The Criminal Case against Lukashenko before German Courts and the Issue of Immunity

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

A group of ten Belarusians has requested that the German Federal Prosecutor’s Office investigate and prosecute the President of Belarus, Alexander Lukashenko, and other security officials for alleged human rights violations during a police crackdown on protests following presidential elections in 2020.  The victims claim they were subjected to persecution, arbitrary arrests, and torture at the hands of the state police, which amount to crimes against humanity as defined in the Rome Statute of the International Criminal Court and in German law.  On May 26, the German press reported that the Prosecutor would set up a preliminary observation process.

This blog will look at the victims’ claims, the reasons behind filing the case in Germany, and how Lukashenko’s immunity as president of Belarus might affect the German courts’ competence to hear the case against him.

Background of the case

In August 2020, Alexander Lukashenko claimed a landslide victory in the Belarusian presidential elections amid widespread allegations of electoral fraud.   Those allegations were exacerbated by the previous arrest of two of Lukashenko’s opponents who were barred from running ahead of the polls. 

The election results sparked mass protests and people demanding that Lukashenko step down.  Belarusian police responded with violence and repression, arresting around 3,000 people on the first night following the election.  Authorities also temporarily detained Ms. Svetlana Tikhanovskaya, a leading opposition candidate, who refused to accept the result claimed by Lukashenko, and then exiled her to Lithuania.

On December 4, the United Nations High Commissioner for Human Rights (OHCHR) delivered a report at the Intersessional meeting of the Human Rights Council detailing that 27,000 people had been arrested in peaceful public demonstrations, for charges such as violating the public order.  The High Commissioner of Human Rights raised concern for the up to 2,000 complaints of torture and other cruel, inhumane, or degrading treatment that had been lodged with the OHCHR by victims and activists.  Some of the methods described by the claimants include food and sleep deprivation, arbitrary beating, refusal of medical treatment, confinement in small cells, and forcing victims to kneel with their hands tied behind their backs.

The victims’ claims

In their request to the German Prosecutor, the claimants argued that the conduct of Mr. Lukashenko, other state officials, and police officers amounted to crimes against humanity, as defined in Article 7 of the Rome Statute and Section 7 of the German Code of Crimes Against International Law (CCAIL). 

Although the alleged crimes were not committed in German territory, and neither the perpetrators nor the victims are German, the attorneys argued for universal jurisdiction to bring the cases to German courts.  Under universal jurisdiction, the criminal courts of any state may prosecute serious international crimes, such as crimes against humanity, war crimes, genocide, and torture, as established in the Rome Statute and the Convention Against Torture (CAT) and incorporated into the CCAIL. To back their claim, the lawyers referenced the recent decision by the Higher Regional Court of Koblenz, sentencing Syrian officer Eyad Al Gharib to four and a half years in prison for torture and unlawful imprisonment of individuals in Syria, which amounted to crimes against humanity.

Lukashenko’s immunity

The sentence against the Syrian official might be an important precedent for grounding the German courts’ jurisdiction for the prosecution of Belarus security officers.  However, in the case of Lukashenko, it is uncertain how the German prosecutor and the German courts will deal with his immunity as head of state. 

It is a norm of customary international law that states’ high-ranking officials, namely the head of state, the head of government, and the foreign affairs minister, because of their importance in the functioning of the state, have personal immunity before domestic criminal courts of other states.  That means that they cannot be criminally prosecuted in other states for any official or personal acts.  The International Court of Justice (ICJ) confirmed this interpretation of the norm in the Arrest Warrant case (Congo v. Belgium).

There are some commentators, however, that argue that there is an exception to personal immunity in the case of grave international crimes.  According to them, the laws prohibiting grave international crimes are peremptory norms, norms that cannot be derogated from, while the rule of personal immunity is not.  Therefore, they argue that the prohibition against international crimes should prevail over immunity.  However, this argument is not backed by international custom, as concluded in a report by the United Nations’ International Law Commission (ILC).

It might also be possible to argue that Lukashenko is not the legitimate head of state due to the allegations of electoral fraud, and that, therefore, he does not enjoy immunity.  However, this also has little grounding in international law. 

It is possible, therefore, that German courts would dismiss a criminal case against Lukashenko due to his position as president of Belarus.  Nonetheless, as held by the ICJ in the Arrest Warrant case, and noted by the ILC, personal immunity is temporary and ceases when the official leaves office.  Thus, when Lukashenko leaves the presidency, he might be subject to criminal prosecution before foreign courts.

Concluding remarks

In accordance with the precedent set out in the case of Syrian officer Eyad Al Gharib, it is likely that the German courts will assert universal jurisdiction over the alleged crimes committed by security officials in Belarus.  However, with regards to Lukashenko, it is possible that the Federal Prosecutor will only take the case forward after he leaves the presidency, and no longer enjoys personal immunity.

The Afrikaans Language Debate Continues at Stellenbosch …

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

Stellenbosch University’s (SU) language policy has, again, come into the forefront of public debate in South Africa.  Earlier this year, reports surfaced that residence leaders told Afrikaans-speaking students not to speak Afrikaans at school events or privately among themselves on campus, and to converse in English instead.  The University has denied that its language policy bans the use of Afrikaans and says that it has investigated and addressed these isolated incidents accordingly.  Nevertheless, the situation has sparked outrage among Afrikaans advocacy groups who believe that SU is unfairly discriminating against Afrikaans-speaking students in an effort to fully anglicize the University.  These groups, along with some SU students, have lodged complaints at the South African Human Rights Commission (SAHRC), which is currently investigating the matter. 

This blog post will examine SU’s language policy from the perspective of international human rights instruments and the South African Constitution.  While Stellenbosch has made significant strides to become a more accessible and inclusive University, banning the use of Afrikaans on campus may infringe on international and constitutional principles concerning minority language rights. 

The Right to Language and Education 

Discrimination on the basis of language is prohibited in a multitude of international/regional treaties and non-binding human rights declarations.  Minority groups are also afforded special protections to not be denied the use of their languages under Article 27 of the International Covenant on Civil and Political Rights (ICCPR).  The Human Rights Council (HRC) has recognized the negative impact that colonization in the past and globalization in the present have had on minority languages across the world, specifically their minimized use in education.  As such, in order to meet international human rights obligations, the HRC has recommended that states provide education in minority languages where it is reasonably practicable to do so according to regional factors and resources.  The Council has also insisted on a broad definition of the term “minority,” which includes any “ethnic, religious or linguistic [group] which constitutes less than half of the population in the entire territory of the state.” 

The right to be educated in a particular language has not been examined in depth by treaty bodies with jurisdiction over the African continent.  However, the African Commission of Human and Peoples Rights has held that states have an obligation to provide certain public services in official languages as set out in their respective constitutions.  Moreover, the Human Rights Committee has found that states should implement non-official languages in public administration where there exists a significant historic minority population, such as the Afrikaans-speaking population in Namibia.

The South African Constitution of 1996 recognizes 11 official languages, all of which enjoy equal status in public administration.  Nine of these languages are indigenous African languages while two, English and Afrikaans, have European origins.  Like the international instruments, the Constitution prohibits discrimination on the basis of languages, and individuals belonging to linguistic groups may not be denied the right to speak their languages.  While today native Afrikaans-speakers make up a minority of about 13% of South Africa’s population, Afrikaans was historically privileged as the dominant language of instruction at many universities.  

For these reasons, Section 29 of the Constitution explicitly recognizes the need to rectify historic inequalities in education and puts a positive duty on the state to ensure that tertiary education is “progressively available and accessible” for all students who wish to pursue it.  Under Section 29, students in South Africa are also afforded “the right to receive education in the official language or languages of their choice” so long as it is equitable and practicable, with special emphasis given to “the need to redress the results of past racially discriminatory laws and practices.” 

Stellenbosch’s 2016 Language Policy 

Stellenbosch was founded as an Afrikaans university in the late 1800s.  However, with the fall of Apartheid, the general rise of English as a global language, and pressure from student protest groups, SU has undergone a substantial shift towards English teaching.  In 2016, Stellenbosch overhauled its language policy from its previous 50/50 English-Afrikaans parallel teaching model to its current formulation making English the predominant language of instruction.  According to the policy’s preamble, these changes were made in light of Section 29 of the Constitution, as English enjoys much wider speakership and preference across South African’s historically disenfranchised black community. 

This change was not greeted kindly by some members of the Afrikaans-speaking community, which saw the shift to English predominance as an infringement of their Constitutional language and education rights.  SU’s language policy was nevertheless upheld by the South African Constitutional Court in 2019, which found that the diminished use of Afrikaans was justifiable under Section 29 since it was aimed at making the University more accessible.  While the Court sympathized with applicants’ concern regarding the general disuse of Afrikaans at South African universities against the “deluge of English,” it held that this was an unfortunate reality faced by minority languages worldwide and not the responsibility of a single university to rectify. 

Analysis 

The present issue at Stellenbosch concerns the use of Afrikaans outside of classrooms, meaning, at school social events as well as in private settings among students.  The language policy provides that “in residences and other living environments, language is used in such a way that, where reasonably practicable, no stakeholder is excluded from participating in any formal activities in these environments.”  While this provision is not in itself infringing, the way it may have been implemented by some University officials could be problematic from a constitutional and human rights perspective.  

The Constitutional Court did not look into student social life in-depth in 2019 but it did mention the University’s past predominance of Afrikaans in “other aspects of campus life, including residence meetings and official University events,” which had exclusionary effects on black students.  Accordingly, SU’s insistence on the use of English for official school activities could be justified as a means of creating a more inclusive environment in school-related activities.  An outright ban for students on campus to converse in Afrikaans would likely go beyond this aim.  As stated by the HRC, “for language rights in private activities, the defining principle would be a laissez-faire approach” where state institutions do not interfere with what languages individuals use when communicating with one another.  This is especially important when the language in question is spoken by a minority group, like Afrikaans native speakers in South Africa. 

Conclusion 

Stellenbosch University’s language policy is laudable as it seeks to remove some of the historic privileges enjoyed by Afrikaans-speaking students to create a more accessible and welcoming environment for its diverse student population.  Yet, if it did, in fact, prohibit Afrikaans on campus, it may have discriminated against a significant segment of its student body. 

Nationality vs. National Origin: A Difference of Interpretation

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

On February 4, 2021, the International Court of Justice (ICJ, the Court) issued its judgment in the case Qatar v. United Arab Emirates.  Qatar brought proceedings against the United Arab Emirates (UAE) for alleged breaches of the Convention on the Elimination of All Forms of Racial Discrimination (CERD).  In parallel, Qatar also brought proceedings regarding the same issue before the CERD Committee, the specialized body that oversees the implementation of the CERD.  While the Committee held that it had jurisdiction in this case, the Court determined that it did not have jurisdiction over the subject matter of the dispute, thus upholding UAE’s first objection on admissibility.  This blog post will examine the differing conclusions of the ICJ and the CERD Committee.

Background of the Case

In 2017, during the Qatar diplomatic crisis, the UAE adopted several measures directed at Qatari nationals.  These included travel bans, expulsions, and suppression of Qatari media outlets.  In response, Qatar instituted proceedings before both the CERD Committee and the ICJ, claiming that the measures discriminated against Qataris based on their nationality.  Qatar argued that the term “national origin”, which is one of the prohibited grounds of discrimination in Article 1 of the CERD, encompasses the concept of nationality.  The UAE, on the other hand, argued that national origin and nationality are two different concepts, and the latter is not covered by the CERD.   

In Qatar v. UAE, the CERD Committee referred to its General Recommendation XXX, in which it asserted that differential treatment based on nationality may constitute discrimination.  It also made reference to its practice of calling on states to address discrimination against non-citizens on the basis of their nationality.  Ultimately, the CERD Committee concluded that it had jurisdiction to examine cases “when confronted with differences of treatment based on nationality”.  The ICJ did not follow the Committee’s interpretation in this case, concluding that it did not have jurisdiction, as current nationality is not covered by the term “national origin” in Article 1(1) CERD.  

 Differing Interpretations 

While the Court is not bound by the decisions of international human rights mechanisms, it has previously emphasized the importance of the interpretations provided by these mechanisms.  In Diallo, the Court interpreted the provisions of the International Covenant on Civil and Political Rights (ICCPR).  In that case, the Court emphasized that it “should ascribe great weight” to the interpretation given to the ICCPR by the Human Rights Committee, the international human rights mechanism that monitors the implementation of that instrument.  The Court asserted that the independent mechanism was established “specifically to supervise the treaty” and that considering the interpretation of human rights mechanisms helps achieve “the necessary clarity and essential consistency of international law”.  

In Qatar v. UAE, the Court diverged from the interpretation provided by the CERD Committee without providing a clear explanation for its differing interpretation.  As pointed out by dissenting Judge Bhandari, the fact that the Court “should ascribe great weight” to the interpretation of the CERD Committee was not taken into account in this case.  Also, dissenting Judge Robinson observed that the Court did not provide an adequate explanation for not following General Recommendation XXX.  The differing interpretation and the lack of an explanation by the ICJ may affect the clarity and consistency of international law that the Court referred to in Diallo.

Conclusion

In Qatar v. UAE, the ICJ came to a different conclusion than the CERD Committee.  This is generally unproblematic since the Court is not bound by the decisions of treaty mechanisms.  However, the ICJ did not provide a clear and sufficient explanation for this differing interpretation.  It remains to be seen whether the Court will provide a more detailed explanation in similar future decisions. 

The Netherlands and Canada v. Syria: pursuing state responsibility for acts of torture during the Syrian conflict

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

On September 18, 2020, the Dutch government announced its decision to hold Syria responsible under international law for gross human rights violations and torture during the Syrian conflict.  In a diplomatic note addressed to Syria, the Netherlands reminded the Syrian government of its international legal obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), recalled it to end impunity, and demanded justice for the victims.  

Following the decision by the Dutch government, Canada also announced it would hold Syria accountable for human rights violations since the start of the Syrian conflict in 2011.  In a joint statement, the Minister of Foreign Affairs of Canada, Marc Garneau, and the Minister of Foreign Affairs of the Netherlands, Stef Blok, addressed the gross human rights violations by the Syrian government, including torture, murder, forcible disappearances, and chemical weapons attacks against civilians.  Since 2011, more than 200,000 Syrian civilians have died and 100,000 people are still missing.  Moreover, six million Syrians have been displaced and 5.5 million people have fled the country.  In March 2021, both states reaffirmed that they are committed to pursuing all diplomatic options to resolve the dispute with Syria.  If the diplomatic route fails, they will pursue joint legal action before the ICJ.

This blog post will focus on the right of non-injured states to invoke state responsibility for violations of obligations owed to the international community, or to all other states.

Accountability efforts for Syria

For the past 10 years, the international crimes and human rights violations in Syria have largely remained unpunished and perpetrators have not been held responsible.  International efforts to hold Syria accountable have been constrained following the vetoed resolution by China and Russia to refer the situation in Syria to the International Criminal Court (ICC).  Recently, some European states have initiated trials against Syrian officials for war crimes and acts of torture based on universal jurisdiction.  Nonetheless, the efforts are limited to perpetrators who have made their way to European states that are willing to exercise universal jurisdiction.  The legal efforts by the Netherlands and Canada could eventually fill this accountability gap that has remained since the start of the conflict.

State responsibility by non-injured states

Even though the Netherlands and Canada have been involved in the international campaign against ISIS in Syria and Iraq, they are not directly affected by the alleged human rights violations of the Syrian government.  The ICJ has recognized that states that are not directly affected by the violations of international legal obligations may have the right to invoke responsibility against another state.  In the Barcelona Traction case (Belgium v. Spain), the Court recognized this right. It argued that there are legal obligations that are in the interest of the international community as a whole, such as the prevention of acts of genocide or other grave types of human rights violations.  These obligations are known as erga omnes obligations, meaning that all states are entitled to invoke the responsibility of another state.

The International Law Commission codified the right of non-injured states to invoke the responsibility of another state in Article 48 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA).  According to Article 48 of ARSIWA, any state that is not directly affected is entitled to invoke the responsibility of another state if that state violates an obligation owed to a group of states and established for the protection of a collective interest.  Moreover, the non-injured state may invoke state responsibility if an obligation is breached that is owed to the international community as a whole.  

In Belgium v. Senegal, the ICJ explicitly recognized that UNCAT sets out erga omnes obligations regarding the prohibition of torture.  This was the first case in which a non-injured state invoked responsibility for a violation of this Convention.  The Court identified the prohibition of torture as a peremptory norm (jus cogens), which means that it is a general norm of international law that has been accepted and recognized by the international community as a whole.  The Court considered that states parties to the UNCAT have a “common interest to ensure (…) that acts of torture are prevented” and to bring perpetrators to justice.  Based on the legal nature of the prohibition of torture, the Court defined the obligations under the UNCAT as “obligations erga omnes partes,” meaning that all states parties have an interest in compliance with the relevant provisions of the UNCAT.

Regarding the Dutch and Canadian cases against Syria, since there is legal precedent and all three states are parties to the UNCAT, the Netherlands and Canada can bring Syria before the ICJ for the violations of the UNCAT.  Article 30(1) of the UNCAT provides that the ICJ has jurisdiction to settle disputes once negotiations and arbitrations have failed.  None of the aforementioned states have made a reservation to this provision.  Considering that the ICJ has recognized the prohibition of torture as a jus cogens norm, the legal obligations of the UNCAT are considered erga omnes obligations.  Thus, all states parties have a common interest that Syria complies with the relevant obligations under the UNCAT, ceases any further violations, and brings the perpetrators to justice.   Therefore, the Netherlands and Canada can invoke Syria’s responsibility for the alleged violations of its obligations under the UNCAT if the negotiation efforts fail.

Conclusion

The joint legal efforts by the Netherlands and Canada are a significant step in holding Syria accountable for human rights violations and achieving justice for victims.  While there have been several successful domestic prosecution cases against Syrian perpetrators of war crimes and human rights violations, those in the highest echelons of power have remained unpunished.  The right to invoke Syria’s responsibility enables the Netherlands and Canada to hold the Syrian government accountable for acts of torture, which means that the perpetrators that bear the greatest responsibility can be held accountable.  Even though Syria has agreed to engage in negotiations with both states, it remains to be seen whether the diplomatic talks will be successful.  Nevertheless, the Netherlands and Canada have reiterated that they will not hesitate to take the case to the ICJ if the negotiations fail. 

May 2021

Monthly News Update: International Criminal Court – May 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, a confirmation of charges hearing, a sentencing verdict, and an address by the ICC Prosecutor to the United Nations Security Council.  The presented information is drawn from different online news platforms and ICC documents.

ICC

ICC Principals adopt High-Level Statement on Gender Equality

ICC President Judge Piotr Hofmański, ICC Prosecutor Fatou Bensouda, and ICC Registrar Peter Lewis adopted a High-Level Statement on Gender Equality.  The statement reaffirms the ICC’s commitment to achieving gender equality, as well as a safe and inclusive workplace and environment.  This commitment will be implemented through the goals and priorities set forth in the ICC’s Strategic Plans for 2019-2021 and the five priority areas from its Staff Wellbeing Framework. [April 30, 2021]

AFRICA

Sudan | Confirmation of charges hearings in The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman.

From May 24 to 26, Pre-Trial Chamber II held confirmation of charges hearings in the case The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman.  According to the Prosecution's Document Containing the Charges, they suspect Mr. Abd-Al-Rahman of 31 counts of war crimes and crimes against humanity allegedly committed between August 2003 and April 2004 in Darfur.  Per the Regulations of the Court, Pre-Trial Chamber II will deliver its written decision within 60 days of the date on which the confirmation hearings end. [May 17, 2021]

Libya | Statement of the ICC Prosecutor to the UN Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011)

On May 17, ICC Prosecutor Bensouda addressed the United Nations (UN) Security Council regarding the situation in Libya pursuant to UN Security Council Resolution 1970 of 2011.  She repeated the need to address the violence and political turmoil, stressing that “there can be no lasting peace without accountability and justice.”  Further, she expressed concern over the information of ongoing crimes, as well as the failure to execute several ICC arrest warrants. [May 17, 2021] 

Uganda | Trial Chamber sentences Dominic Ongwen to 25 years’ imprisonment

Trial Chamber IX sentenced Dominic Ongwen to 25 years’ imprisonment.  The Chamber had previously convicted Mr. Ongwen of crimes against humanity and war crimes committed in Uganda.  In its decision, the Trial Chamber gave a certain weight to the mitigating circumstances arising out of Mr. Ongwen’s childhood, his abduction by the Lord’s Resistance Army (LRA), and his early stay with the LRA.  The defense has indicated that it will appeal. [May 6, 2021]

MIDDLE EAST

Situation in Palestine | ICC Prosecutor Bensouda’s Statement on Recent Escalating Violence

ICC Prosecutor Bensouda issued a short statement on the situation in Gaza and the West Bank including East Jerusalem.  She noted her concern regarding the escalation of violence and possible commission of crimes under the Rome Statute.  She also added: “my Office will continue to monitor developments on the ground and will factor any matter that falls within its jurisdiction.”  [May 12, 2021]

ASIA 

Afghanistan | Office of the Prosecutor met with a high-level delegation of the Islamic Republic of Afghanistan

ICC Prosecutor Bensouda and her team met with a high-level delegation from the Islamic Republic of Afghanistan.  The meetings took place in the context of the Government’s request to the Office of the Prosecutor to defer its investigation into the Situation in the Islamic Republic of Afghanistan.  The parties discussed the investigative steps taken (or planned) by Afghan national authorities, as well as clarifications on certain points of discussion.  The Prosecutor’s decision on the request is pending.  [May 9, 2021]