The FCA – Transformation to Assertive Supervision
This quarterly international criminal law update provides a summary of the news stories in the period January – March 2022.
The relevance of international criminal law has been tragically highlighted by the current events in the Ukraine. This fast moving event has been covered below, along with a number of other international criminal law updates.
London based law firm, Stoke White, has formally requested that the Metropolitan Police investigate allegations of war crimes committed in Kashmir by India’s army chief (General Manoj Mukund Naravane) and a senior government official (Amit Shah).
The firm claims to have submitted extensive evidence, documenting the involvement of the two individuals in the alleged torture, kidnapping and killing of journalists, activists and civilians in the area, particular those of Muslim faith. Their report is said to be based on more than 2,000 testimonies.
The request is made under the principle of universal jurisdiction, which gives countries authority to prosecute grave crimes regardless of where they are committed in the world. To date, four cases have been brought in the UK under this principle, including the recent case of Agnes Taylor (See our report here).
The Regional High Court in Germany has convicted a former Syrian intelligence officer, Anwar Raslan, of committing crimes against humanity. These crimes include the torture, murder and rape of detainees in Branch 251, an infamous military intelligence facility in Damascus city, colloquially known as “Hell on Earth”. He has been sentenced to life imprisonment.
This is another example of a case brought under the principle of universal jurisdiction. This case in particular is a reminder of the critical role national courts can play in combating impunity for international crimes where other avenues may be blocked (Syria is not a member of the International Criminal Court and, in 2014, Russia and China vetoed the UNSC’s attempt to give court a mandate over crimes committed in Syria).
The Regional High Court in Germany is trying Alaa M, a Syrian doctor, for allegedly torturing detainees at the military hospitals in Homs and Damascus between 2011 and 2012. The doctor also faces one count of murder for administering a lethal injection. He denies all allegations. The trial continues.
Alaa M has been living and working as a doctor in Germany since 2015. The case is also brought pursuant to the principle of universal jurisdiction, as above.
On 2 January 2022, the UAE decriminalised bounced cheques. The Federal Decree-Law No. 14 of 2020 makes major amendments to Federal Law No. 18 of 1993, which stipulated that any individual who issued a cheque which is not honoured could face criminal proceedings. Now, only offences involving fraud - where the individual deliberately sets out to be deceptive - can be brought before the UAE courts. It is hoped that this amendment will help to make the judicial process much more expedient and straightforward. Importantly, it will also decrease the number of INTERPOL Red Notices which were issued based on a bounced cheque alone. See more about this in our previous blog here.
In 2019, Gambia filed a case with the International Court of Justice in The Hague alleging that Myanmar’s authorities had committed genocide against the Rohingya people. The ICJ heard Gambia’s arguments in December 2019. The case now continues, with the court considering Myanmar’s preliminary objections to the case, namely challenges to the court’s jurisdiction on the matter and Gambia’s legal standing in the case.
This is not a criminal case. The role of the ICJ, the principle judicial organ of the UN, is not to administer criminal justice but to settle legal disputes submitted by states and to hand down advisory opinions. In the case of Myanmar, the court is concerned with the question of state responsibility for genocide.
The human rights group Fortify Military has published a report which accuses the Myanmar military of allegedly committing war crimes in the state of Karenni. The allegations include murdering civilians and using them as human shields between May 2021 and January 2022. The report is based on the testimony of eyewitnesses and survivors from the area. The group has requested that the ICC investigate the matter and has urged The Association of Southeast Asian Nations to support an arms embargo in the country.
The trial of a man from Afghanistan has started in the Netherlands. He is alleged to have tortured prisoners while working in a Kabul jail during the Afghan conflict in the 1980s. The man is elderly and of frail health. He denies the allegations and claims it is a case of mistaken identity. It has been reported that the defence maintain that this was an insurgent action, as opposed to an ‘internal armed conflict’, which is required for the Dutch courts to try this case pursuant to the principle of universal jurisdiction. The case is on-going.
On 24 February, Russian troops invaded Ukraine purportedly to defend the people of Donetsk and Luhansk, who Putin claims are victims of genocide. Russia has also declared that these areas independent states. The international community at large has condemned the action and sought various measures, including sanctions, to try to pressure Russia to cease military action. Nevertheless, Russia maintains that its military intervention in Ukraine is supported by international law.
Initially, the ICC advised that it was monitoring the situation in Ukraine acknowledging that it had no jurisdiction over the crime of aggression, which originally was the most arguable crime. However, as the situation has worsened, the ICC has announced that it will launch an investigation into the commission of possible war crimes and crimes against humanity in Ukraine.
Ukraine is not party to the ICC but it has awarded jurisdiction to the court.
At the same time, Ukraine has filed an application at the International Court of Justice to initiate proceedings against the Russian Federation under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. On 16 March 2022, the ICJ ordered Russia to suspend military operations in Ukraine.
The Metropolitan war crimes unit has arrested a man in the UK on suspicion of offences under Section 51 of the International Criminal Court Act 2001. The investigation relates to the murder of a journalist in 2000, during the civil conflict in Sri Lanka. The journalist, Mylvaganam Nimalarajan, reported on the civil war and uncovered instances of alleged human rights abuses and electorial fraud. He wrote for multiple local and international outsets, including the BBC.
The Swedish telecom company, Ericsson, is alleged to have made payments to Islamic State terrorist group in order to maintain its business operations in Iraq. This is said to include handing cash to suppliers for undefined work, using suppliers to make cash payments and the payment of “inappropriate” travel and expenses.
This case is the latest in a growing number of investigations into corporate complicity in war crimes; in November 2021 the Swedish company Lundin was charged with complicity in war crimes in Sudan. Similarly, in September 2021, the French Supreme Court handed down an anticipated judgment approving the indictment against LafargeHolcim, a Franco-Swiss company accused of financing terrorism in Syria.
On 3 March 2022, an alleged former Gambian "death squad" member, Bai L., was charged with committing crimes against humanity. The crimes are said to have taken place over a decade ago, when the Gambian president deployed the squad to carry out killings in a bid to suppress and intimidate. Bai is charged with involvement in such killings, and one attempted killing.
A former militia leader (and former government minister) from Central African Republic, accused of committing war crimes and crimes against humanity, has appeared before the International Criminal Court. Following a warrant issued for his arrest, he was handed over the ICC this month by Chad. He is alleged to have committed atrocities against the Muslim population and is the fourth suspect from the conflict to appear before the ICC.
His next hearing will take place on 31 January 2023, when the evidence supporting the charges will be evaluated.
A woman who was brought into the UK by diplomat from the United Arab Emirates has been successful in challenging the CPS’ decision not to prosecute the diplomat. The woman accepted a job to work with the diplomat, who was a former assistant military attaché at the UAE embassy, and his family when they moved to the UK. However, she alleges that the family exploited her and she was paid a fraction of what she was promoted and kept locked in the diplomat’s home most of the time. The high court ruled that the CPS applied criteria too narrowly when deciding whether to prosecute the diplomat. The judges ordered the CPS to reconsider and to remake the decision as whether to charge the diplomat with offences relating to trafficking.
As above, the ICC’s chief prosecutor, Karim Khan, announced that he will investigate suspected atrocities in Ukraine. Khan has stated that there is a “reasonable basis” to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.
However, the ICC is unable to investigate Russia in relation to the crime of aggression. In order to remedy this, in early March, a campaign to create a special tribunal (similar to the ICTY and ICTR) quickly gained momentum. The campaign (with supporters such as Ukrainian Foreign Minister Dmytro Kuleba, former British Prime Minister Gordon Brown and a former prosecutor for the Nuremberg tribunal) calls on this special tribunal to investigate the crime of aggression against Ukraine.
At a national level, a number of countries, such as Estonia, Switzerland, Germany, Poland and Sweden, have also opened their own investigations into the conflict. The principle of universal jurisdiction allows countries can use their domestic courts to prosecute crimes which did not occur on their territory or by their nationals. Polish prosecutors have reportedly collected some 300 witness testimonies from refugees crossing the border.
The US has also now formally accused Russian forces of committing war crimes in Ukraine and said it would pursue accountability “using every tool available”.
Finally, Ukraine is also investigating war crimes being committed within their borders. It has been widely reported that the prosecutor general has said that they have launched 2,500 war crimes cases and identified 186 suspects, including Russian government officials, military leaders and propagandists.
For further information on issues raised within this blog, please contact a member of our criminal team.
Emily Elliott is an Associate in the Criminal Litigation department, specialising in all areas of financial and business crime, internal investigations, international crime and general crime.
Jordan Hawthorne is currently a trainee solicitor in the Employment team. Prior to joining the firm, Jordan was a paralegal for an in-house legal team at a large international company. She provided support on corporate and commercial legal matters across the UK, Europe, Russia and Israel.
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