December 2019

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

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

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

EUROPE

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

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

Belgium | Former Rwandan civil servant convicted of genocide 

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

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

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

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

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

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

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

LATIN AMERICA

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

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

AFRICA 

Uganda | Ugandan court issues arrest warrant against Bashir 

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

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

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

December 2019

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

Monthly News Update: Southern Cameroons – December 2019

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

Rebels shoot at passenger plane

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

Underfunding and security issues revolving humanitarian work 

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

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

Measles epidemic

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

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

Special status for Anglophone regions in Cameroon

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

Freedom of the press in Cameroon 

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

Basis and Implications of the ICC’s ruling against Myanmar

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

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

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

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

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

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

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

ASP18 Side Event: Accountability for International Crimes Committed Against Ethnic Minorities in Myanmar: Discussing Complementary Avenues for Justice

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 4 (5 December 2019)

Name of the Event: Accountability for International Crimes Committed Against Ethnic Minorities in Myanmar: Discussing Complementary Avenues for Justice (Side Event co-hosted by Canada, Liechtenstein, the European Center for Constitutional and Human Rights, The Global Justice Center, The Global Centre for the Responsibility to Protect, the Women's Initiatives for Gender Justice)

Overview by: Erez Roman, Junior Research Associate PILPG-NL

Main Highlights:

• Several panelists mentioned the scope of suffering in Myanmar and that along with the Rohingya minority group, other minority groups have suffered harm.

• Most panelists applauded the case brought before the International Court of Justice by the Gambia but they reminded participants that more has to be done nationally and internationally.

Summary of the Event:

The event began with the moderator, H.E. Mr. Christian Wenaweser, Permanent Representative of the Principality of Liechtenstein, introducing the panelists.

The first panelist, Dr. Priya Pillai, international lawyer & consultant; head of the Secretariat of the Asia Justice Coalition, spoke about the legal aspect of the situation at hand and focused on the case between the Gambia and Myanmar before the International Court of Justice (ICJ) and the legality of the procedures before it regarding the Rohingya crisis. Dr. Pillai praised the Gambia for bringing the case before the ICJ but questioned reasons for which other states did not do so.

The second panelist was Tun Khin, Founder & President of the Burmese Rohingya Organization UK. Mr. Khin spoke briefly about his experience as being Rohingya and shared some of his stories. Regardless of the tragedies that the Rohingya minority suffered, Mr. Khin stated that the group is not looking for revenge but for justice to be served. Moreover, Mr. Khin was optimistic and said that the case brought before the ICJ suggests that the wheels of justice are moving. He expressed hope that the case will create pressure to stop the perpetrators of horrific acts.

The third panelist was Andreas Schüller, Program Director International Crimes and Accountability of the European Center for Constitutional and Human Rights (ECCHR). Mr. Schüller spoke about the role of law in Myanmar and mentioned that substantial amount of progress has been made in the last 15-20 years. Nevertheless, he reiterated the importance not only of justice being rendered but also its appearance and translation to the national people in Myanmar.

The fourth panelist was Shireen Huq, Founder of Nariphokko, who reiterated the important role played by ethnic differences in the current crisis regarding not only the Rohingya minority but other minorities as well. Furthermore, she tied this issue with the lack of inclusion of ethnic differences in certain agreements which followed the unrest that was taking place in the country. Nevertheless, Ms. Huq stated that although certain improvements are visible, they are not sufficient and further actions need to be taken. Ms. Huq concluded her speech by calling for pressure to be placed on the UN Security Council to take official actions to halt the horrific scenes.

The fifth panelist was Razia Sultana, Rohingya Lawyer and Founder of the Rohingya Women Welfare Society. Ms. Sultana spoke about the sexual violence committed by the armed forces mainly against the Rohingya group but also different minorities and emphasized the wide scope of the crimes committed. Ms. Sultana also mentioned the recent democratic transition in Myanmar and voiced her opinion that many changes still need to be made.

The last speaker was Akila Radhakrishnan, President of the Global Justice Center. Ms. Radhakrishnan spoke about the work of Global Justice Center. She mentioned research she undertook which included conversing with different groups of people including border guards responsible for the border between Myanmar and Bangladesh. After mentioning her research, Ms. Radhakrishnan praised Bangladesh and the international community for their actions, however she also stated that these are not sufficient to end all the suffering in Myanmar.

Following the speeches given by the respected panelists, the moderator gave the floor to the audience to ask questions. One of the questions regarded the role of the UN Security Council and why more attention is not placed on investigating the Rohingya crisis though the UN Security Council. Furthermore, a question regarded the possibility of creating a state for the Rohingya. The panelists answered these two questions by stating that due to political reasons, approaching the situation at hand through the UN Security Council would be difficult to almost impossible. As for the second part, the panelists suggested that at the moment, it is more important to end the suffering.

ASP18 Side Event: Colombia: the role of the ICC in the context of an unfinished transition

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 3 (4 December 2019)

Name of the Event: Colombia: the role of the ICC in the context of an unfinished transition (Side Event co-hosted by Avocats Sans Frontieres – Canada, the Coalition for the International Criminal Court (CICC), Comisión Colombiana de Juristas, Colectivo de Abogados Jose Alvear Restrepo, Sisma Mujer, Colombia Diversa, Corporacion Humanas).

Overview by: Leonore ten Hulsen, Junior Research Associate PILPG-NL

Main Highlights:

The transition to justice in Colombia is not yet completed. The panelists underlined the important role of the ICC in this transition. They asked the ICC to continue with its preliminary examination, including determining whether proceedings carried out in Colombia are genuine, as well as to continue with the dialogue with different national authorities. The ICC has functioned as a shield to protect some of the institutions created as part of the peace agreement that are now under attack by several stakeholders at the national level. The involvement of the ICC is an aid in striving to justice for victims and the fight against impunity of responsible actors in Colombia.

Summary of the Event:

This event in Spanish focused on transnational justice in Colombia, both through local and international means.

The first speaker talked about delayed justice for victims of crimes committed 15 years ago. He noted that the true transition to justice in Colombia is not yet completed. There has been continued political violence in Colombia, and certain regions endure the continuation of the internal armed conflict. These actors continue to commit violent crimes including attacking social leaders. In the last 3 years, the situation has worsened. Last year, 123 cases of violence against human right defenders were documented by the UN. The first speaker noted that each day a human rights defender is killed in Colombia and that these extrajudicial executions are very worrisome. Secondly, the speaker noted there has been an increase in sexual violence. There are 127 cases of sexual violence recorded in Colombia this year. There is presently a lot of impunity. The speaker argued that there is some progress towards justice, but it is small if one looks at the conflict at large. Moreover, there are state actors that were perpetrators who are still commanding armed forces, which makes it difficult to bring them to court. A review of the current judicial mechanisms is necessary, the speaker concluded. The most important crimes are committed against human rights defenders. Moreover, the Special Jurisdiction for Peace is still recent. Therefore, it was noted that the ICC should continue its assessment on whether the proceedings are genuine and make sure that the alleged crimes committed after the peace agreement are also investigated and prosecuted.

The second speaker continued to note that there is a lot of impunity in the Colombian armed conflict which the ICC and the international community could address. Especially women, LGBTQ and indigenous communities are vulnerable. In a large number of cases concerning LGBTQ victims, perpetrators do not face punishment. The seriousness and lack of resources should be taken into account by the ICC. The perpetrators carry a responsibility over their actions that should not be forgotten. The speaker underlined that a preliminary examination is very important as justice should be strived for.

The third speaker referred to the fact that a lot of the violence against women in Colombia is linked to the armed conflict. Civilians are experiencing sexual violence committed by armed groups. The conflict is about the control of regions and there is a series of human rights violations as a result of this conflict. The link between sexual violence and armed violence has already been seen in previous cases at the ICC. However, the international standards as well as the ICC’s jurisprudence on this issue have not been implemented at the national level. This has resulted in the exclusion and inadequate protection of victims of sexual violence. Positive complementarity is essential for the adoption and implementation of these standards in the national legal framework, the third speaker highlighted.

The fourth speaker stated that there has been an incomplete transition of justice so far. Most victims never saw justice and a large group of the victims is part of the LBGTQ community. The fifth speaker continued by speaking of the fact that an armed conflict has been ongoing in Colombia for many years and that the ICC’s Office of the Prosecutor started its preliminary investigations in 2004. The speaker noted that looking at the crimes committed since that time, there are still situations of absolute impunity. There should be complementarity if the ICC were to assist Colombia in its efforts towards justice. It is still too early to know the results of the Special Jurisdiction for Peace. It was stated that the preliminary examination should continue and should include the alleged crimes committed by high-ranking officials and third parties that have not been recognized as perpetrators.

Impunity means that there has been a preliminary examination, but the perpetrators still need to be prosecuted. A complete transition to justice requires true results that proof success with court outcomes. What has been achieved in the past 15 years against impunity?

The audience posed a question on the role of corruption in relation to the crimes committed in Colombia. The speakers answered that this is one of the aspects of the bigger picture that needs to be taken into account when striving for transitional justice. Moreover, (international) law enforcement collaborations are important to address a macro level of criminality. In any proceedings of transnational justice, there must be accountability.