Author Archives: IJRC

UN Human Rights Bodies May Curtail Work Amid Funding Shortage

Jens Modvig, Chair of the Committee against Torture
Credit: UN Photo/Eskinder Debebe

Governments’ failure to fully fund the United Nations now threatens the work of the UN human rights treaty bodies that review States’ compliance with their human rights obligations, making it likely that six of the 10 bodies will have to skip the sessions they have planned for later this year. [OHCHR Press Release; IPS] The chairs of the human rights treaty bodies have responded to the UN High Commissioner for Human Rights’ notice of the funding shortfall with their own letter, also addressed to the UN Secretary General, highlighting the urgency of the situation and urging UN leaders and Member States to avert the impending crisis. [OHCHR Press Release] Experts warn that without the necessary funds, protections for global human rights will be dangerously reduced. [IPS] These cuts come at an especially sensitive time for the protection of human rights, as observers note the rise in right-wing and authoritarian governments, shrinking space for civil society, and a backlash on women’s rights. [IPS] While the OHCHR did not identify the specific reasons for the funding shortfall, the UN has recently warned of a funding shortage caused by the Member States’ chronic failure to make their assessed dues on time and in full, causing the UN to use up its reserves at a time when its largest contributor, the United States, is reducing its contributions. [UN News; IPI Global Observatory; IJRC]

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ILO Advances Socio-Economic Integration Plan for Venezuelan Migrants and Refugees

Crossing the river from Venezuela to Colombia 
Credit: Policía Nacional de los colombianos via Wikimedia Commons

On May 7, 2019, the International Labour Organization (ILO) announced the launch of a new plan including a series of urgent interventions aimed at addressing the security, economic, and social integration needs of Venezuelan refugees and migrants in Argentina, Brazil, Chile, Colombia, Ecuador, and Peru. See ILO, Appeal: Venezuelan refugees and migrants in Latin America and the Caribbean. Under this proposed plan – developed together with the International Organization for Migration (IOM), Food and Agriculture Organization of the United Nations (FAO), and the Organization of American States (OAS) – the ILO has committed $2 million USD of its voluntary funds to support projects in the three countries that have received the majority of displaced people from Venezuela: Ecuador, Colombia, and Peru. [ILO Press Release] The ILO intervention is part of a broader appeal within the framework of the Regional Refugee and Migrant Response Plan (RMRP), a multilateral plan to coordinate a regional response to the unprecedented and growing “largest displacement of population in the modern history of Latin America and the Caribbean.” [ILO Press Release] Venezuela’s years-long economic and political crisis, which worsened in recent months following reactions by national and foreign authorities to Juan Guaidó’s attempt to claim the presidency from Nicolás Maduro, has resulted in an estimated 3.7 million people leaving the country and about seven million people in Venezuela in need humanitarian assistance. [UN News: Humanitarian Crisis]

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ICC Reverses Jordan Non-Cooperation Referral for Failure to Arrest Al-Bashir

Al-Bashir case: ICC Appeals Chamber hearing submissions on legal matters raised by Jordan
Credit: ICC via Flickr

On May 6, 2019, the International Criminal Court (ICC) reversed an earlier decision seeking intergovernmental follow-up on Jordan’s failure, in March 2017, to arrest then-Sudanese President Omar Al-Bashir, whom the ICC seeks to prosecute for alleged crimes against humanity, war crimes, and genocide in Darfur. In a split decision, the Appeals Chamber confirmed that Jordan had violated its international obligations when it failed to arrest Al-Bashir, but concluded that the Pre-Trial Chamber II had improperly exercised its discretion in referring Jordan for non-cooperation because it had not treated South Africa in the same way and because Jordan had sought to consult the Court on whether arresting Al-Bashir would conflict with its other international obligations, specifically regarding respect for Head of State immunity. See ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-397, Judgment in the Jordan Referral Re Al Bashir Appeal, 6 May 2019, para. 2. Two judges dissented on that final point, arguing that the referral was proper. See ICC, Joint Dissenting Opinion of Judge Liz del Carmen Ibanez Carranza and Judge Solomy Balungi Bossa, ICC-02/05-01/09-397-Anx2, 6 May 2019.

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May 2019: UN Treaty Bodies And Regional Bodies In Session

Palais des Nations
Credit: Jean-Marc Ferré via Flickr

In May, several universal and regional human rights bodies and experts will review States’ compliance with their human rights obligations through the consideration of State and civil society reports, country visits, and the review of individual complaints. Three United Nations treaty bodies will hold sessions to assess States’ progress regarding the elimination of racial discrimination, the prevention of torture, and the rights of children. The Human Rights Council Working Group on the Universal Periodic Review will consider the overall human rights situations in 14 countries. Seven UN special rapporteurs, two independent experts, and one working group will conduct country visits in May. Additionally, four UN working groups will hold sessions in Geneva. Of the regional bodies, the African Commission on Human and Peoples’ Rights (ACHPR), the Inter-American Commission on Human Rights (IACHR), the Inter-American Court of Human Rights (IACtHR), and the European Committee on Social Rights (ECSR) will all be in session. The European Court of Human Rights (ECtHR) will hold a Grand Chamber hearing.

The UN treaty body sessions may be watched via UN Web TV. The public hearings of the AfCHPR, IACtHR, IACHR, and ECtHR may be viewed via the AfCHPR’s YouTube page, the IACtHR’s Vimeo page, the IACHR’s YouTube page, and the ECtHR’s website, respectively. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar.

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ICC Decides Not to Investigate War Crimes in Afghanistan Conflict

International Criminal Court 
Credit: ICC via Flickr

On April 12, 2019, the three judges of the Pre-Trial Chamber II of the International Criminal Court (ICC) unanimously declined to authorize the Prosecutor’s request to conduct an investigation into the situation in Afghanistan. [ICC Press Release] The investigation was set to examine alleged war crimes and crimes against humanity related to the conflict in Afghanistan, and to examine the responsibility of the Taliban and other armed groups, and of Afghan and United States armed forces. See ICC, Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, 12 April 2019, paras. 15, 18-24. Despite the Pre-Trial Chamber’s determination that the Prosecutor’s request was credible and met the jurisdictional and admissibility requirements, the Pre-Trial Chamber rejected her request to proceed because it determined the investigation would not serve the “interests of justice” given the limited prospects of a successful investigation that would lead to prosecutions. See id. at paras. 87, 96. Many observers have described the Court as caving to political pressure from the U.S., while others view the decision as a pragmatic use of the Court’s resources. [Amnesty International; Just Security] The Pre-Trial Chamber’s decision came shortly after the U.S. revoked the ICC Prosecutor’s visa to the U.S. and threatened to sanction the Court should it pursue cases against American citizens. [IJRC] The Office of the Prosecutor indicated it “will further analyse the decision and its implications, and consider all available legal remedies” in response. [ICC Statement]

Procedural Background

A preliminary examination on Afghanistan initially opened in 2006. See Situation in the Islamic Republic of Afghanistan, 12 April 2019, at para. 44. However, the Prosecutor has faced a many obstacles since then, primarily as a result of the lack of cooperation from the authorities under investigation—a reason cited by the Pre-Trial Chamber for rejecting this investigation. See id.

In November 2017, the Prosecutor submitted a request for authorization to initiate an investigation proprio motu pursuant to Article 15 of the Rome Statute. See Situation in the Islamic Republic of Afghanistan, 12 April 2019, at paras. 2, 5, 29. The Prosecutor’s requested authorization to investigate the alleged crimes under the ICC’s jurisdiction that have taken place in Afghanistan since May 1, 2003 (the date that the Rome Statute entered into force in Afghanistan), and alleged crimes that “have a nexus to the armed conflict” but have been committed outside of Afghanistan, in the territory other States parties to the Rome Statute, since July 1, 2002. See id. at para 5.

The Prosecutor provided evidence indicating that since June 19, 2002, the country has been in a state of non-international armed conflict between various armed groups against both the Afghan government and international armed forces supporting the government. See id. at para. 16. Since that time, the evidence shows that in the context of the thousands of civilian deaths that have taken place, many are likely to constitute crimes against humanity and war crimes. See id. at para. 15. The request classifies the crimes into three categories according to the alleged perpetrators: (1) the Taliban and other non-state armed groups, (2) the Afghan armed forces, and (3) U.S. armed forces and the U.S. Central Intelligence Agency (CIA). See id. at paras. 17, 18-24. A fourth category was included addressing “other acts by members of international armed forces,” which held out the possibility of uncovering crimes resulting from military operations or torture committed by international armed forces other those falling within the other three categories, but indicated that more information is required to determine whether these events constitute crimes under the Court’s jurisdiction. See id. at para. 25.

A significant number of victims submitted representations to the Pre-Trial Chamber complimenting the information provided by the Prosecutor. See id. at para. 28. In total, the Pre-Trial Chamber received 794 representations on behalf of 6,220 individuals, 1,690 families, 26 villages, one institution, and millions of victims. See id. at para. 27.

The Pre-Trial Chamber’s Analysis

In deciding whether or not to authorize the Prosecutor’s request proprio motu, the Pre-Trial Chamber must make a determination as to whether there is a “reasonable basis” to initiate an investigation and whether the jurisdictional requirements are met before authorizing the investigation. See id. at para. 29. This scenario is distinct from situations in which a State or the United Nations Security Council refers a situation in that the Pre-Trial Chamber exercises heightened discretion, ensuring that all requirements set out in Article 53(1) of the Statute are met. See id. para. 30. In addition to determining whether a “reasonable basis” exists, the Pre-Trial Chamber will consider whether an investigation would “serve the interests of justice,” which requires a consideration of the gravity of the crimes alleged, the interests of the victims, and the feasibility of the investigation under the circumstances. See id. at paras. 33-35.

Jurisdiction & Admissibility

Before addressing these issues, the Pre-Trial Chamber determined whether the crimes alleged fall within the jurisdiction of the Court and whether the request met the admissibility requirements laid out in the Rome Statute. The Pre-Trial Chamber acknowledged that nearly all of the information the Prosecutor provided was based on credible sources and was well-corroborated, stating that “there is reasonable basis to believe that the incidents underlying the Request have occurred.” See id. at paras. 46, 48. It further found that the jurisdictional requirements of ratione loci (the crimes alleged occurred in the territory of a State that is party to the Rome Statute or has accepted the Court’s jurisdiction), ratione materiae (the crimes alleged constitute crimes within the Court’s jurisdiction), and ratione temporis (the crimes alleged occurred after the Rome Statute came into force in the State) had all been met. See id. at paras. 45, 49, 60, 87. With respect to admissibility, the Pre-Trial Chamber was satisfied that the two-fold assessment required under Article 17 of the Rome Statute had also been met: whether the States involved are not or have not conducted their own judicial proceedings on these issues (complementarity), and whether the crimes alleged meet the Court’s severity threshold (gravity). See id. at paras. 71, 75, 77, 79, 86.

Interest of Justice

The final area of assessment the Pre-Trial Chamber undertook was to determine whether under Article 53(1)(c) there are “substantial reasons to believe that an investigation would not serve the interests of justice.” See id. at para. 87. The Pre-Trial Chamber noted that without the existence of a clear definition or other statutory guidance on this matter, it would make the consideration based on the “overarching objectives” of the Rome Statute—that the investigation would aid in “the effective prosecution of the most serious international crimes, the fight against impunity and the prevention of mass atrocities.” See id. at para. 89. It then stated that an investigation could only be considered to serve the interests of justice if it appears likely to result in a legitimate investigation and prosecution of cases within a suitable time frame. See id.

Here the Pre-Trial Chamber stated that three issues were of particular importance to this assessment in the Afghanistan investigation. See id. at para. 91. First, the Pre-Trial Chamber concluded that the amount of time that had passed between when most of the crimes were committed and the submission of the request would make it unlikely that viable evidence would be available. See id. at para. 93. Second, the Pre-Trial Chamber determined that changing political situations in the relevant States, including in States not parties to the Statute, make the prospect of cooperation from the governments involved and the surrender of suspects substantially unlikely. See id. at para. 94. Finally, the Pre-Trial Chamber noted that given the realities of the situation, the investigation would be costly and that this would detract from resources that could be allocated to investigations more likely to result in prosecutions. See id. at para. 95.

Thus, the Pre-Trial Chamber concluded that the potential for a successful investigation was significantly limited and that there was little chance that the objectives of the victims would be furthered by continuing. See id. at para. 96. It also indicated that pursuing an investigation that did not fulfill these aims and would possibly incite “hostility vis-a-vis the Court” and undermine its overall credibility. See id. It ultimately decided the investigation into the situation in Afghanistan would not serve the interests of justice and for that reason, declined the request. See id.

International Reaction

The Pre-Trial Chamber’s rejection of the investigation has been particularly controversial given the implication of U.S. forces in the crimes outlined. The Prosecutor’s information, based primarily on the findings of the U.S. Senate Select Committee on Intelligence, the U.S. Senate Armed Services Committee and the U.S. Department of defense, provided evidence that U.S. forces and the CIA had committed war crimes including torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence “pursuant to a policy approved by the US authorities.” See id. 24.

Human rights experts and legal scholars have denounced the decision to stop the investigation. Human Rights Watch’s Param-Preet Singh said in a statement that the “ICC judges’ decision to reject an investigation in Afghanistan is a devastating blow for victims,” and that “[i]t sends a dangerous message to perpetrators that they can put themselves beyond the reach of the law just by being uncooperative.” [NPR] Biraj Patnaik, of Amnesty International stated that “the decision ultimately will be seen as a craven capitulation to Washington’s bullying and threats,” further weakening the Court’s credibility. [Amnesty International] Legal scholars have expressed their skepticism regarding the Court’s reasoning with respect to “the interest of justice” determination. [Opinio Juris]

Additional Information

The ICC was established by the Rome Statute, and officially opened in 2002. See ICC, About. The Court has the competence to hear four types of crimes, genocide, crimes against humanity, war crimes, and the crime of aggression. See Id. The ICC has had a total of 28 cases, of which the Court issued final convictions in six cases (eight trial convictions, two of which were overturned on appeal). See id. For more information on the International Criminal Court, visit IJRC’s Online Resource Hub. To learn more about the States’ human rights obligations, see IJRC’s Afghanistan Factsheet and United States Factsheet. To stay up-to-date on international human rights law news, visit IJRC’s News Room and subscribe to the IJRC Daily.

U.S. Resists International Oversight, Reduces IACHR Funding over Reproductive Rights

Secretary Pompeo Delivers Remarks on the Release of the 2018 Country Reports on Human Rights Practices

In another effort to both curtail international human rights oversight and advance a regressive view of reproductive rights, the United States Department of State indicated in late March 2019 that it would reduce its financial support for the region’s human rights bodies, which have urged States to repeal laws that criminalize abortion without any exceptions. [Washington Post; PAI] U.S. Secretary of State Michael Pompeo announced that the U.S. would reduce its regular contribution to the Organization of American States (OAS), a regional intergovernmental organization with 35 Member States, in an effort to target the Inter-American Commission on Human Rights (IACHR) and the Inter-American Commission of Women (CIM). See U.S. Department of State, Remarks to the Press (Michael R. Pompeo, 26 March 2019); Letter from Lankford et al., U.S. Senators, to Michael Pompeo, U.S. Secretary of State, United States Senate (Dec. 21, 2018).

The announcement follows other recent efforts by the U.S. to undermine international human rights protections or oversight, including revoking the International Criminal Court prosecutor’s visa to enter the U.S., and efforts to weaken the recommendations on women’s reproductive health and rights during the 63rd Session of the Commission on the Status of Women. [Reuters: Prosecutor; The Guardian] Read more

Commission of Inquiry: Israeli Response to Gaza Demonstrations Violated Rights

2018 Gaza border protests, Bureij
Credit: מינוזיג – MinoZig via Wikimedia Commons

In a new 252-page report, the United Nations Commission of Inquiry on the protests in the Occupied Palestinian Territory (CoIOPT or Commission), established by the UN Human Rights Council, presents detailed findings related to its investigation of the demonstrations that took place in Gaza between March 30 and December 31, 2018, the Israeli security forces’ response, and the impact on civilians living in Gaza and Israel. See Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territory, 18 March 2019, UN Doc. No. A/HRC/40/CRP.2, para. 1. The CoIOPT finds Israel, Hamas (as Gaza’s de facto authority), and the Palestinian Authority, responsible for human rights violations committed in the context of these protests; notes that the Israeli security forces’ response to the demonstrations gave rise to humanitarian law violations, some of which may amount to crimes against humanity; and highlights the urgent need to revise the Israeli security forces’ rules of engagement. See id. at paras. 980-81, 985. The CoIOPT presents the report with a view to ensuring accountability, proposing concrete recommendations, and identifying State and non-State actors responsible for violations of international human rights and humanitarian law, and international criminal law — the applicable international legal framework to this situation. See id. at paras. 12-13, 37.

While the Commission faced significant limitations with respect to its ability to witness information first-hand, it relied on interviews, meetings with victims, civil society, government officials, and witnesses; it also collected thousands of documents, including medical reports, expert legal opinions, drone footage, and written submissions, among others, to support its findings. See id. at paras. 19-21, 30-36. The Israeli government has since issued a statement rejecting the report’s findings and accusing the Commission of bias against Israel. See Israel Ministry of Foreign Affairs, Israel’s response to UNHRC Commission of Inquiry report, 21 March 2019. Read more

April 2019: UN Treaty Bodies & Regional Body in Session

European Court Of Human Rights
Credit: Anil Öztas via Wikimedia Commons

In April, several universal and regional human rights bodies and experts will review States’ compliance with their human rights obligations through the consideration of State and civil society reports, country visits, and the review of individual complaints. Five United Nations treaty bodies and one pre-sessional working group will hold sessions to assess States’ progress regarding the rights of persons with disabilities, migrant workers’ rights, enforced disappearances, the elimination of racial discrimination, and the prevention of torture. Seven UN special rapporteurs, two working groups, and one independent expert will conduct country visits in April. Additionally, three working groups will hold sessions in Geneva. Of the regional bodies, the European Court of Human Rights (ECtHR) will hold a Grand Chamber hearing.

The UN treaty body sessions may be watched via UN Web TV. The public hearings of the ECtHR can be viewed on the Court’s website. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar. Read more

New IACHR Report Addresses Police Violence Against Black Americans

EEUU: Uso de fuerza por policía contra afrodescendientes
Credit: IACHR via Flickr

In a new report documenting the forms of police violence against people of African descent in the United States, the Inter-American Commission on Human Rights (IACHR) examines the widespread racial disparities in the American criminal justice system, in light of the State’s international human rights obligations. See IACHR, Police Violence against Afro-descendants in the United States (2018). The report from the region’s principal human rights oversight body examines the factual situation and recommends specific reforms. [IACHR Press Release] Its conclusions are perhaps most succinctly expressed in a note on the cover art, which reads, “the United States has systematically failed to adopt preventive measures and to train its police forces to perform their duties in an appropriate fashion. This has led to the frequent use of force based on racial bias and prejudice and tends to result in unjustified killings of African Americans.” See IACHR, Police Violence against Afro-descendants in the United States.

The report goes beyond current-day excessive use of force to examine the history of racial discrimination in America, modern structural discrimination, over-policing of African American communities, a lack of accountability for excessive use of force, and various racial disparities in the larger criminal justice system. Among its recommendations, the IACHR calls on the U.S. to provide restitution “to remedy the situation of historic, structural discrimination against African Americans,” accountability for killings by police, public apologies and official declarations to restore the dignity and rights of the victims, and human rights training for law enforcement. See id. at paras. 295, 300, 301.

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