at the level of proof beyond reasonable doubt and nothing less.”  As a result, the Appeals Chamber cemented the higher standard of beyond reasonable doubt, which is necessary for conviction.  As noted by the Appeals Chamber, this standard is consistent with the tests of several national jurisdictions.  If the evidence presented by the Prosecution at the end of its case would not be sufficient to convict the accused, then a Trial Chamber may grant a “no case to answer” application and acquit the accused.  The decision of the Appeals Chamber was well reasoned and based on an extensive review of prior practices of other courts.  It opined not only on the applicable test to be applied but also on the standard for assessing the credibility and reliability of evidence, providing practical guidance to future judges. 

The Dissenting Opinion

The dissenting opinion of Judge Luz del Carmen Ibáñez Carranza provides novel ideas on this topic.  Most importantly, Judge Ibáñez Carranza rejects the appropriateness of “no case to answer” applications in their entirety.  In her opinion, the use of a “no case to answer” procedure is not established in the Rome Statute, “has no applicable rules of procedure or evidence [and] has completely disrupted the balance of the Rome Statute System” in the Gbagbo and Blé Goudé case.   Judge Ibáñez Carranza casts the Rome Statute System as a sui generis legal system and asserts the existence of “no case to answer” applications contravenes principles of fairness and due process.  A delicate balance of interests was carefully crafted by the States Parties and this case has allowed judges to disrupt that balance by developing a mechanism not envisioned by the Rome Statute System.  Her dissenting opinion demonstrates the ongoing debate and uncertainty within the ICC itself on the treatment of “no case to answer” applications.  It may also serve as a nudge to States Parties to clarify the appropriateness of “no case to answer” applications before the ICC. 

Conclusion

Ultimately, the decision of the Appeals Chamber, while not unanimous, will provide future Trial Chambers with guidance as they entertain “no case to answer” applications from accused persons who believe the Prosecutor has not presented sufficient evidence.  The decision of the Appeals Chamber in the Gbagbo and Blé Goudé case has affirmed the high standard the Prosecution must meet to successfully present a “no case to answer” application by the defense.  This is the most recent in a string of ICC decisions on this subject and provides a welcome degree of predictability in an uncertain area of international criminal law.

The U.K. Overseas Operations Bill

By: Katherine Grzadkowska, JUNIOR RESEARCH ASSOCIATE, PILPG-NL

On April 29, 2020, the Overseas Operations (Service Personnel and Veterans) Bill (OOB, the Bill) received royal assent and will shortly be adopted into United Kingdom (U.K.) law.  The Bill has been touted by the current Conservative government as being crucial in tackling “vexatious claims and [ending] the cycle of re-investigations against [the U.K.’s] Armed Forces.”  Nevertheless, the OOB is highly controversial as it may modify the application of international law in the context of British overseas military operations.  Although the House of Lords has recently made important amendments, this post will examine some of the remaining concerning aspects of the OOB in light of the U.K.’s international human rights obligations.  

Background 

The OOB’s was drafted in response to the thousands of “spurious legal claims” against soldiers and the Ministry of Defence (MoD) after the U.K.’s missions in Iraq and Afghanistan in the early 2000s.  Many of these cases were “lodged using legal aid with the Iraq Historic Allegations Team (IHAT), which was set up to examine serious accusations” arising from the Iraq missions.  While some had merit, the vast majority of these cases were unfounded, frivolous and/or vexatious, and their investigations resulted in a significant drain of the British judiciary and military’s resources. 

Although the OOB seeks to limit such claims from arising in the future, the Bill has a number of contentious provisions.  The OOB contains a “presumption against prosecution” if litigation is commenced five years after the date on which the criminal conduct is alleged to have occurred.  After five years, U.K. prosecutors will only permit criminal proceedings in “exceptional” circumstances.  In fact, prosecutions will only be allowed if the applicant receives the Attorney General’s express consent.  Furthermore, British prosecutors will have to give special consideration to a number of mitigating circumstances, such as the mental stress endured by service personnel in the context of military duties. 

The OOB also amends the Human Rights Act 1998 that allows the U.K. Secretary of State to derogate from the European Convention on Human Rights (ECHR) whenever the U.K. engages in future “significant overseas operations.” 

Recent Amendments by the House of Lords

Originally, the OOB applied to nearly all types of claims arising in overseas operations, with the exception of crimes against humanity of a sexual nature, as contemplated under Article 7(1)(g) of the Rome Statute of the International Criminal Court (ICC Statute).  This meant that all other violations of international criminal law or war crimes would be subject to the presumption against prosecution after the passage of five years - contrary to the U.K. 's obligations to investigate grave offences under the ICC Statute, the Convention Against Torture, and customary international humanitarian law.  The House of Lords recently amended this provision and made torture, war crimes, and other non-sexual crimes against humanity exempt from the application of the OOB making the Bill more inline with the afore mentioned sources of international law. 

Remaining Concerns of the Proposed Legislation 

While the House of Lords’ amendments were a step in the right direction, the OOB still has a number of concerning aspects in terms of U.K. 's human rights obligations.  As a party to the ECHR, the U.K. is bound by rulings of the European Court of Human Rights (ECtHR), which has held that in certain circumstances, the ECHR may apply extraterritorially to overseas military operations.  Where the ECHR applies, states parties are obliged to properly investigate human rights violations committed by soldiers stationed overseas and ensure that victims “have an effective remedy before a national authority.”  As the OOB currently stands, certain human rights violations and crimes not meeting the severity of those addressed by the House of Lords amendment will be subject to the presumption against prosecution.  These aspects of the OOB could incentivize the Ministry of Defence to conduct less stringent or flawed investigations and to even “leave investigations incomplete” in order to take advantage of the presumption against prosecution.

In fact, the drafters of the OOB have included the ability for the U.K. to derogate from the Convention entirely.  While Article 15 of the ECHR allows for derogation from its human rights provisions during times “of war or other public emergency threatening the life of the nation,” the OOB’s derogation provision would apply more broadly to any “significant overseas operations” including “peacekeeping […and] operations for dealing with terrorism, civil unrest or serious public disorder.”  Although state parties have evoked Article 15 in times of domestic disorder, terrorist threats, and emergencies, no such derogations to the ECHR have been made for modern instances of extraterritorial armed conflict or other kinds of military operations contemplated in the OOB.  The fact that the OOB could allow for derogation in nearly any event where U.K. soldiers are deployed overseas may go beyond the narrow derogation as contemplated in the ECHR. 

Conclusion 

The complex balance between international criminal law, humanitarian law, and human rights law is certainly blurred during times of extraterritorial military activity.  Yet, the OOB may have gone too far in favor of “lawfare” at the cost of the U.K.’s international obligations.  While the House of Lords has made significant amendments, when it comes into force, the OOB will limit the possibility of holding U.K. troops accountable for their wrongful conduct abroad.   As a result, avenues for redress for foreign victims will be greatly restricted.