French authorities have arrested Félicien Kabuga, long wanted by the International Criminal Tribunal for Rwanda (ICTR) for his alleged role in the 1994 genocide in Rwanda. [Guardian] Using his fortune and his radio station, Kabuga is accused of funding, logistically supporting, and inciting anti-Tutsi violence. [OHCHR Press Release; ACHPR Press Release] He was indicted by the ICTR in 1997 on genocide charges. [ACHPR Press Release] A French court will decide on May 27, 2020 whether his trial will be handled by the United Nations International Residual Mechanism for International Criminal Tribunals (IRMCT) – which is concluding the remaining work of the ICTR and its counterpart, the International Criminal Tribunal for the former Yugoslavia – or in France, where Kabuga is arguing he will receive a fair trial. [IJRC; NYTimes: Trial] The African Commission on Human and Peoples’ Rights (ACHPR) has called for the case to be transferred to Rwandan courts for trial, noting a “preference for national level prosecution” that meets the “needs of the affected people to participate in and witness the process.” [ACHPR Press Release] Kabuga’s arrest on May 16, 2020 is considered a highly significant development in international justice. [OHCHR Press Release; Just Security; NYTimes: Arrest] With his apprehension and the recently-confirmed death of Augustin Bizmana, just six fugitives indicted by the ICTR or IRMCT remain at large. See IJRC, ICTR.
Category Archives: international criminal law
Efforts to secure accountability for the atrocities of Sri Lanka’s civil war faced another setback in March 2020 when Sri Lankan President Gotabaya Rajapaksa pardoned one of very few individuals convicted of committing atrocities during the conflict. [OHCHR Press Release: Pardon] President Rajapaksa, himself an accused war criminal, ordered the immediate release of former army Sergeant Sunil Ratnayake, convicted in 2015 for the murder of eight Tamil civilians (commonly referred to as the Mirusuvil massacre) in 2000. [NYTimes] A spokesperson for the United Nations High Commissioner for Human Rights (OHCHR) condemned the pardon as “an affront to victims and yet another example of the failure of Sri Lanka to fulfill its international human rights obligations to provide meaningful accountability for war crimes, crimes against humanity and other gross violations of human rights.” [OHCHR Press Release: Pardon] Civil society organizations have expressed similar reactions, with Amnesty International accusing Sri Lanka of using the COVID-19 pandemic “as an opportunity to release those convicted for heinous crimes.” [Amnesty International: Pardon] More than 10 years later, those accused of atrocities during the 26-year conflict have largely avoided accountability in the rare civil and criminal proceedings in Sri Lanka and abroad, and given the government’s reluctance to investigate alleged perpetrators. [Reuters] Read more
Evidence of past and ongoing mass atrocities against the Rohingya in Myanmar took central focus in two significant developments last week, as the International Court of Justice (ICJ) ordered the government to act to prevent genocide and the United Nations Special Rapporteur on Myanmar issued her final end-of-mission statement. [UN News: ICJ; OHCHR Press Release: Statement] Also last week, the controversial government-created Independent Commission of Enquiry (ICOE) released the executive summary of its final report, in which it found evidence of possible war crimes but not genocide against the Rohingya. [Al Jazeera] Meanwhile, the International Criminal Court (ICC) is proceeding with an investigation into the situation in Myanmar, authorized in November 2019; and, the UN Independent Investigative Mechanism for Myanmar (IIMM) has begun collecting evidence of the most serious violations of international law, since becoming operational in August 2019.
In a new report, a United Nations entity asserts that violent attacks, including sexual violence, between members of the Lendu and Hema community in the Democratic Republic of Congo since late 2017 may constitute crimes against humanity and war crimes. In January 2020, the Human Rights Division of the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) and the UN Office of the High Commissioner for Human Rights (OHCHR), which together make up the UN Joint Human Rights Office (UNJHRO) in the DRC, published a report assessing violence in the DRC’s northeastern Ituri province in the context of inter-ethnic tensions between the communities of Hema herders and Lendu farmers. [OHCHR Press Release] The report documents widespread attacks against civilians, mainly targeting the Hema community and including women and children, between December 2017 and September 2019. See UNJHRO, Rapport public sur les conflits en territoire de Djugu, province de l’Ituri Décembre 2017 à septembre 2019 (2020) [French only]. In particular, the report finds that the attacks may constitute the crimes against humanity of murder, torture, rape and other forms of sexual violence, among others – and, given that the events took place in the context of an internal armed conflict, may also constitute war crimes. See id. at paras. 78-81. The office of the UN High Commissioner for Refugees (UNHCR) estimates that at least 556,000 people have fled from the Ituri province as a result of the conflict, and about 57,000 people have fled to neighboring Uganda to seek refuge over the past two years. [UN News: Report] The new report consolidates and expands upon previous reporting by UNJHRO and UNHCR on the conflict. [VOA; Al Jazeera; UN News: Flare-Up]
On December 5, 2019, the Prosecutor of the International Criminal Court (ICC) published the 2019 Report on Preliminary Examination Activities, detailing the status of nine initial assessments by her office of possible war crimes, crimes against humanity, and acts of genocide around the world. See ICC, Report on Preliminary Examination Activities (2019), para. 14. The ninth annual Report covers the Office of the Prosecutor’s (OTP) activities and findings with respect to the status of situations in the preliminary examination stage during the period between December 1, 2018 and November 30, 2019. See id. at para. 17. In that time, the OTP concluded two preliminary examinations, resulting in one authorized investigation. It has eight ongoing preliminary examinations, into the situations of Venezuela, Colombia, Guinea, Iraq/the United Kingdom, Nigeria, Palestine, the Philippines, and Ukraine. See id. at para. 21. Further, at the request of the ICC Appeals Chamber, the Prosecutor filed a reconsideration of her previous decision not to request an investigation into the Gaza flotilla situation referred by Comoros. See id. at para. 20.
The Special Tribunal for Lebanon (STL) announced new charges on September 16, 2019 against Salim Jamil Ayyash relating to his alleged involvement in the 2004 and 2005 attacks targeting Lebanese politicians Marwan Mohammed Hamade, Georges Anis Hawi, and Elias Miche El-Murr. [STL Press Release] The new charges are separate from the pending charges against Ayyash, and three other defendants, in connection with the February 14, 2005 attack that killed former Lebanese Prime Minister Rafik Hariri and 21 others. [STL Press Release] While Ayyash’s whereabouts are unknown, the Pre-Trial Judge issued both domestic and international warrants to be executed by Lebanese authorities and INTERPOL, respectively, for his arrest and handover to the STL. [STL Press Release] The STL is the first internationalized criminal tribunal to prosecute crimes of terrorism. See STL, Ayyash Case Information Sheet, March 2019. Since opening its doors in 2009, the tribunal has yet to issue any judgments in its pending cases, and none of the defendants are in its custody. [Washington Post; UN Press Release: STL]
Nuon Chea, a former high-ranking official in the Khmer Rouge, died on August 4, 2019 while serving a life sentence imposed by the Extraordinary Chambers in the Courts of Cambodia (ECCC). [ECCC Press Release: Chea; HRW] In 2014, the ECCC convicted Chea, also known as “Brother No. 2,” of orchestrating the forced removal of approximately two million people and directing the torture and killing of more than 14,000 people at a Cambodian detention center. [HRW] His death has prompted renewed scrutiny of the search for justice in Cambodia and the role of the ECCC, a United Nations-backed tribunal tasked with prosecuting senior Khmer Rouge leaders and other individuals “most responsible” for the atrocities carried out under the regime, from 1975 to 1979. [HRW] The ECCC has initiated four principal cases, involving 10 defendants, since it began operating in 2006; in that time, it has completed the trials of three defendants, all of whom were convicted and sentenced to life imprisonment. See ECCC, Key Events; ECCC, Introduction to the ECCC. Civil society and others have criticized the ECCC for being long overdue in convictions and for addressing only a fraction of Khmer Rouge’s crimes, resulting in impunity for many other senior Khmer Rouge leaders and current government officials. [HRW] The tribunal faces serious obstacles and pushback, in particular from uncooperative government members and Cambodian Prime Minister and former Khmer Rouge official, Hun Sen, who does not require government members to produce evidence. [HRW]
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.
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.
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