The International Criminal Court - Limits to Jurisdiction in the US
This quarterly international criminal update provides a summary of a cross section of news stories in the period January 2019 – March 2019.
France transferred Patrice-Edouard Ngaïssona over to the ICC detention centre on 23 January 2019, pursuant to an arrest warrant for war crimes and crimes against humanity, including murder, torture and recruiting child soldiers. Ngaïssona, a top executive of the Confederation of African Football, is accused of co-ordinating anti-balaka militia attacks on the Central African Republic's Muslim population in 2013-14. He denies all charges. The confirmation of charges hearing is scheduled to open on 18 June 2019.
In January 2019, the International Criminal Court (ICC) acquitted Ivory Coast ex-President, Laurent Gbagbo, who had been charged with four counts of crimes against humanity in relation to the wave of post-election violence in 2011 that left 3,000 dead and 500,000 displaced. Gbagbo was captured by UN and French-backed forces and he was the first former president to go on trial at the ICC. Gbagbo denied all charges, claiming they were politically motivated. Judges at the ICC ruled that there was no case to answer and said that the prosecutors had failed to demonstrate "the existence of a 'common plan' to keep Mr Gbagbo in power” or that the “public speeches by Gbagbo constituted ordering, soliciting or inducing the alleged crimes". Gbagbo was released on bail to Belgium in February, and the prosecution may appeal the acquittal.
Ahmed Jabbar Hasan, a former corporal in the Iraqi army, has been sentenced in Finland for war crimes after he was filmed cutting of the head of a dead Islamic State (IS) fighter during an operation against IS near Karma in March 2015. His actions were captured on video and the footage was shared on Facebook, along with another video of him posing in front of burning bodies. An investigation was launched after someone viewed the footage online and reported it to the police. The Helsinki court said that his actions were “inhuman and degrading” and prescribed an 18 month suspended sentence for desecrating and violating the dignity of a dead body, which violates the international statute on war crimes.
Maha El Gizouli, the mother of one of the Islamic State ‘Beatles’ – so called because of their British accents – challenged the Home Secretary’s decision to give mutual legal assistance to the USA that may be used in his prosecution there. Her son, El-Shafee El Skeik, is accused of killing a number of high-profile Western captives and was captured in January 2018 and is believed to be held by Kurdish forces in Syria. By sharing evidence with the US without seeking assurances that the death penalty would not be imposed if he is convicted, Elgizouli argued that the Home Secretary’s decision was inconsistent with the UK’s policy of opposition to the death penalty. In January 2019, the High Court ruled against Ms Elgizouli, saying that the Government does not have a duty to "to take positive steps to protect an individual's life from the actions of a third party." See our earlier blog The death penalty: do we, or do we not, oppose it? .
German authorities have arrested two men on allegations of carrying out or aiding torture and crimes against humanity in their suspected roles as former secret service offices for the Syrian government. The men left Syria in 2012 and sought asylum in Germany. The Guardian reported that it was the first time that western criminal prosecutors have arrested alleged tortures working for Bashar al-Assad. Warrants have been issued for at least 24 other alleged members of Assad’s government.
The United Nations Commission on Human Rights in South Sudan stated that foreign oil companies may be complicit in war crimes and that there had been a lack of corporate accountability. The report emphasised the role of South Sudan’s oil industry as “a major driver for the continuing violence, the ensuing human suffering, and the violations of international humanitarian law witnessed there”. During a panel discussion about the report, it was noted that companies were exposed to potential criminal liability, such as the prosecution of Chairman and CEO of Swedish oil company Lundin.
On 20 March 2019, the appeal court of the International Criminal Tribunal for the Former Yugoslavia upheld Radovan Karadžić’s conviction and increased his sentence to life imprisonment. After being convicted in 2016 of genocide and war crimes, he was originally sentenced to a 40-year jail term. The Judge commented that the original jail term was too lenient, given the “sheer scale and systematic cruelty” of Karadžić’s crimes. All but one of his appeals were dismissed as “mere disagreement” with the Court’s conclusions. The judges decided to increase his original sentence, saying that the trial chamber had “abused its discretion” in passing the sentence.
In an attempt to obstruct international criminal justice, the US has denied visas to investigators from the ICC who were investigating crimes that are alleged to have been committed by the US armed forces and CIA in Afghanistan. John Bolton, the US national security adviser, claimed that the ICC is an “illegitimate court” which “poses a threat to American national sovereignty”. Previously, in September 2018, he told the UN that “if the [ICC] comes after us, Israel, or other US allies, we will not sit quietly”. In the same speech he threatened sanctions against any country that assisted any US focussed investigation. See our previous blog The International Criminal Court - Limits to Jurisdiction in the US for further information.
On 7 March 2019, British lawyers asked the ICC to bring charges against President Assad for Crimes Against Humanity. The case was filed on behalf of 28 Syrian refugees who were forced to flee to Jordan following attacks by Syrian government forces. Dossiers of evidence have been submitted to the ICC, including victim accounts that they were attacked, detained, tortured, and witnessed mass killings. To date, there have been numerous efforts to persuade the ICC to investigate allegations of war crimes; however, so far they have all failed because the ICC have not accepted jurisdiction. Syria is not a signatory to the Rome Statute which raises questions about jurisdiction; however, Jordan is a signatory, and lawyers are now relying on a precedent set by the ICC in extending jurisdiction to the crime of forcible population transfers. This precedent was set in September 2018 when the ICC accepted jurisdiction to investigate the deportation of Rohingya refugees in Bangladesh, where the ICC has jurisdiction and where part of the alleged crimes took place.
Originally convicted in 2016 and sentenced to 18 years imprisonment, Jean-Pierre Bemba was later acquitted by the ICC in May 2018. He is now seeking almost 70 million euros in damages for his alleged unlawful detention, and to cover the cost of his legal fees and other losses sustained due to the alleged mismanagement of his assets that were seized by the Court. Bemba’s lawyer, Peter Haynes, claims that his client’s assets were “simply allowed to rot”. It is also claimed that, if the Court does award damages, some would go towards paying reparation to the victims of war in Congo. Previous claims by other Defendants for damages for unlawful detention have been refused by the ICC.
On 17 March 2019, the Philippines officially withdrew from the ICC, almost a year after the Court launched an investigation in to a wave of state-sanctioned violence that took place at the start of President Rodrigo Duterte’s presidency in 2016. The State claims that the violence took place as part and parcel of the ‘war on drugs’, which, according to Amnesty International, has created an environment where “police and unknown armed gunmen…have free reign to kill [those suspected of using and selling drugs] without impunity”. This has been seen as a deliberate attempt to “evade international justice”. However, the Philippines’ withdrawal will not have any impact on the Court’s jurisdiction since the investigation was on-going at the time the withdrawal became effective.
On 12 March 2019, Reporters Without Borders submitted a formal request to the ICC, asking the Court to investigate crimes of violence against journalists that took place during the terms of Mexico’s two preceding presidents (between 2006 and 2018). The request identifies 116 crimes of violence against journalists that were related to the victims’ journalistic work, including murders and forced disappearances. It is submitted that these crimes of violence constitute Crimes Against Humanity, and that they have taken place against a “backdrop of complicity on the part of the authorities”
On 26 March 2019, Swiss prosecutors announced their first international criminal law-related indictment. A Liberian man, allegedly the former commander of the United Liberation Movement of Liberia for Democracy, has been accused of murder and rape during the first Liberian civil war. Prosecutors confirmed that they were looking at a dozen other cases for war crimes, genocide and/or crimes against humanity.
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