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.
Category Archives: crime & impunity
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]
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.
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]
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.
On October 3, 2018, the Supreme Court of Peru overturned the pardon granted to former President Alberto Fujimori and ordered him to complete his sentence for crimes against humanity committed by his administration in the 1990s. [Reuters] Pursuant to a request submitted by massacre victims’ family members, the Supreme Court found that the humanitarian pardon lacked a legal basis and contravened Peru’s human rights obligations. [Guardian; IACHR Press Release; Bloomberg: Arrest; teleSUR] Advocates and human rights experts hailed the decision as a positive step in the fight against impunity. [NYTimes] Fujimori has 14 years left to serve on his sentence, and has appealed the ruling. [NPR; Reuters] In the days following the decision, Fujimori was hospitalized; the Peruvian Congress introduced legislation to grant him house arrest; his daughter Keiko, a prominent politician, was arrested on corruption charges; and the Fujimori-era sterilization of Indigenous women was again under scrutiny. [Reuters; BBC; Bloomberg; IACHR Video] Former President Pedro Pablo Kuczynski, who pardoned Fujimori in late 2017, resigned earlier this year and is under investigation for corruption, including in connection with the pardon. [HispanTV]
In a new report and interactive website, the Inter-American Commission on Human Rights (IACHR) has detailed flaws in the United States’ prosecution and incarceration of children, urging reforms to ensure that minors are not tried or sentenced as adults. IACHR, The Situation of Children in the Adult Criminal Justice System in the United States (2018). The report, released in September 2018, examines the legal framework that allows children to be tried in the adult criminal system in light of the State’s international legal obligations, the current status of children within the criminal system, and the conditions children face during their incarceration in adult facilities. See id. According to the IACHR, as of 2016, approximately 200,000 children were tried each year in U.S. adult criminal courts, and were held in adult penitentiaries in violation of their right to special protection and to be tried in a specialized juvenile system. [IACHR Press Release] While the U.S. has taken steps to reduce the number of children coming into contact with the adult criminal justice system, individual American states maintain laws and practices that allow children to be incarcerated in adult facilities. [IACHR Press Release] The report highlights the State’s failure to protect the rights of children in this respect, and recommends specific reforms. [IACHR Press Release] Read more
On September 10, 2018, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC or Child Rights Committee) published its first decision involving sexual violence against a minor, finding that Cameroon had failed to adequately investigate, punish, and redress the rape of a 10-year-old girl. [ACERWC] The Child Rights Committee found that the State’s lack of due diligence also amounted to gender discrimination and a violation of the minor’s right to be free from torture or inhuman or degrading treatment. See ACERWC, Institute for Human Rights and Development in Africa and Finders Group Initiative on behalf of TFA (a Minor) v. Cameroon, Communication No. 006/Com/002/2015, Merits Decision, 31st Ordinary Session (2018). The decision, which the minor’s representatives hailed as ground-breaking, diverges from a 2016 African Commission on Human and Peoples’ Rights decision in which it declined to find that Ethiopia’s failure respond with due diligence to the rape of a minor constituted gender-based discrimination. See ACommHPR, Equality Now and Ethiopian Women Lawyers Association (EWLA) v. Ethiopia, Communication 341/2007, Merits Decision, 19th Extra-Ordinary Session (2016), paras. 133-34, 150. Read more
Two Central American governments ended their cooperation with the United Nations on specific human rights initiatives and sought to exclude UN representatives from their territories in late August 2018. In Guatemala, President Jimmy Morales announced on August 31 he would not renew the mandate of the International Commission against Impunity in Guatemala (CICIG) when it expires in 2019 and barred CICIG head Iván Velásquez from reentering the country, despite a Supreme Court order rejecting a previous attempt to expel him. [IACHR: Guatemala; NYT] Since 2007, CICIG has assisted national authorities in prosecuting corruption, and recently announced an investigation into President Morales for illegal campaign contributions. [NYT]
Also on August 31, Nicaraguan President Daniel Ortega rescinded an invitation to a fact-finding team from the Office of the United Nations High Commissioner for Human Rights (OHCHR), just after OHCHR published a report on authorities’ human rights violations against protesters since demonstrations against the Ortega government began in April 2018. [Al Jazeera; IJRC: Nicaragua] The Inter-American Commission on Human Rights (IACHR), OHCHR, and civil society have expressed concern at these developments. [IACHR: Guatemala; IACHR: Nicaragua; OHCHR Press Release: Concern; HRW: Nicaragua; HRW: Torture] Observers fear the crises in both countries will continue to worsen. [NYT: Authoritarianism] Read more
In the past month, the African Commission on Human and Peoples’ Rights (ACHPR) and the United Nations High Commissioner for Human Rights have called on Cameroon to launch an investigation into persistent reports of a deteriorating human rights situation in the English-speaking Northwest and Southwest regions of Cameroon, including to investigate a video showing the alleged extrajudicial executions of a woman and two children. [ACHPR Press Release: Allegations (French only); OHCHR Press Release] The conflict in Cameroon stems from tensions that arose in 2016 after the English-speaking communities in the State mobilized to demand respect of the English-speaking educational and judicial systems, and to demand more political autonomy. See HRW, These Killings Can Be Stopped: Abuses by Government and Separatist Groups in Cameroon’s Anglophone Regions (2018), 1. In response, the Cameroonian government violently suppressed the protests and arrested many of the demonstrators, which led to armed confrontations. See id. Most recently, the tensions between Anglophone separatists and the largely Francophone government of Cameroon have escalated as a result of separatists’ attacks targeting a Minister of Defense convoy in the country’s Southwest region and the government’s “heavy-handed response.” [OHCHR Press Release; Guardian] Cameroon is obligated, under international human rights law, to ensure the rights to life and to humane treatment, among other rights.
In June, the United Nations Office for the High Commissioner for Human Rights (OHCHR) issued the first ever UN report detailing human rights abuses in Kashmir. [OHCHR Press Release] See OHCHR, Report on the Situation of Human Rights in Kashmir (2018). The report seeks to draw attention to the victims of the human rights violations created by the political situation in the region, with a focus on abuses since the July 2016 killing of a militant leader by Indian security forces, which sparked violent protests throughout the region. [OHCHR Press Release] See OHCHR, Report on the Situation of Human Rights in Kashmir, para. 1. Among the human rights abuses, the report finds cases of unlawful use of force by security forces, enforced or involuntary disappearances, sexual violence, and limitations on education, expression, assembly, and association. [OHCHR Press Release] See OHCHR, Report on the Situation of Human Rights in Kashmir, paras. 32-164. Additionally, the report finds that perpetrators act with impunity and that victims do not have adequate access to justice. [OHCHR Press Release] To address the human rights concerns, the OHCHR calls for an independent mechanism to further investigate human rights allegations in the Kashmir region. See OHCHR, Report on the Situation of Human Rights in Kashmir, 48. Human rights experts have urged the Indian government to allow the creation of such an investigation. [HRW] Both States, India and Pakistan, have committed to, and are legally obligated to, ensure certain rights, including the rights to life, prohibition of torture and inhuman treatment, freedom of expression, freedom of assembly, freedom of association, and education. Read more
The Inter-American Commission on Human Rights (IACHR) recently published its merits report in a case concerning the 1988 extrajudicial killing of Colombian human rights defender Valentín Basto Calderón, which has gone unsolved. See IACHR, Merits Report No. 45/17, Case 10.455, Valentín Basto Calderón et al. (Colombia), 25 May 2017. Bystanders Pedro Vicente Camargo, who was also killed, and his daughter Carmenza, who was injured, were also included as victims in the petition to the IACHR. At a time of armed conflict when State agents and paramilitaries frequently assassinated human rights defenders and community leaders, State agents had threatened Basto Calderón and harassed his family members. The State then failed to conduct a thorough and timely investigation of the events. See id. at para. 1. The International Justice Resource Center (IJRC) submitted an amicus curiae brief to the IACHR to provide supplementary analysis on this case, with a focus on Colombia’s obligations specific to human rights defenders. The Colombian Commission of Jurists represented the petitioners before the IACHR. In holding Colombia responsible for violations to the rights to life and humane treatment, among others, the IACHR took special note of the State’s specific obligations to protect and respect the rights of human rights defenders. Read more
The African Committee of Experts on the Rights and Welfare of the Child (ACERWC) recently published its holding that Mauritania violated the rights to protection from child labor and from child abuse, among other rights and obligations, established in the African Charter on the Rights and Welfare of the Child (African Children’s Charter), due to the enslavement of two children. Two non-governmental organizations – Minority Rights Group International and SOS-Enclaves – submitted the complaint against Mauritania on behalf of two brothers, Said Ouid Salem, born in 2000, and Yarg Ould Salem, born in 2003, who alleged that they were victims of child slavery for 11 years. The Committee found that Mauritania failed to protect the applicants from slavery; to investigate, punish, and prosecute all the perpetrators responsible; and to provide a timely and adequate remedy for the applicants. Based in part on those findings, the ACERWC ultimately held that Mauritania violated its obligations under Article 1 (obligation to realize the rights in the Charter), Article 3 (right to non-discrimination), Article 4 (best interest of the child), Article 5 (obligation to ensure the survival and development), Article 11 (right to education), Article 12 (right to leisure, recreation, and cultural activities), Article 15 (right to protection from child labor), Article 16 (right to protection against child abuse and torture), and Article 21 (right to protection against harmful social and cultural practices) of the African Charter on the Rights and Welfare of the Child. See ACERWC, Decision on the Communication Submitted by Minority Rights Group International and SOS-Enclaves on Behalf of Said Ould Salem and Yarg Ould Salem against the Government of the Republic of Mauritania, Communication No.003/Com/003/2015, Merits Decisions, 30th Ordinary Session (2017), para. 97. Read more