Alfred Yekatom, the first person to be transferred to the International Criminal Court (ICC) in connection with the Court’s investigation into crimes committed in the Central African Republic (CAR) since 2012, made an initial appearance before the Court’s Pre-Trial Chamber II on November 23. [ICC Press Release: Alfred; FIDH] Mr. Yekatom is alleged to have committed war crimes and crimes against humanity between December 2013 and August 2014 in the context of the CAR’s ongoing conflict between the Seleka and the Anti-Balaka armed groups. [ICC Press Release: Yekatom] Yekatom is accused of having commanded an anti-balaka group that carried out killings, torture, forced displacement of Muslim civilians and looting and destruction of Muslim homes and places of worship, in western CAR. CAR authorities delivered Yekatom to the ICC on November 17 in compliance with the ICC’s November 11 warrant for his arrest. [ICC Press Release: Situation] On April 30, 2019, the Court will hold a hearing to determine whether there is sufficient evidence to support the allegations against him and, if so, to transfer his case to the Trial Chamber. [ICC Press Release: Yekatom]
Category Archives: international criminal law
Earlier this month, the International Criminal Court (ICC) pre-trial chamber ordered the ICC to establish a system of disseminating public information to and conducting outreach activities with the affected communities and victims of the situation in Palestine, a situation currently undergoing preliminary examination at the Court. The decision recognizes victims’ right to be heard in the context of the ICC’s work, and requires that outreach activities explain the ICC’s jurisdiction with regards to the situation in Palestine; provide information on the Court, including on the role of victims at each stage of proceedings; and respond to victims’ concerns. See ICC, Situation in the State of Palestine, ICC-01/18, Decision on Information and Outreach for the Victims of the Situation, 13 July 2018, paras. 14-16. The pre-trial chamber’s order marks the first time that the Court has promoted information and outreach activities as early as the preliminary examination stage. [Al Jazeera]
On April 24, the United States Supreme Court ruled in Jesner v. Arab Bank that foreign citizens cannot sue foreign corporations for civil damages in U.S. federal courts for serious violations of international law, such as torture or extrajudicial killings. See Jesner et al. v. Arab Bank, PLC, No. 16–499, slip op. (April 24, 2018). The case was brought against Arab Bank by victims of several terrorist attacks occurring in Israel and the occupied territories. See id. at 1. The plaintiffs alleged that Arab Bank supported numerous terrorist attacks, including those that harmed the victims, by knowingly providing financial services to terrorists, such as accepting deposits it knew were donations used to fund the attacks and pay money to the families of suicide bombers. See id. at 1-3. The plaintiffs brought their case under the Alien Tort Statute (ATS), which provides that United States federal courts may hear cases, brought by non-nationals, of tort committed in violation of international law. See id. at 1-2. The ATS is an exercise in universal civil jurisdiction, as it extends domestic judicial jurisdiction over actions that occurred abroad to foreign plaintiffs; it has historically been a means for non-U.S. citizens to seek redress for serious human rights violations committed outside of the U.S., although the Jesner decision and previous rulings limit the scope of the statute. See, e.g., Jesner, No. 16–499, slip op. at 1; Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). Notably, the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum limited the scope of the ATS to cases that touch and concern the United States with sufficient force to overcome a presumption against the U.S. extending jurisdiction extraterritorially. See Kiobel et al. v. Royal Dutch Petroleum et al., 569 U.S. 108 (2013); Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). International human rights bodies disagree over whether States must exercise universal civil jurisdiction over specific human rights abuses, mainly torture, that occurred abroad and by a foreign defendant. [IJRC] See Naït-Liman v. Switzerland [GC], Judgment of 15 March 2018; CAT, General Comment No. 3 (2012), UN Doc. CAT/C/GC/3, 13 Dec. 2012, paras. 22, 26.
On March 15, the European Court of Human Rights (ECtHR) issued a landmark decision finding that States are not required to allow victims of torture to sue perpetrators in civil proceedings, in the absence of criminal proceedings, for compensation when the act of torture occurred outside of the territory of the State and the perpetrators are not nationals and are domiciled abroad. See ECtHR, Naït-Liman v. Switzerland [GC], no. 51357/07, ECHR 2018, Judgment of 15 March 2018, paras. 97, 217. Accordingly, the ECtHR Grand Chamber held that States are not obligated under international law to exercise universal civil jurisdiction over acts of torture. See id. at para. 203. Universal civil jurisdiction is the power of a domestic court to resolve claims for monetary compensation without there being any connection between the State where the case is brought and the underlying facts of the case. See id. at para. 177. Although the ECtHR recognized that States were obligated to exercise universal criminal jurisdiction over acts of torture, the ECtHR found that there was no similar obligation for civil claims that are wholly separate from a criminal proceeding. See id. at para. 97. This decision diverges from the position taken by the United Nations Committee against Torture (CAT) and various international human rights organizations, including Amnesty International, the International Commission of Jurists, Redress Trust, and the World Organization Against Torture. See id. at paras. 52-53, 161, 167-68. The CAT maintains that States are obligated to award reparations for acts of torture, even if the torture occurs outside of the territory of the State, and to ensure that civil liability and redress is “available independently of criminal proceedings.” See id. at paras. 52-53, 161, 167-68; CAT, General Comment No. 3 (2012), UN Doc. CAT/C/GC/3, 13 Dec. 2012, paras. 22, 26. Read more
This month, the International Criminal Court (ICC), the Inter-American Commission on Human Rights (IACHR), and United Nations special procedures mandate holders all took steps to expose Venezuelan President Nicolas Maduro’s regime’s responsibility for human rights violations and international crimes committed against the Venezuelan population. On February 8, the prosecutor of the ICC announced that she opened a preliminary examination into the situation in Venezuela. The preliminary examination will study, since April 2017, the use of excessive force by State security forces to disperse and end demonstrations and the arrest and detention of thousands of perceived members of the opposition, some of whom have allegedly been subjected to abuse and ill-treatment during their detention. [ICC Press Release] On February 12, the IACHR published and presented to the Organization of American States its report on the human rights situation in Venezuela in 2016 and 2017, noting the deterioration of human rights in Venezuela, and in particular the political, economic, and social crisis in the country. [IACHR Press Release] A group of independent experts at the UN consisting of the Special Rapporteur on the right to adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context; Special Rapporteur on the right to food; Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; and the Special Rapporteur on extreme poverty and human rights released a statement on February 9 that asserts that the degradation of human rights in Venezuela has led to the starvation, deprivation of necessary medicine, lack of necessary hygiene products, and deterioration of living conditions for a large number of Venezuelans. [OHCHR Press Release: Experts]
The Inter-American Commission on Human Rights (IACHR), two United Nations special rapporteurs, and one UN working group recently condemned Peruvian President Pedro Pablo Kuczynski’s decision to issue a humanitarian pardon on December 24, 2017 to former President Alberto Fujimori, who was convicted and sentenced in 2009 to 25 years in prison for murder, kidnapping, and crimes against humanity during his presidency; the IACHR and the UN human rights experts question whether the decision meets international human rights legal requirements, and asserts that it undermines the efforts of victims and witnesses who brought Fujimori to justice. [IACHR Press Release; OHCHR Press Release; HRW: Pardon] See Resolución Suprema No. 281-2017-JUS (2017) [Spanish Only]. The pardon, issued officially for humanitarian reasons due to Fujimori’s health, absolves Fujimori of his convictions and releases him from his sentence. [IACHR Press Release] Peru is obligated under international human rights law to investigate alleged rights violations and punish perpetrators, and not to implement pardons or amnesty laws that undermine the rights to a fair trial and to judicial protection. [IACHR Press Release; OHCHR Press Release]
Some Peruvians and UN experts believe that the pardon was politically motivated because of a potential connection between Fujimori’s pardon and the cancelled impeachment proceedings against President Kuczynski; the impeachment proceedings were dropped just three days after the impeachment hearing of President Kuczynski, who survived a removal vote with the help of a 10-person coalition that crossed party lines to abstain from the removal vote, led by Fujimori’s son Kenji Fujimori. Seven of the 10 lawmakers communicated with Fujimori leading up to the vote. [Reuters; HRW: Pardon; OHCHR Press Release] President Kuczynski’s decision triggered street protests and unrest in Peru. [OHCHR Press Release; Guardian: Pardon] Read more
The International Criminal Tribunal for the former Yugoslavia (ICTY) has issued judgments in its final two cases ahead of the tribunal’s scheduled closure in December. On November 22, 2017, the ICTY – the ad hoc tribunal established by the United Nations to address war crimes committed after 1991 in the territory of the former Yugoslavia – convicted and sentenced Ratko Mladić, also known as the “Butcher of Bosnia,” to life imprisonment for genocide, crimes against humanity, and other war crimes. [ICTY Press Release: Mladić; HRW] In the wake of his conviction, the international human rights community has shown strong support for the Mladić decision, with UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein hailing the judgment as a momentous conviction and describing Mladić as the “epitome of evil.” [OHCHR Press Release] On November 29, 2017, the ICTY issued a judgment on appeal in the case Prosecutor v. Prlić et al., which will be the Tribunal’s final decision. [ICTY Press Release: Prlić et al.] The Appeals Chamber upheld the sentences of the six individuals, who remain convicted of crimes against humanity, violations of the laws or customs of war, and grave breaches of the Geneva Conventions for crimes committed against Bosnian Muslims. [ICTY Press Release: Prlić et al.] The ICTY, which has its seat in The Hague, Netherlands, will formally close on December 31, 2017 after 24 years of operation and concluding proceedings for 161 accused. [ICTY Press Release: Prlić et al.] See ICTY, Key Figures of the Cases. Read more
The Sixth Committee – an intergovernmental committee that considers legal questions in the United Nations General Assembly – finished late last month its consideration of a draft article that asserts State officials do not have immunity from the prosecution of crimes of genocide, crimes against humanity, war crimes, crimes of apartheid, torture, and enforced disappearance in a foreign criminal jurisdiction; the debate arose from a draft article from the International Law Commission (ILC), a group of international legal experts who prepare draft conventions and codify existing rules of international law. The ILC will put forth the draft article as a recognition of existing State practice or as a proposal for a future international convention. See ILC, About the Commission. [UN Press Release: Debate Ends] The Sixth Committee debated the contents of the ILC’s most recent report released during its 69th Session, which included the ILC’s draft of its provisionally adopted Article 7 on international crimes for which immunity from rationae materiae jurisdiction (subject matter jurisdiction) does not apply. See International Law Commission, Report of the International Law Commission at its sixty-ninth session, UN Doc. A/72/10, 4 August 2017, para. 140.
The draft of Article 7 originated from the report of a special rapporteur – a member of the ILC – appointed to address the issue of State officials’ immunity. Some ILC members expressed disagreement with the special rapporteur’s position that States’ practice supports the finding of exceptions to State officials’ immunity – the substance of Article 7. The ILC provisionally adopted the text with only 21 of the 34 members voting in favor of it. [UN Press Release: Immunity] The Sixth Committee’s two-day discussion on the draft law mirrored many of the arguments that were debated within the ILC before its provisional adoption of Article 7, namely whether the basis for the Article is supported by customary international law, whether procedural requirements may address impunity, the balance between prosecution of State officials and State sovereignty, and the ILC’s view of Article 7’s function as either the codification of existing law or the development of law. See Report of the International Law Commission, at VII.C., 180–183. [UN Press Release: Immunity] Read more
In the last two months, the Organization of American States (OAS) held unprecedented hearings to gather witness testimony on the situation in Venezuela to determine whether to refer the State to the International Criminal Court (ICC). [OAS Press Release: First Session; OAS Press Release: Second Session] In the sessions of hearings held so far, the OAS has heard testimony from activists, former members of the Venezuelan government and judiciary, and former members of the Bolivian National Armed Forces, among others; their testimony has described arbitrary arrests and detention, extrajudicial killings, and cruel and degrading treatment. [Moreno Ocampo] Luis Moreno Ocampo, a former ICC prosecutor and current Special Adviser on Crimes against Humanity (Special Advisor) at the OAS, convened the two public sessions of hearings – one in September and one in October – at the OAS headquarters in Washington, D.C.; he may convene additional sessions in November. [OAS Press Release: Adviser; OAS Press Release: First Session; OAS Press Release: Second Session]
In July, the OAS Secretary General, Luis Almagro, designated Moreno Ocampo as Special Adviser, and as such, Moreno Ocampo is tasked with analyzing, studying, and debating the ongoing situation in Venezuela with interested parties to determine whether the State committed crimes against humanity and can be referred to the ICC. [OAS Press Release: Adviser] Accordingly, the sessions were held to examine whether the abuses by the Venezuelan government rise to the level of crimes against humanity and if they were committed in a widespread and systematic manner. [OAS Press Release: First Session; OAS Press Release: Second Session; Moreno Ocampo] The testimony gathered in the sessions will contribute to a final report, along with information submitted by additional organizations; the Independent Panel of International Experts, appointed by the OAS Secretary General in September, will review the report and recommend it to the Secretary General. [OAS Press Release: Independent Panel] This is the first time that the regional body has held sessions with the purpose of referring a Member State to the ICC. Read more
On August 17, 2017, the International Criminal Court (ICC) issued a Reparations Order in the case of Ahmad Al Faqi Al Mahdi, who in September 2016, upon pleading guilty to the destruction of 10 religious and historic sites in Timbuktu, Mali, was sentenced to nine years’ imprisonment. [ICC Press Release; IJRC] In its Reparations Order, Trial Chamber VIII of the ICC found Al Mahdi liable for 2.7 million euros (or approximately 3.18 million USD) in both individual and collective reparations for the community affected by the 2012 attacks, which occurred in the context of Mali’s internal armed conflict. [ICC Press Release] The Court, emphasizing the cultural and sentimental value of the destroyed property, ordered reparations for three categories of harm: damage to the targeted buildings, resulting economic loss, and moral harm. [ICC Press Release] The reparations are designed to rehabilitate the attacked sites, address the community’s financial losses, and potentially fund symbolic measures, such as memorials, to serve as public recognition of the harms incurred by the Timbuktu community. [ICC Press Release] Given Al Mahdi’s indigence, the Court encourages the Trust Fund for Victims (TFV), an agency that will implement the order, to supplement the reparations to the extent possible. [ICC Press Release; Guardian] Read more