The Responsibility of Royal Dutch Shell to Comply with Human Rights Obligations and Environmental Law Through the Unwritten Standard of Care

By: Jochem de Hoop, Junior Research Associate, PILPG-NL

On May 26, 2021, the District Court of The Hague ordered Royal Dutch Shell (RDS) to reduce the CO2 emissions of the Shell Group by a net 45% before 2030, compared to 2019 levels.  The court considered that the CO2 emissions of the Shell Group, its suppliers, and customers exceed those of many states.  This contributes to global warming, which causes climate change and creates serious risks to human rights, such as the right to life and the right to respect for private and family life.  While individuals and civil society organizations cannot directly invoke international and European human rights obligations against companies, they still should respect human rights and apply the relevant standards.  The court decided that the Shell Group has an obligation to comply with international human rights obligations, the UN Guiding Principles on Business and Human Rights (UNGP), and the goals of the 2015 Paris Agreement, in accordance with the unwritten standard of care under Dutch tort law.

This blog post focuses on the responsibility of the Royal Dutch Shell to ensure its policies comply with human rights obligations under international and European law and the interpretation of the unwritten standard of care under Dutch tort law. 

Background of the Case

In 2019, a group of seven NGOs, including Milieudefensie and Greenpeace, and 17,379 individuals filed a class-action lawsuit against RDS.  The claimants argued that RDS failed to reduce CO2 emissions by not investing more in renewable energy.  On this basis, they argued that RDS violated the unwritten standard of care laid down in Book 6 Section 162 of the Dutch Civil Code, which implies a duty of care for individuals and companies to act in accordance with generally accepted norms of social conduct, and the right to life and the right to family life under Articles 2 and 8 of the European Convention on Human Rights (ECHR).

As one of the world’s largest producers and suppliers of fossil fuels, RDS, which is the parent company of the Shell Group and is headquartered in the Netherlands, is responsible for a significant amount of CO2 emissions that exceed those of many states, including the Netherlands.  RDS endorses the climate goals of the Paris Agreement and expressed support for the European Green Deal, which contains the European Union’s climate policies, and expressed support for the National Climate Agreement, which is part of the Dutch climate policy.  However, Milieudefensie et al. argued that RDS instead increases investments in oil and gas and therefore fails to adhere to the climate targets in accordance with the Paris Agreement.

Responsibility of Corporations to Comply with Human Rights Obligations

In the decision, the court addressed the question of whether RDS has a legal obligation to reduce CO2 emissions in accordance with the goals of the Paris Agreement.  The court decided that it would interpret the unwritten standard of care under Dutch tort law based on the relevant facts and circumstances of the case, scientific reports on climate change, the international consensus that human rights offer protection against climate change and environmental harm, and that companies must respect human rights.

Based on the Urgenda judgment, a climate litigation case against the Dutch government, the court reiterated that Articles 2 and 8 ECHR offer protection against the impact of dangerous climate change as a result of CO2 emissions.  Similarly, the UN Human Rights Committee determined that Articles 6 and 17 of the International Covenant on Civil and Political Rights (ICCPR) offer protection against environmental harm, climate change, and unsustainable development.  The court considered that the impact of dangerous climate change includes health risks and deaths due to heat waves, deterioration of air quality, increase of UV exposure and water-related problems due to rising sea levels.  These serious and irreversible consequences of dangerous climate change pose a threat to the human rights of current and future generations of Dutch residents and inhabitants of the Wadden region, an archipelago along the Northwestern coast of the Netherlands, Germany, and Denmark.  

In addition, the court followed the UNGP, which is an authoritative and internationally recognized non-binding instrument that outlines the responsibilities of states and businesses in relation to human rights.  Interestingly, the court considered that even though the UNGP does not create new rights or legally binding obligations, it can provide a guideline for the interpretation of the unwritten standard of care.  In accordance with the UNGP, the court decided that companies have a duty to respect human rights.  This duty requires companies to avoid causing or contributing to negative human rights impacts through their own activities.  Moreover, it requires companies to prevent or mitigate negative human rights impacts that result from their operations, products or services.  Even though the court acknowledged that RDS is not the only actor responsible for mitigating the impact of dangerous climate change, it concluded that RDS has an individual responsibility to respect human rights, which also extends to its suppliers and customers.  This means that RDS has to ensure through its corporate policy that its own activities result in a reduction of CO2 emissions.  Moreover, it has a “significant best-efforts obligation” with respect to its suppliers and customers, which means that RDS should try to mitigate or prevent the serious human rights risks resulting from the CO2 emissions generated by its suppliers and customers as much as possible.

Implications for Future Climate Litigation Cases

The decision by the Dutch district court has unprecedented implications for future climate litigation cases against big oil companies.  It is the first time that a court decided that a company has a legal obligation to reduce CO2 emissions in accordance with the goals of the Paris Agreement.  Furthermore, it is the first time that a court applied international human rights standards and soft law instruments to impose a legally binding obligation for a company to reduce CO2 emissions.  While the decision does not have direct consequences for climate litigation cases abroad, other domestic courts could replicate the arguments in relation to the application of international human rights standards and international environmental law.  Considering that the concept of a standard of care exists in other legal systems in Europe and other parts of the world, these courts could similarly apply international human rights standards and soft law instruments to companies.  For instance, French NGOs and local authorities have filed a lawsuit against Total for violating the duty of vigilance under French law, which stipulates that large companies have to take appropriate measures to prevent any human rights violations or environmental damage resulting from their activities.

Concluding Remarks
While there have been previous lawsuits against states for violations of human rights obligations and environmental law in relation to climate change, the Milieudefensie et al. v. RDS decision is the first case in which a court decided that a multinational company has the responsibility to reduce CO2 emissions in accordance with international human rights obligations and environmental law. The application of international human rights standards and soft law instruments in interpreting the unwritten standard of care provides an interesting approach to hold companies responsible using international law. While this could set a legal precedent for future climate litigation cases, it is important to note that RDS has announced that it will appeal the decision in the Dutch Court of Appeal. So it remains to be seen whether this decision will have a lasting effect on global climate litigation.

Nigeria’s Twitter Ban and its Human Rights Implications

By: Katherine Grzadkowska, Junior Research Associate, PILPG-NL

Since June 4, 2021, President Muhammadu Buhari has suspended the use of Twitter in Nigeria.  Buhari's move follows Twitter's removal of his tweet in which the president suggested that secessionists in the South of the country would be met with violence.  The social media platform swiftly removed the president’s post as it violated Twitter’s policy against expressing “a desire for death [or] serious bodily harm” against a group of people.  Buhari’s government insists that the Twitter ban is necessary, claiming that the social media platform is a threat to “Nigeria’s corporate existence” through the spread of “fake news.”  Users who circumvent the ban face prosecution and imprisonment.  The ban has sparked criticism worldwide from human rights organizations and the African Commission on Human and Peoples’ Rights as an infringement of Nigerians’ fundamental freedoms of expression, association, and access to information. 

This blog post will examine Nigeria’s Twitter ban through the lens of applicable international and regional human rights instruments.  It assesses whether Nigeria’s Twitter ban poses a severe infringement on Nigerians’ fundamental freedoms and socio-economic human rights. 

Freedom of Speech, Opinion, and the Right to Receive Information

Many international/regional treaties and national constitutions articulate the fundamental freedoms of speech, opinion, and the right to share information.  Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone has the right to “hold opinions without interference” as well as “the right to freedom of expression.”   This includes the right “to seek, receive and impart information and ideas of all kinds” in any form and through any media of the speaker’s or author’s choice.  Article 9 of the African Charter on Human and Peoples’ Rights (African Charter) echoes the ICCPR and also enshrines the right to receive information and express and disseminate opinions.  Domestically, Section 39 of the Nigerian Constitution provides for freedom of expression, opinion, and the right to “receive and impart ideas and information without interference.”

The Human Rights Committee (HRC) has said that freedom of opinion and expression is “the foundation stone for every free and democratic society” and integral for the enjoyment of other human rights.  As such, restrictions on free speech have to be narrow and limited to matters that threaten “the rights or reputations of others” or national interests such as security, public order, health, or morals. 

The Role of Social Media as a Human Rights Facilitator

All of the above-mentioned human rights instruments were enacted before the internet and Twitter existed.  Yet, today’s massive social media platforms have become a common means of sharing ideas, communication, and expression throughout the world.  All of these activities can be viewed as users exercising their fundamental freedoms of speech, opinion, and association, as well as their right to access information.  When social media platforms “are intentionally disconnected or disrupted through deliberate government intervention,” users’ human rights may be endangered.  The HRC has established that “internet-based modes of expression” are captured under Article 19 ICCPR and states have to refrain from banning access to social media platforms in a sweeping and indiscriminate manner.  The Declaration on Principles of Freedom of Expression and Access to Information in Africa also restricts states from interfering or disrupting public access to “digital technologies” like social media platforms, “through measures such as the removal, blocking or filtering of content, unless such interference is justifiable and compatible with international human rights law and standards.” 

The Importance of Twitter in Nigeria 

Twitter is an essential source of information, advocacy, and, at times, even livelihood for an estimated 40 million users in Nigeria.  Many Nigerians rely on Twitter to find jobs and promote their work, especially in the state’s growing tech sector.  As such, the Twitter ban also threatens Nigerian users’ socio-economic right to work as articulated under Article 6 of the International Covenant on Economic, Social and Cultural Rights and Article 15 of the African Charter.  Moreover, Twitter is a favored medium of political discussion and activism in Nigerian as recently exemplified in the #EndSARS protests of October 2020 whereby Twitter served as an essential tool for communication and a trusted source for “real-time updates and unfiltered information.”  Moreover, according to the African Commission on Human and Peoples’ Rights, social media, such as Twitter, serves as an integral informational forum in the context of the Covid-19 pandemic, allowing users to access and share crucial information and news on the virus. 

Conclusion 

Social media platforms have become widely used fora for individuals to connect, communicate, and share ideas worldwide.  These platforms also allow users to socialize, make a living, and disseminate ideas that foster important political debate.  Measures and bans, such as the one imposed in Nigeria, can have a significant impact on users' human rights and fundamental freedoms, especially in developing states and in the context of a global pandemic.  Currently, the Nigerian government is in negotiations with Twitter that may restore both access to the social media platform and the country’s obligations under international human rights law.

What the Closure of the Special Tribunal for Lebanon Would Mean for its Cases

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

At the start of June, the Special Tribunal for Lebanon (STL) released a public statement announcing that it faced an unprecedented financial crisis due to the COVID-19 pandemic and the economic crisis in Lebanon, and would not be able to operate beyond July.  As a result of the lack of funds, the Tribunal, which had already reduced its budget by 37 percent for 2021 in relation to previous years, is facing imminent closure.  This blog will look at the possible consequences that the termination of the STL would have for its cases.

The financial crisis 

Upon the establishment of the Tribunal, the United Nations (UN) Security Council determined that Lebanon would bear 49 percent of the STL’s costs, and the remaining 51 percent would be borne by voluntary contributions of third-party states.  The Management Committee, composed of the ten largest contributors, would oversee and approve the annual budgets.  Until now, 29 states have contributed in total with over a billion dollars.

Since late 2019, Lebanon has been facing a serious economic and financial crisis, which has been exacerbated by the COVID-19 pandemic and the explosion at the Port of Beirut in August 2020.  As a consequence, it has been unable to provide its share of funds to the STL.

In 2021, the STL cut its budget by 35 percent in comparison to previous years, made significant cuts in staff, and received a subvention from the UN, which covered 75 percent of the Lebanese contribution.  However, the STL still fell short of the necessary funds due to the lack of contributions from third-party states.  Even members of the Management Committee failed to provide support, and commentators have suggested that this was due to the states’ frustration with the STL’s lack of effective results, having convicted a single suspect, who is still at large.

The cases

The UN established the STL in March 2009, at the request of Lebanon, to prosecute, under Lebanese criminal law, those responsible for the attack of February 14, 2005, that killed 22 people, including the Lebanese Prime Minister Rafik Hariri, and injured 226 more.  The STL charged four suspects, Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi, and Assad Hassan Sabra, who were tried in absentia in the Ayyash et al. case.  In 2020, the Tribunal issued its judgment on the case, acquitting three of the accused, but finding Mr. Ayyash guilty of all charges.  The Tribunal sentenced him to life imprisonment and issued an arrest warrant.  However, Mr. Ayyash has still not been arrested, and the case is currently being appealed by the respondent and the Prosecutor.  The Tribunal also has jurisdiction over other attacks that occurred in connection to the one that killed Hariri, and it had scheduled the beginning of the trial of its second case, the Ayyash Case, on July 16.

What the closure would mean for the cases

On June 1, the Registrar of the STL, Mr. David Tolbert, issued a notice to the Tribunal’s organs, informing them of the imminent exhaustion of funds, and of the activation of the plan to wind down its activities.  This would include the suspension of all cases, the initiation of procedures for the protection of witnesses, and a process to secure records, evidence, and sensitive material.  The following day, the Trial Chamber that was about to initiate the trial of the Ayyash Case announced the trial’s cancellation.

In previous closures of international adjudicative organs, such as International Criminal Tribunals for Rwanda (ICTR) and Yugoslavia (ICTY), the UN set up the International Residual Mechanisms for Criminal Tribunals (IRMCT).  The IRMCT continued to hear appeals, track and prosecute remaining fugitives, and conduct retrials and reviews. 

The problem for the STL is that such mechanisms also demand funding.  Mr. Tolbert has said that he is drawing up plans along with the UN Secretary-General, but that these plans would not involve the same type of residual mechanism as the IRMCT, mainly due to the lack of financial resources.  Alternatively, perhaps the STL's cases could be mandated to the IRMCT.  However, the UN Security Council would have to restructure the Mechanism’s framework, currently divided into two branches, one for the ICTR and another for the ICTY.  The UNSC would also need to redistribute funds, which could be disruptive for the IRMCT. 

Another possibility would be to suspend the cases indefinitely in the hopes that they would be reopened in the future.  Although this is technically possible, experts believe it is unrealistic.  Therefore it is still quite hard to conclude exactly what will happen with the STL’s cases if the Tribunal effectively closes its doors.

Concluding remarks

While the STL makes plans to enter into a state of “dormancy,” determining what to do with its cases, and how to protect witnesses and archives, it is still seeking the funds it needs to conclude its pending cases.  If it fails to do so before the end of July, it will be forced to shut down.  It is still uncertain to conclude what will happen with its cases, but it is improbable that a residual mechanism like the one set up for the ICTR and ICTY will be established, due to the lack of financial resources. 

The Human Rights of Stranded Seafarers in the Covid-19 Era

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

In April 2021, Mohammed Aisha flew home to Syria after spending nearly four years aboard the MV Aman, a cargo ship stranded off the Egyptian coast.  An Egyptian court had previously designated him as the ship’s chief officer and was legally required to remain onboard long after his crewmates had left.  While stranded seafarers have long been an issue in the global shipping industry, the Covid-19 pandemic has exacerbated the problem.  As a result, the United Nations Global Compact (UNGC), the Office of the High Commissioner for Human Rights (OHCHR), the International Labour Organization (ILO), and the International Maritime Organization (IMO) jointly launched the Human Rights Due Diligence Tool (HRDDT) in May 2021.  This tool provides businesses with guidance on how to minimize violations resulting from the crew being stranded at sea.  This article will look at the human rights issues facing stranded seafarers, the measures set forth in the Human Rights Due Diligence Tool, and the challenges that remain in providing fulsome protection.

Stranded Seafarers

Stranded seafarers are persons who work onboard ships and who are prevented from leaving their ship for a variety of reasons, including an inability to carry out regularly scheduled crew changes, travel bans, and issues with government approvals or authorizations.  In the case of the MV Aman, Egyptian authorities had detained the ship due to expired safety authorizations.  Once Egyptian authorities had designated Mr. Aisha as the ship’s chief officer, domestic law required he remains on the ship until it was sold or a replacement could be found.  There are currently 200,000 stranded seafarers around the globe, with concerns that this number could rise to 400,000.  This phenomenon implicates several human rights under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, including rights to physical and mental health, the right of freedom of movement, and the right to family life.  In addition, many seafarers are forced to work beyond the maximum allowed 11-month period of service on board a ship, raising concerns about forced labor.  The Covid-19 pandemic, which has complicated international travel and reduced opportunities to relieve seafarers from their duties, has worsened the circumstances that lead to these violations .

Human Rights Due Diligence Tool

The HRDDT is directed at private businesses and fits within existing frameworks providing for the protection of the rights of seafarers.  These include the ILO Maritime Labour Convention (2006) and the United Nations Guiding Principles on Business and Human Rights (UNGPs).  The purpose of the HRDDT is to provide a set of measures and mechanisms to help companies in the maritime sector uphold their human rights responsibilities related to crew changes during the Covid-19 pandemic.  The checklist includes a number of measures intended to increase the protection of seafarers, including, but not limited to, (i) a reaffirmation of the 11-month maximum period of service, (ii) respect for the rights of seafarer repatriation, (iii) access to medical care onshore, (iv) flexibility vis-à-vis route changes to facilitate crew changes, and (v) the removal of “no crew change” clauses from agreements.  In addition, the HRDDT refreshes the call for broader human rights due diligence process within the maritime transport industry.  It is intended to complement the UNGPs which provide for robust guidelines urging private businesses to respect human rights.  Together, these documents call on cargo owners, charterers, and logistic providers to mitigate human rights violations within their supply chain through rigorous human rights due diligence process.  Each of these documents is intended to provide businesses with concrete steps to reduce the number of stranded seafarers.

Remaining Challenges

Ultimately, the struggles of stranded seafarers are a symptom of a larger challenge facing international human rights law.  Instruments like the UNGPs and HRDDT are not binding but instead are helpful guidelines intended to promote good practices.  These soft-law instruments only provide guidance to business enterprises and encourage socially responsible corporate behavior.  As a result, challenges persist in changing the practices of shipping companies and in holding those who violate human rights in the context of business activities accountable.  Companies are often the primary perpetrators of human rights violations, especially those related to labor rights.  This accountability gap leaves employees, including stranded seafarers, vulnerable to exploitation and without legal recourse.  ILO Director-General Guy Ryder noted states also have a significant role to play in ensuring the protection of the human rights of seafarers.  These types of scenarios may reignite discussions for a binding international treaty directed at the protection of human rights in the context of business activities.  Until then, the HRDDT will provide valuable guidance to governments to help benchmark business activities.       

Conclusion

Stranded seafarers have become an increasingly common phenomenon during Covid-19 and will remain a human rights problem well after the pandemic is over.  The HRDDT developed by the UNGC, the OHCHR, the ILO, and IMO provides valuable reaffirmations and guidance on best practices to ensure the protection of the human rights of seafarers during this difficult time.  While larger systemic challenges remain at the intersection of business and human rights, this is a welcome tool for increasing compliance and addressing this truly global problem.

June 2021

Monthly News Update: International Criminal Court – June 2021

By: Inne Flies, Junior Research Associate, PILPG-NL 

This news update synthesizes information concerning the International Criminal Court (ICC).  This month included, among others, the change of ICC Prosecutor, a United Nations Security Council (UNSC) address, a benchmarking consultation, and a request for judicial authorization to open an official investigation.  The presented information is drawn from different online news platforms and ICC documents.

ICC

Mr. Karim Asad Ahmad Khan QC sworn in as the new ICC Prosecutor

On June 16, Mr. Karim Asad Ahmad Khan QC was sworn in as the new Prosecutor of the International Criminal Court during a ceremony held at the Seat of the Court in The Hague.  Karim Khan, who was previously elected at the second resumed 19th session of the Assembly of States Parties, will serve a nine-year term.  The new ICC Prosecutor’s first remarks were: “this magnificent courtroom, this building and this office that I now lead can be viewed through two different prisms.  First, it is an awful testament to the horrors of mankind…but through the other prism, through the other lens, this court and the whole Rome Statute architecture represents, in my view, a promise to the future that tomorrow need not be as bleak, as sorrowful as yesterday.”  [June 16, 2021]

Ms. Fatou Bensouda finished her mandate as ICC Prosecutor

On June 15, Ms. Fatou Bensouda’s nine-year mandate as ICC Prosecutor came to an end.  At several farewell events, Principals and staff of the Court, State representatives, and a range of other attendees thanked Mrs. Bensouda for her service and dedication.  Ms. Bensouda reflected on her mandate: “to be effective, to be just and to be a real deterrent, the Office of the Prosecutor's activities and decisions must be based solely on the law and the evidence. During my tenure, I have done my utmost to live by these convictions in the service of the Rome Statute, without fear or favor.”  [June 15, 2021]

Joint NGO Open Letter thanking outgoing ICC Prosecutor Fatou Bensouda

In a joint letter, several NGOs thanked the outgoing ICC Prosecutor Fatou Bensouda for her service and contributions to the ICC.  In particular, the NGOs praised Ms. Bensouda for her high degree of independence and constructive engagement with civil society.  [June 15, 2021]

ICC Prosecutor Fatou Bensouda publishes Policy on Situation Completion

Outgoing ICC Prosecutor Fatou Bensouda published her Office’s Policy on Situation Completion.  The document aims to illustrate the considerations leading to a decision that sufficient prosecutions have been brought in a situation to satisfy the Office of the Prosecutor’s (OTP) mandate under the Rome Statute.  According to Ms. Bensouda, the document will help the OTP by providing transparency, clarity, and helpful guidance for responding to questions in connection with the winding down of activities in a situation.  The policy is part of a trilogy of procedural policy papers that include the Policy Paper on Preliminary Examinations (2013) and the Policy Paper on Case Selection and Prioritisation (2016).  [June 15, 2021]

ICC Prosecutor Fatou Bensouda publishes Policy on Cultural Heritage

Outgoing ICC Prosecutor Fatou Bensouda published her Office’s Policy on Cultural Heritage.  The Policy aims, among other objectives, to enhance clarity on the application of the relevant legal framework through all stages of the OTP’s activities.  Throughout the policy, the OTP commits to continue recognizing the importance of investigating and prosecuting crimes against or affecting cultural heritage in all cases where the evidence supports such charges.  [June 14, 2021]

Trust Fund for Victims bids farewell to outgoing ICC Prosecutor Bensouda

In a letter published on their website, the Trust Fund for Victims (TFV) bade outgoing ICC Prosecutor Fatou Bensouda farewell and thanked her for her tenure.  The TFV noted, among other things, its deep appreciation for placing victims at the center of ICC policies and actions, including Bensouda’s focus on sexual crimes and crimes against children, which demonstrated, according to the TFV, her acute awareness of the persons for whom justice and accountability needs to be achieved.  [June 11, 2021]

AFRICA

Sudan | ICC Prosecutor Statement to UN Security Council on the Situation in Darfur

On June 9, ICC Prosecutor Fatou Bensouda addressed the United Nations Security Council regarding the Situation in Darfur.  The ICC Prosecutor opened her statement by paying homage to the Darfur victims and reflecting upon her recent visit to Darfur.  According to Ms. Bensouda, the ICC and the Government of Sudan are now engaged in constructive dialogue and cooperation.  Her Office’s investigators have already undertaken activities in Sudan and are now preparing for a visit to Darfur.  Further, Ms. Bensouda highlighted some positive developments but also stressed the existence of ongoing challenges, such as the volatile security situation in some Darfur areas and the need to execute outstanding ICC arrest warrants.  This briefing was Ms. Bensouda’s last address to the UNSC in her capacity as ICC Prosecutor.  [June 9, 2021]

Sudan | Appeal related to Mr. Abd-Al-Rahman’s request to be released rejected

The Appeals Chamber rejected Mr. Ali Muhammad Ali Abd-Al-Rahman’s appeal against the Pre-Trial Chamber’s decision to remand him in detention.  Mr. Abd-Al-Rahman claimed that the Pre-Trial Chamber committed several errors of law and fact.  However, the Appeals Chamber ruled that he did not meet the required burden of substantiation.  [June 2, 2021]

Sudan | ICC Prosecutor Bensouda visits Sudan

ICC Prosecutor Fatou Bensouda and her team visited Sudan.  During the visit, they met with authorities, affected communities in Darfur, and other stakeholders.  Bensouda expressed her admiration for the Darfurians’ courage, resilience, and quest for justice, as well as stressing the need for cooperation with her Office to ensure the surrender of remaining ICC suspects.  [May 30 - June 2, 2021]

THE AMERICAS

Colombia | ICC Prosecutor invites stakeholders to consult on the development of a benchmarking framework for the Situation in Colombia

ICC Prosecutor Fatou Bensouda published a benchmarking consultation concerning her Office's ongoing preliminary examination into the situation in Colombia.  The report details why the situation is still under preliminary examination and what remains to be done before a final determination can be reached (either to open investigations or to conclude the preliminary examination subject to its re-opening upon a change in circumstances).  The report suggests that the consultations may focus on three areas:  domestic legislative framework, domestic proceedings, and enforcement of sentences. All three areas impact the cases over which the ICC could potentially exercise jurisdiction.  This information will assist the incoming Prosecutor to reach a decision on the need for an investigation.  [June 15, 2021]

ASIA 

The Philippines | ICC Prosecutor Statement on her request to open an investigation in the Situation in the Philippines

ICC Prosecutor Fatou Bensouda announced the conclusion of the preliminary examination into the situation in the Republic of the Philippines and her request for judicial authorization to proceed with an investigation.  The ICC Prosecutor determined that there is a reasonable basis to believe that the crime against humanity of murder has been committed on the territory of the Philippines between July 1, 2016 and March 16, 2019 in the context of the Government of the Philippines’ “war on drugs” campaign.  In addition, the OTP also reviewed information related to allegations of torture and other inhumane acts and related events occurring as early as November 1, 2011 (the beginning of the ICC’s jurisdiction in the Philippines).  Although the Philippines has withdrawn from the Rome Statute as of March 17, 2019, the ICC retains jurisdiction over crimes that allegedly occurred during the period when it was a state party to the Rome Statute.  [June 14, 2021]