January 2022

Monthly News Updates: International Criminal Court – January 2022

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

In January, the ICC held a special session to open the 2022 judicial year.  The session reflected on the last 20 years of the Court’s work and discussed its work for the coming year.

INTERNATIONAL CRIMINAL COURT

ICC opens the 2022 judicial year

On January 20, 2022 the ICC opened its 2022 judicial year with a special session.  In his opening speech Judge Piotr Hofmański said the session was to briefly commemorate what the Court has done, but most importantly to focus on what the Court will do in the new year.  Due to COVID-19 restrictions, most judges attended virtually, and the event was live streamed and recorded. [January, 20, 2022]

ICC Prosecutor addresses UN Security Council on the Situation in Darfur

Pursuant to UN Security Council Resolution 1593 (2005), ICC Prosecutor Karim A.A. Khan addressed the UN Security Council on the Situation in Darfur.  Prosecutor Khan discussed the progress the ICC has made.  This includes confirming 31 charges against Mr. Abd-Al-Rahman (also known as Ali Kushayb) and setting the trial to start April 2022.  The ICC is conducting outreach to ensure the Sudanese population can follow the trial.  The Office of the Prosecutor is also strengthening the cases against Mr. Al Bashir and Mr. Hussein, but it requires stronger cooperation from Sudan, the UN Security Council, and UN member states.  Prosecutor Khan ended by emphasizing the ICC’s “unwavering commitment” to honor the UN Security Council’s Resolution. [January 17, 2022]

The ICC’s venture in the Americas: Situation in the Bolivarian Republic of Venezuela

By: Ana Luz Manzano Ortiz, Junior Research Associate, PILPG-NL

Over the years, the Americas has been a highly supportive region for the work of the International Criminal Court (ICC).  However, it was only this year that the Court paid its first visit to the region, with Prosecutor Mr. Karim Khan’s trip to Colombia and Venezuela on October 25, 2021.  During this visit, the Prosecutor announced an important decision for the future of international criminal justice in the region: the beginning of a formal investigation into the acts committed by President Nicolas Maduro’s Government in Venezuela.  This impactful decision raises a question: which are the crimes against humanity (CAH) that the ICC is paying attention to in the Venezuela, and why? 

Dictatorships and massacres in the Americas have resulted in an extensive history of human rights violations.  Human rights activists have been systematically persecuted for demanding justice, truth, and reconciliation.  Consequently, civil society organizations continuously call for the intervention of the ICC through their representatives at the Organization of American States (OAS).  However, the principle of non-intervention, the right of every sovereign state to conduct its affairs without outside interference, is strong in Latin American diplomacy, so Member States of the OAS are generally reluctant to make accusations against  each other.

Nevertheless, in 2017, the interest from the OAS’s Secretary General, Luis Almagro, into the Venezuelan political situation has opened the door for a group of Member States of the OAS to bring the first case of CAH in the Americas to the ICC.  Almagro appointed a Panel of Independent International Experts in September 2017 to analyze whether the presidency of Nicolás Maduro is responsible for the commission of CAH in Venezuela, and whether the situation should be referred to the ICC.  Since Venezuela withdrew from the OAS, Almagro has been advocating to sanction Maduro under the Inter-American Democratic Charter for the humanitarian crisis. 

In line with the findings of the Panel, on September 26, 2018, Argentina, Canada, Colombia, Chile, Paraguay, and Peru referred the case to the ICC under article 14 of the Rome Statute.  According to Fatou Bensouda, who was then the Prosecutor, this was the first time a group of states had jointly referred a case under this provision. 

According to observations by the ICC Office of the Prosecutor on the case, there have been found reasonable grounds to believe that civilian authorities, members of the armed forces, and pro-government individuals may be responsible for CAH, including imprisonment or other severe deprivation of physical liberty, torture, rape and/or other forms of sexual violence of comparable gravity, and persecution on political grounds. 

During his visit to the Americas, Mr. Khan met with Venezuela’s President, and they signed a Memorandum of Understanding.  The document declares that a formal investigation has been opened and that Venezuela, although disagreeing with the ongoing investigation, will cooperate with the Office of the Prosecutor (OTP) to establish the administration of justice. 

Whether this agreement holds any good prospects of contributing to justice in Venezuela is yet to be seen.  The President has other interests in cooperating with the ICC, such as an investigation that he has referred to the ICC claiming the United States of America (USA) has committed CAH through the economic sanctions against his country.  So, there is a risk that Maduro’s cooperation with the ICC might end if the ICC does not proceed against the USA.

Additionally, Khan declared during the 20th session of the Assembly of States Parties to the ICC that the decision to work with Maduro is an example of his emphasis on supporting states' efforts to hold the perpetrators accountable for atrocities committed on their territories, given the ICC’s limited funding for this year.  The Prosecutor is investing in the principle of complementary — the idea that domestic courts should be the first responsible for dealing with violations of international criminal law — as mentioned in the memorandum with Venezuela.  Providing states with technical assistance to investigate CAH in their territories will be the main strategy for international criminal justice for the Court.

As of now, the reaction to the decision of investigating these alleged CAH in Venezuela has been positive: victims’ representatives have applauded the decision of the ICC to intervene, as it has raised their hopes in their long journey for justice. Nonetheless, and regardless of why these are the first CAH being formally investigated by the ICC in the region, other questions remain for the rest of the Americas. In particular, it remains to be seen whether other petitions for the ICC’s intervention in the Americas will be heard.

Witness Testimonies, a Worthwhile Exercise of Investigative Mechanisms?

By: Lilian Srour, Junior Research Associate, PILPG-NL 

The role of fact-finding missions, commissions of inquiry, and other investigative mechanisms in criminal proceedings is becoming increasingly relevant.  For example, the Investigative Team to Promote Accountability for Crimes Committed by Da'esh/ISIL (UNITAD) and the International, Impartial and Independent Mechanism for Syria (IIIM) have explicit mandates to collect information and evidence for the purposes of potential accountability efforts.  Namely, criminal proceedings at the national, regional, and international levels.  Even though these investigative mechanisms are not prosecution offices or courts, their mandates have extended in scope.  This has resulted in an observable trend whereby these mechanisms are increasingly being called upon to determine whether crimes have taken place, visible through explicit mandates allowing for the examination of individual suspects.

Given that UNITAD and the IIIM continue to fulfil their respective mandates, this short piece reflects on the ability of states, like Germany, to use evidence provided by investigative mechanisms in criminal proceedings, in comparison with the International Criminal Court (ICC).  This piece considers Germany as it is the site of a recent landmark decision to convict a former IS member, Taha Al J., of genocide against the Yazidi religious minority.  Constrastingly, the ICC will be discussed, because the reliance on third-party findings, for instance, from investigative mechanisms, has often come under scrutiny at the ICC.  Focus will lie with witness testimonies because they represent both, the strongest and the weakest link in criminal proceedings.  Witness testimonies are simultaneously significant due to their utility in criminal proceedings and delicate due to the ability to tamper with witnesses, often coupled with their vulnerability.  

National successes

The evidentiary standards in Germany provide that, to open an investigation, sufficient factual indications for a crime are enough and do not require a specific type of evidence.  Furthermore, the competent investigating authority may consider all admissible evidence and designate its weight at its own discretion.  At the investigation stage, the prosecution may consider all forms of evidence so long as these are in line with the legal requirements and limitations.  At trial, the Court may rely on evidence provided by law, which are witnesses, experts, written materials, and visual inspections.  Here, judges are free to assess the probative value of evidence.  Generally, judges balance the importance of the case and the evidence against the gravity of the charge to determine the admissibility of evidence. 

In light of Germany’s long-standing support of UNITAD, its successful conviction of Taha Al J., and the fact that it is the site of several universal jurisdiction (UJ) trials, cooperation with these investigative mechanisms is highly significant for Germany.  Among other difficulties that accompany national prosecutions on the basis of UJ, the finding and accessing of relevant and credible evidence is a challenge.  In this regard, this landmark conviction has widely been regarded as a a positive development of international law in general, signaling that impunity for these international crimes, particularly genocide and crimes against humanity, will not stand. 

Germany’s permissive evidentiary standards and its willingness to prosecute international crimes stand to make the cooperation with and reliance on evidence, including witness testimonies, from investigative mechanisms a feasible practice.

International difficulties

At the international level, one can find the ICC’s rules on admissibility of evidence under the Rules of Procedure and Evidence.  Recently, there have been calls for the Court to clarify its approach to admissibility of evidence.  Seeing that investigative mechanisms are increasingly being created to respond to international crimes and violations of humanitarian and human rights law, arguably, the provision of reliable evidence, particularly witness testimonies, stands to complement international criminal proceedings.

Thus far, witness testimonies have represented a prevalent type of evidence in many cases of grave international crimes.  However, due to the undefined approach of the ICC in the admission of evidence, and practices aimed at interfering with witness testimonies, over time, the use of witness testimonies has encountered several challenges affecting due process, among others.  Furthermore, jurisprudence reveals that reliance on the findings of investigative mechanisms, including witness testimony, has been highly scrutinized, visible in Lubanga, Gbagbo, and more recently in the Bangladesh/Myanmar investigation. 

The difficulties associated with witness testimonies in general, coupled with criticisms relating to the reliance on evidence from such investigative mechanisms, stand to make the future use of such evidence by the ICC a difficult practice.  Nevertheless, over the years the limitations in relation to evidence collected by investigative mechanisms have become more widely addressed, for instance, in terms of methodology followed in evidence collection.  Considering that these new investigative mechanisms have the mandate to collect evidence, specifically, for the purpose of criminal proceedings, arguably, they stand to play a beneficial role.  That is through the provision of reliable evidence, such as witness testimonies, that is admissible under the Rome Statute. 

The way forward

Investigative mechanisms, like the IIIM and UNITAD, continue to collect evidence to this day with the hopes of using this to pursue criminal accountability.  These mechanisms represent a welcome innovation due to their ability to complement national and international proceedings by providing useful evidence and knowledge on relevant facts and circumstances about the crimes committed, for instance, in Syria.  This applies to all investigative mechanisms mandated to collect evidence on international crimes.  They represent an opportunity to effectively harmonize evidentiary standards and allocate resources to ensure that the evidence collected is usable in court and to avoid a duplication of efforts in the future.  This is even more relevant considering that the ICC has been encouraged to devise a more comprehensive approach to the admissibility of evidence. 

In relation to witness testimonies, investigative mechanisms stand to play a significant role due to the ability to decrease the time between the commission of crimes and the beginning of investigations and proceedings.  This contributes to the accuracy and credibility of evidence collected.  Having seen successes at the national level in UJ cases, these investigative mechanisms stand to play a significant role.  At the international level, a comprehensive approach to the admissibility of evidence could guide investigative mechanisms in their collection of evidence, allowing for an effective use of resources.  

December 2021

Monthly News Updates: International Criminal Court – December 2021

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

In December, the 20th Session of the Assembly of States Parties took place in The Hague and elected two new Deputy Prosecutors.  The ICC opened several public consultation opportunities, and support for the Trust Fund for Victims grew.

INTERNATIONAL CRIMINAL COURT

Office of the Prosecutor begins public consultations on policy initiative to advance accountability for gender prosecution under the Rome Statute

The Office of the Prosecutor is working on a new policy initiative focused on advancing accountability for the crime against humanity of persecution on the grounds of gender under the Rome Statute.  This initiative is building on the Policy Paper on Sexual and Gender-Based Crimes released in June 2014 by the Office of the Prosecutor.  Currently, the initiative is in its early stages of deciding the substance, nature, and scope of the policy.  Comments can be sent to OTP.Policies@icc-cpi.int until March 18, 2022 by midnight Central European Time. [December, 20, 2021]

20th Session of the Assembly of States Parties elects two new Deputy Prosecutors

The 20th Session of the Assembly of States Parties elected Nazhat Shameen Khan of Fiji and Mame Mandiaye Niang of Senegal as the new ICC Deputy Prosecutors.  They will commence their term after current Deputy Prosecutor James Kirkpatrick Stewart completes his term on March 8, 2022.  This is the first deputy prosecutor election to use a due diligence process when selecting candidates. [December 10, 2021]

ICC President shares statement for Human Rights Day 2021

For Human Rights Day 2021, ICC President Judge Piotr Hofmański shared his thoughts on the everlasting importance of human rights.  He expressed that “[t]here can be no justice without respect for human rights - and, conversely, justice is essential to the protection of human rights.”  He also emphasized the ICC’s role in securing accountability for human rights violations, and the need for states to cooperate with the ICC. [December 10, 2021]

ICC begins consultations on Draft Strategy on Gender Equality and Workplace Culture   

The ICC released the Zero Draft Strategy on Gender Equality and Workplace Culture in response to gender equality and workplace culture challenges at the ICC.  The ICC has started consulting on the zero draft to further develop the Court-wide strategy.  The zero draft was circulated internally at the ICC and is being shared externally to all other interested stakeholders.  Comments can be sent to ICC.GenderEqualityFP@icc-cpi.int until March 9, 2022. [December 9, 2021]

Mr. Yoshimitsu Yamauchi appointed as Special Advisor on Mutual Assistance 

ICC Prosecutor Karim A.A. Khan appointed Mr. Yoshimitsu Yamauchi as Special Advisor on Mutual Legal Assistance.  Mr. Yamauchi is a Public Prosecutor in Japan who oversees all districts’ staff prosecutors on cases regarding organized crime and international criminal cases.  Mr. Yamauchi’s appointment aligns with Prosecutor Khan’s past appointments, which include experts from different cultural and linguistic backgrounds to help strengthen the Court's ability to discharge its mandate. [December 8, 2021]

20th Session of the Assembly of States Parties held December 6 to December 11

The 20th Session of the Assembly of States Parties (ASP) to the Rome Statute of the International Criminal Court was held in the Hague, The Netherlands between December 6 to December 11.  Meetings were held in-person and online due to COVID-19 restrictions.  PILPG closely followed the ASP and reported on the many side events held during the week.  All PILPG’s reports are available on the Lawyering Justice blog. [December 6-11, 2021]

ICC held first Asia-Pacific Regional Seminar of Judges on the Rome Statute and the International Criminal Court

The ICC and the Supreme Court of the Republic of Korea hosted its first Asia-Pacific Regional Seminar of Judges on the Rome Statute and the International Criminal Court.  The seminars included ICC judges as well as judicial officials from state parties and non-states parties to the Rome Statute.  The goal of the event was to increase cooperation, promote ratification of the Rome Statute, and increase dialogue among judges. [December 1, 2021]

AFRICA

Central African Republic | Pre-Trial Chamber II commits Mr. Said to trial

Pre-Trial Chamber II confirmed some charges against Mahamat Said Abdel Kani.  The Chamber confirmed the charges of Mr. Said being criminally responsible for crimes against humanity and war crimes between April 12, 2013 and August 30, 2013.  According to the Chamber, evidence shows that he was a Seleka coalition senior member.  However, the Chamber rejected the charges for crimes that occurred between mid-September 2013 and November 8, 2013.  For the charges confirmed, Mr. Said will face trial before an ICC Trial Chamber. [December 9, 2021]

EUROPE 

Germany | Germany contributes 110,000 euros to the Trust Fund for Victims

As a voluntary contribution for 2021, Germany pledged 110,000 euros to the Trust Fund for Victims.  The contribution is reserved specifically for the Trust Funds for Victims’ reparations mandate.  When making the pledge, Germany emphasized the importance of the work of the Trust Fund for Victims. [December 17, 2021]

Luxembourg | Luxembourg contributes 35,000 euros to the Trust Fund for Victims

In 2021, Luxembourg contributed 35,000 euros to the Trust Fund of Victims.  When making the contribution, Luxembourg emphasized the importance of victims receiving reparations in addition to having the right to an effective remedy.  Since 2005, Luxembourg regularly contributes to the Trust Fund for Victims. [December 17, 2021]

Iceland | Iceland makes its first contribution of 10,000 euros to the Trust Fund for Victims

In 2021, Iceland made its first voluntary contribution of 10,000 euros to the Trust Fund for Victims, and plans to continue contributing for the next three years.  The Director of the Trust Fund for Victims, Pieter de Baan, thanked Iceland and hopes this sends a message to other countries to make contributions. [December 13, 2021]

December 2021

Monthly News Updates: Domestic Prosecution of International Crimes – December 2021

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

During the final month of 2021, new arrests and trials occurred in several domestic jurisdictions in relation to war crimes and other international crimes.  This post provides an overview of the key developments in December.

EUROPE 

Bosnia and Herzegovina | Prosecutor files indictment against two individuals for war crimes in Gorazde area in 1992

The Bosnia-Herzegovinian state prosecution indicted two former members of the Bosnian Serb Army, Branislav Lasica, and Miroslav Milovic, for war crimes, incitement of genocide, and crimes against humanity.  The underlying acts occurred in 1992. [December 30, 2021]

Bosnia and Herzegovina | Bosnian war crimes prosecutor indicts nine individuals for the murder of 100 Muslim Bosniaks during the 1992-1995 war

The Bosnian war crimes prosecutor announced the indictment of nine unnamed individuals for the killing of approximately 100 Bosniak civilians in the Nevesinje area during the summer of 1992.  Among the victims were women, children, and elderly people belonging to seven different families.  The authorities recovered the remains of 49 individuals, while 47 remain unaccounted for. [December 29, 2021] 

France | French police detains individual suspected of supplying components to manufacture chemical weapons to Syria

The French police detained a French-Syrian national under suspicion of conspiracy and accessory to crimes against humanity and war crimes in Syria.  The alleged crimes occurred between March 2011 and January 2018. [December 27, 2021] 

Bosnia and Herzegovina | Prosecution re-files indictment against Milenko Stanic for crimes against humanity in Vlasenica area 1992-1993 

The state prosecution re-filed the indictment against Milenko Stanic following the state court’s rejection of the first indictment in November 2021.  Stanic allegedly committed crimes against humanity, including rape, torture, and murder, in the Vlasenica area between April 1992 and March 1993 as part of a joint criminal enterprise. [December 27, 2021] 

Bosnia and Herzegovina | Trial of former Bosnian Serb policeman opens for killings in Bosanska Krupa area in 1992 

The Bosnian state court commenced the trial of Dusan Culibrk, a former policeman.  He allegedly took part in killing approximately 50 Bosniak and Croat civilians in the Bosanska Krupa municipality in 1992. [December 22, 2021] 

Bosnia and Herzegovina | Constitutional Court rejects appeal by former Serb fighter against his conviction

The Constitutional Court of Bosnia and Herzegovina rejected Radomir Šušnjar’s appeal against his conviction and sentence to 20 years’ imprisonment.  Šušnjar is a 66 year-old former Serb fighter who, together with two other individuals, detained and later killed 26 unarmed Bosniak civilians during the Pionirska Street incident in Visegrad on June 14, 1992. [December 20, 2021] 

Bosnia and Herzegovina | Bosnian State Court confirms charges against former police chief

The Bosnia-Herzegovinian state court affirmed the indictment against former police chief Nedjeljko Popovic, for crimes committed by his subordinates against Bosniak and Croat civilians during the war in 1992.  The alleged acts took place in Mrkonjic Grad and included unlawful detention, torture, and murder. [December 20, 2021] 

Bosnia and Herzegovina | Police arrests eight individuals suspected of war crimes during the 1992-1995 conflict

The Bosnian police arrested eight former members of the Bosnian Serb Army based on war crimes allegations.  The unnamed individuals allegedly participated in the killing of around 100 Bosniaks in the region of Nevesinje in 1992 and face charges of crimes against humanity and war crimes. [December 16, 2021] 

France | French Court sentences former Rwandan hotel driver to 14 years’ imprisonment for complicity in genocide

A French court found Claude Muhayiama, a French citizen of Rwandan origin, guilty of complicity in genocide and crimes against humanity committed during the 1994 Rwandan genocide.  The court sentenced Muhayiama to 14 years’ imprisonment. [December 16, 2021] 

Bosnia and Herzegovina | State Prosecutor files indictment against two individuals for crimes against humanity committed in the Visegrad area between 1992 and 1993

The State Prosecutor of Bosnia and Herzegovina charged Milomir Djuricic (“Djure”) and Vikandin Spasojevic (“Mico” or “Era”) with persecution on national, ethnic, and religious grounds as crimes against humanity.  Both individuals are former members of the Visegradska Brigade of the Bosnian Serb Army.  The alleged crimes occurred in the Visegrad area between May 1992 and September 1993. [December 9, 2021]

The Netherlands | Court rules that Israeli Defence Minister enjoys immunity

A Dutch appeals court upheld a first instance decision from January 2020 and affirmed that Benny Gantz, the Israeli Defence Minister, has functional immunity from civil proceedings in the Netherlands.  The ruling is connected to a case pertaining to an airstrike in Gaza in 2014 that killed six family members of the claimant Ismail Ziada, a Dutch national of Palestinian origin. [December 6, 2021]

Bosnia and Herzegovina | Appeals Chamber upholds sentence against former Bosnian Serb policeman for crimes against humanity

The appeals chamber of the Bosnian state court confirmed the first-instance verdict sentencing Simo Stupar to 12 years in prison for crimes against humanity.  Stupar is a former reservist policeman who took part in the illegal detention, beating, and killing of Bosniaks in Vlasenica in 1992. [December 2, 2021]

Bosnia and Herzegovina | Retrial of ‘El Mujahideen’ fighters commences

The appeals chamber of the Bosnian state court opened the retrial of Sakib Mahmuljin after overturning the first-instance verdict sentencing him to 10 years in prison.  Mahmuljin is the former commander of the Bosnian Army’s Third Corps.  The so-called El Mujahideen unit formed by Islamic volunteer fighters operated as part of the Bosnian Army’s Third Corps during the Bosnian War.  Mahmuljin allegedly failed to stop members of the El Mujahideen from torturing and killing Bosnian Serb prisoners. [December 1, 2021]

AFRICA 

Burundi | Truth and Reconciliation Commission classifies 1972 killings against Hutus as genocide

The Burundian Truth and Reconciliation Commission (TRC) declared the 1972 massacre of ethnic Hutus a genocide.  The attacks led to the death of between 100,000 and 300,000 individuals.  The Burundian government set up the TRC in 2014 and tasked it with investigating violent ethnic clashes following the country’s independence in 1962. [December 20, 2021] 

Central African Republic | First trial at Central African Republic’s Special Criminal Court commences

The Special Criminal Court in the Central African Republic announced the commencement of its first trial.  The defendants are Issa Sallet Adoum, Ousman Yaouba, and Tahir Mahamat.  The three suspects were allegedly involved in crimes against humanity and war crimes committed in Koundjili and Lemouna in May 2019. [December 17, 2021] 

Democratic Republic of the Congo | 2018 Yumbi massacre tribunal starts work

In 2015, armed men killed more than 500 people during the so-called Yumbi massacre.  In 2021, the Democratic Republic of the Congo government set up a military tribunal to investigate the causes of the massacre.  Observers have raised concerns regarding the politicization of the trial. [December 17, 2021] 

THE AMERICAS 

Colombia | Twenty-two individuals admit participation in so-called ‘false positive’ killings

The Special Jurisdiction for Peace tribunal stated that 21 former members of the Colombian military and one civilian accepted responsibility for the forced disappearance and subsequent killing of over 227 individuals between 2002 and 2008. [December 12, 2021] 

Peru | Peruvian judge initiates criminal proceedings against former President Fujimori for crimes against humanity

Peruvian judge Rafael Martínes opened investigations into former President Fujimori and three of his former health ministers, Yong Motta, Marino Costa Bauer, and Alejandro Aguinaga, based on allegations of enforced sterilization.  Potential charges could amount to crimes against humanity.  Fujimori was the president of Peru between 1990 and 2000. [December 11, 2021] 

United States of America/United Kingdom | Victims of genocide against Rohingya sue Facebook for failure to prevent incitement of violence

Victims of the genocide against the Rohingya in Myanmar filed lawsuits against Facebook for negligence in the United States and the United Kingdom.  It is alleged that the social media network’s failure to take down hate speech posts led to increased violence against the minority group.  In total, Facebook faces compensation claims of more than £150 billion. [December 6, 2021] 

ASIA

Cambodia | The Extraordinary Chambers in the Courts of Cambodia drops charges against former Khmer Rouge commander

The prosecution charged former Khmer Rouge navy commander Meas Muth with genocide against the ethnic Vietnamese minority in Cambodia, as well as torture, murder, and crimes against humanity in 2015. The Extraordinary Chambers in the Courts of Cambodia has now dropped the case based on “the absence of a definitive and enforceable indictment.”[December 17, 2021]