The Question of Deferral within the ICC’s Philippines Investigation

By: Guillermo Ferrer, Junior Research Associate, PILPG-NL

On November 18, 2021, Prosecutor Karim A.A. Khan notified the ICC Pre-Trial Chamber I that the Philippines requested a deferral of the Prosecution’s investigation into alleged crimes against humanity committed during the “War on Drugs” campaign employed by Filipino authorities. 

The Philippines requested to deal with the investigation and prosecution of these cases at a national level. Therefore, the ICC suspended the investigation process in accordance with Article 18(2) of the Rome Statute, and in observance of the principle of complementarity. The Philippines now needs to inform the Office of the Prosecutor (OTP) how it will carry out these investigations. If it fails to do so, the OTP can reopen the ICC's investigations.

This blog will look at the Philippines’ request for deferral and analyze how the OTP might respond to it in the light of the principle of complementarity, the Rome Statute, and the Afghan precedent.

The War on Drugs 

In 2016, the Philippines, under the administration of President Duterte, introduced a "War on Drugs" policy to fight the national methamphetamine addiction crisis. This campaign has resulted in almost 8.000 civilian deaths, including among the most vulnerable sectors of the Philippine population, such as children. Children's rights advocates claim that 101 children were extrajudicially executed or killed as bystanders during anti-drug operations from mid-2016 to 2018.

Civil society organizations claim that most crimes have been carried out by Philippine National Police and groups of mercenaries allegedly collaborating with the Filipino government. These cases have been treated as isolated incidents by the Philippine Department of Justice, disregarding the opinions of civil society organizations. In addition, President Duterte argues that these incidents involved only a few police officers who were considered as “bad apples.” 

According to Human Rights Watch, this campaign's psychological and physical damage is great. Filipinos are suffering economic hardship because of the death of their relatives that used to support the family economy. Moreover, this situation has worsened poverty and trauma, leading many children to drop out of school or forcing them to work. 

The Effectiveness of the Investigation

Prosecutor Khan, considering the possible ineffectiveness of a domestic investigation, requested additional information from the Filipino government. This includes the production of credible evidence of a certain standard to demonstrate that “concrete and progressive investigative steps have been or are currently being undertaken” to establish the responsibility of individuals for alleged crimes against humanity.

Several NGOs, such as Human Rights Watch, have dismissed the claim that the Philippines' domestic mechanisms will provide justice to the victims, arguing that the Philippine National Police is falsifying evidence to cover the unlawful killings. Moreover, Filipino civil society organizations have expressed concern that the Philippine government, with this referral, will try to hide or destroy evidence and use scapegoats to avoid the apprehension of the real perpetrators. 

The Afghan Case

The ICC has previously dealt with these matters in the case of Afghanistan's request for deferral of the investigation of alleged war crimes and crimes against humanity committed within the state. The Court decided to grant this request and verified if the Afghan government prosecuted the same alleged perpetrators, on which the OTP's investigations would most likely focus.

The Afghan government tried in vain to focus the prosecution only on the low-profile cases, to avoid assessing the responsibility of high-profile politicians. Several issues within this investigation occurred, such as the reluctance of new authorities to investigate, the obstruction of justice, and the concealment of evidence. Prosecutor Khan explained that "there is no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan" and highlighted that the gravity, scale, and continuing nature of alleged crimes demand focus and proper resources from his Office. Therefore, in the end, the OTP reopened the investigation. Prosecutor Khan noted that "On 5 March 2020, the ICC's Appeals Chamber authorized my Office to investigate alleged atrocity crimes committed within the context of the Afghanistan situation since 1 July 2002."

As seen in this case, if investigations drag on for too long, the process of obtaining justice and prosecution might be jeopardized. Consequently, the OTP might need to restart investigations in consideration of the principle of complementarity.

Concluding Remarks

The ICC is currently proceeding to evaluate the information on the Philippines’ national investigation on the commission of these alleged crimes against humanity. This difficult task might start with monitoring the evolution of judicial proceedings at the national level, determining if the measures taken are significant in fighting impunity. If some of the issues seen in the Afghanistan case emerge, the ICC might swiftly reinstate the investigation of crimes against humanity in the Philippines to ensure justice and protect victims and witnesses.

November 2021

Monthly News Updates: International Criminal Court - November 2021

By: Claire Kaula, Junior Research Associate, PILPG-NL 

In November, the International Criminal Court addressed the United Nations General Assembly and the United Nations Security Council, the Appeals Chamber issued several decisions, and the Trust Fund for Victims welcomed the first voluntary contribution from Mali.

ICC

During annual retreat ICC judges agree on amendments to the Chambers Practice Manual and Regulations of the Court

On November 19 and 20, the ICC judges held their annual judicial retreat online.  First, the retreat focused on proposals to court procedures based on the Independent Expert Review Report from 2020.  The adopted amendments include a model for court proceedings that will make trials more efficient, and the “A-B-C Approach” for transmitting victims’ applications to participate in proceedings.  Then, the judges discussed institutional issues the ICC is facing.  They agreed to continue discussing measures to address bullying and harassment in the workplace, and formed a working group to further discuss gender equality at the Court.  [November 22, 2021]

ICC President presents Annual Report to the General Assembly

On November 10, the ICC President Judge Piotr Hofmański presented the ICC’s Annual Report to the UN General Assembly.  He praised the Court’s ability to continue operations and make progress on proceedings during the COVID-19 pandemic.  Throughout the speech, he emphasized the importance of the ICC to uphold the rule of law and to prevent mass violence.  He outlined areas the Court is striving to strengthen, such as providing effective and fair justice, and enhancing the staff gender balance.  He urged states that are not parties to the Rome Statute and the Agreement on Privileges and Immunities to join, and for all states to make donations to the Trust Fund for Victims.  [November 10, 2021]

AFRICA

Mali | Ahmad Al Faqi Al Mahdi’s sentence reviewed and reduced by ICC Appeals Chamber 

In 2016, the ICC Trial Chamber VIII convicted Ahmad Al Faqi Al Mahdi as a co-perpetrator for intentionally directing attacks against ten religious and historical monuments in Mali.  The Trial Chamber sentenced Al Mahdi to nine years in prison.  The ICC Appeals Chamber reduced the sentence by two years.  In making this decision, the Appeals Chamber was mindful of the views expressed by Mali and the victims, but also considered Al Mahdi’s cooperation with the Court.  The Appeals Chamber set Al Mahdi’s new release date as September 18, 2022.  [November 25, 2021] 

Libya | ICC Prosecutor Karim A.A. Khan addresses the United Nations Security Council on the Situation in Libya

In his first briefing to the United Nations Security Council as ICC Prosecutor, Karim A.A. Khan addressed the Situation in Libya between May 18 and November 17, 2021.  During this time, the Office of the Prosecutor (the Office) received several reports on serious crimes occurring in Libyan detention facilities, and crimes against migrants.  The Office also received new reports of allegations of serious crimes occurring in Tarhunah, and new complaints of displaced persons from Benghazi.  The ICC Prosecutor emphasized Libya’s responsibility to protect their population and the importance of cooperation between Libya and the Office.  [November 23, 2021]

Sudan | ICC Appeals Chamber rejects Defense’s jurisdictional challenges in The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman

In the Abd-Al-Rahman case, the ICC Appeals Chamber unanimously rejected the Defense’s appeal claiming the Court does not have jurisdiction.  Firstly, the Chamber found no error in how the Pre-Trial Chamber defined “situation” in “terms of temporal, territorial and in some cases personal parameters.”  Secondly, the Chamber found that the lack of funding by the UN did not invalidate the referral of the case by the UN Security Council.  Thirdly, the Chamber found that although Sudan is not party to the Rome Statute, the referral resulted from serious violations of human rights and humanitarian law criminalized under international law, and part of customary international law.  As a result, the Chamber found that the ICC has jurisdiction over the case.  The trial is set to start April 5, 2022. [November 1, 2021]

THE AMERICAS

Venezuela | ICC Prosecutor opens investigation into the Situation in Venezuela and signs Memorandum of Understanding with Venezuela 

After concluding a preliminary examination, ICC Prosecutor Karim A.A. Khan opened a formal investigation into the Situation in Venezuela.  The Venezuelan Government is cooperating even though they do not believe the conditions are met for an investigation.  The ICC Prosecutor and President of Venezuela signed a Memorandum of Understanding where both parties agreed to establish mechanisms to help the investigation, and for Venezuela to have genuine national proceedings.  [November 3, 2021]

ASIA

The Philippines | The Philippines requests the Prosecution to defer investigation

Prosecutor Karim A.A. Khan notified ICC Pre-Trial Chamber I that the Philippines requested deferral of the Prosecution’s investigation.  The investigation concerns crimes against humanity during the “War on Drugs” campaign between July 1, 2016 and March 16, 2019 in the Philippines, and between November 1, 2011 and June 30, 2016 in the Davao area.  In response, the Prosecution has requested additional information from the Philippines and has temporarily suspended the investigation to assess the request.  But as is allowed under the Statute, the Prosecution will continue its analysis of the information it already has.  [November 18, 2021]

EUROPE

Malta | Malta makes its first contribution to the Trust Fund for Victims   

This year, Malta made its first voluntary contribution of 20,000 euros to the Trust Fund for Victims. The Trust Fund for Victims expressed its gratitude towards Malta for its commitment towards helping provide justice for victim-survivors of crimes under the ICC jurisdiction, even with the challenges resulting from the COVID-19 pandemic. [November 22, 2021]

November 2021

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

By: Pauline Pfaff, Junior Research Associate, PILPG-NL 

Several trials for international crimes before domestic courts have commenced or concluded this month.  The following post outlines new developments in relation to the prosecution of international crimes in national jurisdictions worldwide.

EUROPE

France | Trial against former hotel driver for complicity in Rwandan genocide commences

The trial of Claude Muhayiama for complicity in the 1994 Rwandan genocide has started before a court in Paris.  Muhayiama, a former hotel driver, allegedly drove perpetrators of the genocide to massacre sites.  This is the third trial in France in connection to the genocide in Rwanda, but the first of a person without close ties to the government or military. [November 22, 2021] 

Spain | Spanish coalition government files amendment to draft Democratic Memory Law to allow for prosecution of crimes committed during Franco rule

The Socialist Party (POSE) and Unidas Podemos, the two parties forming the Spanish coalition government, filed an amendment to the draft Democratic Memory Law, which, if adopted, would allow for the prosecution of international crimes committed during the Franco era.  The amendment would entail a reinterpretation of the 1977 Amnesty Law, which allowed for the release of political prisoners and that no offences committed by members of the dictatorial government prior to 1977 could be prosecuted.  [November 17, 2021] 

Bosnia-Herzegovina | Bosnian state court convicts two former Bosnian-Serb soldiers of war crime committed in 1992 

The Bosnian state court found Bratislav Bilbija and Djuro Adamovic, two former Bosnian-Serb soldiers, guilty of the war crime of inhumane treatment of civilians.  It sentenced the defendants to two and three years’ imprisonment respectively.  In the same ruling, the court acquitted both Bilbija and Adamovic for the counts of murder, torture, and forced disappearances, and fully acquitted a third defendant, Ranko Babic.  The acts took place in August 1992 in the village of Bukvik, close to Prijedor.  The verdict is open to appeal.  [November 16, 2021] 

Kosovo | Court of Appeals upholds judgement and sentencing against former Serb fighter for war crimes committed in 1999 

The Court of Appeals in Pristina upheld the 12-year imprisonment sentence against former Serb fighter Zoran Djokic for war crimes against civilians.  It also rejected the appeals filed by both the defense and the prosecution. The underlying acts were committed against ethnic Albanian civilians in the town of Peja/Pec in 1999 during the Kosovo War. [November 15, 2021] 

Netherlands | Dutch court allows extradition of unnamed individual to Rwanda to stand trial for genocide and crimes against humanity

The District Court of The Hague ruled in favor of the extradition to Rwanda of an unnamed person for the purpose of criminal prosecution.  The Rwandan authorities brought forward allegations of complicity in genocide and crimes against humanity to substantiate their extradition request.  The implicated individual opposed the extradition based on fair trial concerns, which were discarded by the Court.  [November 15, 2021] 

Sweden | Stockholm District court charges Lundin Energy executives with complicity in war crimes in Sudan 1999-2003

The Swedish public prosecutors formally indicted two representatives of Lundin Energy, a Swedish oil company, for aiding and abetting grave war crimes committed in Sudan between 1999 and 2003.  [November 11, 2021] 

Sweden/Albania | War crimes trial against former Iranian official commences and relocates to Albania to hear witness testimony

The trial against former Iranian official Hamid Nouri for war crimes has officially started.  It is alleged that Nouri handed out death sentences during a purge of political dissidents in 1988.  The proceedings will temporarily relocate from Sweden to Albania for a period of two weeks to hear the testimony of seven witnesses who live there in exile.  The testimony pertains to the accused’s role in the 1988 massacre of opposition members in Iran. [November 10, 2021] 

Germany | Higher Regional Court Frankfurt confirms charges for war crimes and crimes against humanity against Syrian citizen

The Higher Regional Court of Frankfurt confirmed charges against Alaa M., who allegedly committed torture and murder in a military hospital and at a detention facility of the Military Intelligence Service in Homs, Syria, between 2011 and 2012.  The first court hearing is scheduled for January 2022.  [November 10, 2021] 

Germany | Two human rights organizations file lawsuit against Belarusian officials for crimes against humanity before German court 

The World Organization Against Torture (OMCT) and the European Center for Constitutional and Human Rights (ECCHR) filed a complaint for crimes against humanity against six members of the Belarusian security forces.  The accused allegedly committed mass detentions, disappearances, sexual violence, torture, and political persecution.  [November 1, 2021] 

AFRICA 

Central African Republic | Special Criminal Court 1 charges minister with war crimes and crimes against humanity

The Special Criminal Court 1 arrested Hassan Bouba, the minister of livestock and animal health, and brought charges of war crimes and crimes against humanity against him.  Bouba is a former leader of the rebel group Union for Peace in the Central African Republic, which was responsible for various atrocity crimes between the years of 2014 and 2017.  [November 24, 2021] 

South Africa | Charges of apartheid as crimes against humanity for the first time before South African court

The Director of Public Prosecutions in Johannesburg for the first time included charges for apartheid as crimes against humanity in the revised indictment against the accused in the so-called COSAS Four case.  The case pertains to the killing and serious injury of four members of the Congress of South African Students (COSAS) by policemen in 1987. [November 23, 2021] 

Democratic Republic of the Congo | First conviction for war crimes against a former militia leader in the Kasai province

A Congolese military tribunal convicted a former militia leader for war crimes, including summary executions and looting, committed during the 2017 conflict between the Congolese army and the Kamuina Nsapu militias.  This is the first conviction of this type in the Kasai province.  The trial only lasted five days.  The military tribunal sentenced T. Mandefu, a village chief and militia leader,to death. [November 8, 2021] 

ASIA

Bangladesh | International Crimes Tribunal 1 sentences former Bangladesh Nationalist Party lawmaker to death for crimes against humanity

The International Crimes Tribunal 1 sentenced former Bangladesh Nationalist Party lawmaker Abdul Momin Talukder Khoka to death for crimes against humanity that he committed during the 1971 Liberation War.[November 24, 2021]

Big Brother Watch v. the United Kingdom: A Trend Towards Accepting Surveillance Regimes in Europe?

By: Daria Stanculescu, Junior Research Associate, PILPG-NL

On May 25, 2021, the Grand Chamber of the European Court of Human Rights (ECtHR) issued its judgment in the joined cases Big Brother Watch and Others v. the United Kingdom.  In its decision, the Court ruled on the compatibility of mass surveillance systems with Articles 8 and 10 of the European Convention on Human Rights (ECHR).  The Court’s judgment comes at a time where states parties to the ECHR are increasingly making use of mass surveillance regimes in the name of national security.  This blog post will examine the Court’s decision in Big Brother Watch in the context of the apparent shift in Europe towards the general acceptance of surveillance regimes. 

Background of the Case

Big Brother Watch is the first ECtHR judgment that focuses on mass surveillance since Edward Snowden revealed the widespread use of surveillance and intelligence programs by national intelligence services in the United States (US) and the United Kingdom (UK) in 2013.  A combination of NGOs, academics, and journalists lodged the applications in Big Brother Watch between 2013 and 2015.  

The applicants sought to challenge three surveillance regimes of the Government Communications Headquarters (GCHQ) in the UK: the bulk interception of communications, intelligence sharing with foreign governments, and obtaining of communications data from service providers.  The applicants argued that the three systems breached the right to privacy under Article 8 of the ECHR.  Several applicants also argued that the UK violated the right to freedom of expression under Article 10 of the ECHR.  The UK government conversely argued that these regimes were vital for identifying national security threats.  In its decision, the Court found that the bulk interception regimes breached Articles 8 and 10 ECHR.  It similarly found that the regime allowing GCHQ to obtain communications data from service providers breached Articles 8 and 10 ECHR as it was not in accordance with the law.  However, the Court held that receiving intelligence from foreign governments did not violate Article 8 ECHR.  

An interesting aspect of the judgment is that the Court confirmed that bulk interception regimes do not in and of themselves violate Article 8 of the ECHR.  The ECtHR accepted that these systems are “of vital importance” to states parties to the Convention in identifying threats to national security.  Moreover, the Court held that states have a wide margin of appreciation “in choosing how to best achieve the legitimate aim of protecting national security.”  This means that, in principle, the Court considers that these regimes comply with the ECHR, as long as they respect several safeguards set out in the judgment.  For example, the Court held that bulk surveillance mechanisms must be subject to “end-to-end safeguards.”  This means that states should assess the necessity and proportionality of the measures being taken and the bulk interception should be subject to independent authorization.  Furthermore, the operation should be subject to supervision and independent review.  The ECtHR held that the UK’s bulk interception regime did not meet these requirements regarding end-to-end safeguards.

Analysis

The ECtHR’s approach in Big Brother Watch may be seen as a step towards the “normalization of mass surveillance.”  While the ECtHR noted that these systems must meet various safeguards to comply with the Convention, the Court did not question the operation of these systems as a whole. 

This approach of applying less strict standards of scrutiny in data protection cases can also be seen in the jurisprudence of the Court of Justice of the European Union (CJEU).  Initially, this Court took a pro-privacy stance.  In Digital Rights Ireland, the CJEU declared the EU Data Retention Directive void, as it provided for indiscriminate data retention.  Subsequently, in Tele2 Sverige, the CJEU further held that EU member states could not establish indiscriminate data retention regimes.  However, more recently, in La Quadrature du Net, the CJEU has taken a different approach.  In this case, the Court held that, in certain circumstances, EU member states may adopt legislation which provides for indiscriminate data retention.  

The recent judgments of the ECtHR and CJEU in Big Brother Watch and La Quadrature du Net, respectively, can thus be considered more favorable to national surveillance regimes.

However, this approach has not been universally endorsed.  Other international institutions have expressed reservations to this approach.  Importantly, the United Nations Office of the High Commissioner for Human Rights (OHCHR), in a 2014 Report, highlighted that “governmental mass surveillance [is] emerging as a dangerous habit rather than an exceptional measure.”  Furthermore, the Report noted that “the very existence of a mass surveillance program thus creates an interference with the right to privacy.”  More recently, in 2019, the United Nations Special Rapporteur on the freedom of opinion and expression has called for tighter regulation on the use of surveillance technology until states develop frameworks that comply with human rights.  These statements show that the European approach has thus far not been adopted at international level. 

Conclusion

In the context of ECHR states parties’ increasing reliance on mass surveillance systems, the importance of the ECtHR’s judgment in Big Brother Watch can hardly be exaggerated. The Court’s decision is aligned with the approach of the CJEU, which seems to point towards a dialogue between the two courts, both of which have begun to allow surveillance regimes that meet certain safeguards. It remains to be seen whether, in future judgments, the ECtHR and the CJEU will continue this approach or whether these courts will revert to a privacy-oriented approach.

Can the ambitious Escazú Agreement live up to its expectations?

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

The Escazú Agreement, the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, entered into force on April 22, 2021, Earth Day.  The treaty is the first binding instrument on environmental issues adopted in the region, and it is the first treaty ever to include human rights provisions protecting environmental activists.  Although the treaty proclaims an advancement of environmental and human rights protection, few states have ratified it.  This blog will examine how the agreement’s provisions extend the human rights protection of environmentalists and indigenous groups, and whether it can aspire to be effective considering the absence of key states from the treaty. 

The agreement

The Escazú Agreement originated from the 2012 United Nations Conference on Sustainable Development in Rio de Janeiro (Rio+20).  States concluded negotiations on the agreement in March 2018, in Escazú, Costa Rica, under the auspices of the UN Economic Commission for Latin America and the Caribbean (ECLAC).  The objective of the agreement is to implement Principle 10 of the 1992 Rio Declaration on Environment and Development, which provides that states should facilitate access to information and public participation in decision-making related to environmental issues, as well as provide access to effective judicial means of redress for environmental harm.

The two main innovations of the agreement, as noted by commentators, are the provisions that link environmental protection to human rights and the provisions protecting environmentalists.

Human rights and environmental protection

Article 1of the Escazú Agreement recognizes the link between human rights and the protection of the environment.  It explicitly notes that the treaty’s objective is to “contribut[e] to the protection of the right of every person of present and future generations to live in a healthy environment and to sustainable development.”  Furthermore, Article 4 imposes on states the obligation to guarantee the right to a healthy environment and other universally recognized rights related to the agreement. 

The Inter-American Court of Human Rights, in the case of Lhaka Honhat (Nuestra Tierra) v. Argentina, had previously already elevated the right to a healthy environment to a human right.  Its introduction into the agreement represents a codification of the norm’s human right status.  In fact, the agreement goes one step further by extending the human right to a healthy environment to future generations and by including sustainable development as a human right. 

The protection of environmental human rights defenders

Article 9 of the Escazú Agreement provides that states shall guarantee the safety of environmentalists to promote and defend human rights in environmental matters, free from threat, restriction, and insecurity.  Additionally, the provision requires that states recognize, protect, and promote environmentalists’ right to life, integrity, and freedom of expression, assembly, and movement.  Furthermore, it confers upon states the obligation to take effective measures to prevent, investigate, and prosecute attacks and threats to environmentalists.

The objective of these provisions is to impose on states the obligation to combat attacks and threats directed at environmentalists, which have been on the rise in Latin America.  According to a report, more than half of the environmentalists killed worldwide in 2018 were from the region.  At the same time, the lack of effective mechanisms to seek accountability and justice causes many of these cases to go unpunished.

The absence of key states

While the agreement provides promising innovations for the protection of the environment and environmentalists, the lack of ratification by important states might negatively impact its effectiveness.  Of the 24 states that signed the agreement, only 12 have currently ratified it.  The list of states that have not ratified the treaty include Colombia, Brazil, Guatemala, and Honduras.  These are four of the five states with the highest number of environmentalists killed in the region.  In Colombia alone, 64 environmentalists were killed in 2019.  If these states do not ratify the agreement, it will likely produce modest effects, limited to few parts of the Latin American region.

Concluding remarks

The Escazú Agreement recognizes the right to a healthy environment and the right to sustainable development as human rights.  It also establishes binding obligations for states to protect environmentalists from increasing attacks.  These provisions present an encouraging and innovative approach to dealing with the lack of accountability within Latin American states’ domestic legal systems.  However, the ratification of the treaty by the states with the highest rates of attacks on environmentalists, including Colombia, Brazil, Guatemala, and Honduras, might be an important precondition for the treaty’s effectiveness.