International Criminal Law Roundup - Q3 2019

10 October 2019

This quarterly international criminal law update provides a summary of a cross section of news stories in the period July 2019 – September 2019. Please also see our round-up from Q1 2019 and Q2 2019.


July

Former Congolese rebel leader Bosco Ntaganda found guilty of war crimes and crimes against humanity



Following a trial which started in 2015, in July, the ICC found Bosco Ntaganda guilty of 18 counts of war crimes and crimes against humanity.  The charges included murder, rape, sexual slavery and using child soldiers and were committed in the Democratic Republic of the Congo between 2002 and 2003.  He is the first person convicted of sexual slavery by the ICC.  Ntaganda voluntarily surrendered himself in 2013.  He has not yet been sentenced but, in September 2019, the prosecutor asked judges to hand Ntaganda a 30 year prison sentence, which is the lengthiest sentence the ICC can make.

 

Opening of the confirmation of charges hearing in Al Hassan case



The Prosecutor of the ICC asked judges to approve war crimes and crimes against humanity charges against Al Hassan Ag Abdoul Aziz.  He is alleged to have committed offences while he was de-facto chief of Islamic police in Timbuktu, Mali, during a 2012-2013 rebel takeover of the city.  The offences include destroying cultural monuments and enforcing policies which led to the sexual enslavement of women and girls.  On 30 September 2019, the ICC unanimously confirmed the charges.

This follows a similar case in 2017, when Ahmad al-Faqi al-Mahdi pleaded guilty to the destruction of cultural heritage in Timbuktu.  He was sentenced to nine years in prison.

 

Supreme Court to hear Nigerian villagers' battle with Shell



The Supreme Court is going to hear an appeal by two communities from Nigeria, in relation to the alleged environmental failures by a subsidiary of Royal Dutch Shell.  The communities claim they cannot seek redress locally.  They are appealing a decision made by the Court of Appeal in February 2018, which stated that the English courts do not have jurisdiction.

The decision by the Supreme Court was initially stayed pending a similar case brought on behalf of a community in Zambia against a parent company based in England. In April 2019, the Supreme Court found that companies can be held to account for the commitments they make publicly regarding their subsidiaries and their commitments to the communities they serve.

 

ICC Prosecutor requests authorisation to investigate Bangladesh/Myanmar situation



In July, the Prosecutor of the ICC requested authorisation from ICC judges to open an investigation into alleged crimes of humanity committed against the Rohingya people from Myanmar, occurring on the territory of Bangladesh.  The Prosecutor has determined that “there is a reasonable basis to believe that at least 700,000 Rohingya people were deported from Myanmar to Bangladesh through a range of coercive acts and that great suffering or serious injury has been inflicted on the Rohingya through violating their right to return to their State of origin.” In 2018, the ICC judges ruled that the court had jurisdiction over the alleged deportation of the Rohingya people from Myanmar (which is not a member of the ICC) to Bangladesh (which is a member of the ICC).  Myanmar’s government has previously rejected the court’s jurisdiction.

 

August

General accused of war crimes appointed as Sri Lanka army chief



The U.N. Department of Peace Operations has suspended Sri Lankan troops from all international peacekeeping duties in response to the appointment of Major General Shavendra Silva as the head of the country’s armed forces. The appointment drew concern from a number of Western nations, including the UK, because of the Major General’s record. A 2015 report published by the UN High Commissioner for Human Rights accused Sri Lankan forces of committing “grave abuses” which included unlawful killings, sexual and gender based violence, torture and attacks on humanitarian facilities in the course of the Sri Lankan separatist conflict. According to the report, Major General Silva’s army division was responsible for shelling a hospital and UN hub in Putumattalan. He has dismissed the allegations against him and praised the courageous decision to appoint him despite foreign pressure.

 

U.N. body orders Bosnia to pay wartime rape victim



On 2 August 2019, the UN Committee against Torture ordered Bosnia and Herzegovina to pay compensation to a Muslim Woman, who was raped by a soldier in 1993 during the Bosnian War, and establish a nationwide war crimes reparation scheme. In a landmark decision, the complainant’s rapist had been found guilty and ordered to pay her 30,000 Bosnian Marks (€15,000) in 2015. However, he did not have the means to pay, the Bosnian state did not have a system of compensation and the complainant’s application for the Bosnian State to pay was found to be time barred by the Bosnian Constitutional Court. In those circumstances, the Committee against Torture found that the complainant had been left without any effective legal recourse to enforce her right to fair and adequate compensation, a violation of Article 14(1) of the UN Convention against Torture. The Committee ordered the State to take the necessary steps to rectify their on-going breach.

 

War crimes trial in 9/11 case set to start in 2021



On 30 August 2019, US military judge, Col. W. Shane Cohen, set a start date for the trial before military commission of five men charged with planning and aiding the 11 September 2001 terror attacks. The men, who were first captured in Pakistan in 2002 and 2003 and have been held in Guantanamo Bay since 2006, were arraigned in May 2012. The U.S. has charged the five men who with war crimes including terrorism, hijacking and the murder of those killed in the attacks. The charge sheet names the 2,976 people who died in the attacks. If the much delayed trial goes ahead, it is set to begin on 21 January 2021 and is expected to some nine months. It will take place in Guantanamo and concerns have been raised over the preparedness of the camp to hold the trial. There are also determinations that need to be made over the admissibility of crucial evidence given that the defendants have been subjected to torture which may cause further delay. If convicted the defendants could face the death penalty.

 

Lawyers to complain to ICC about Brazilian deforestation



As the deforestation of the Brazilian Amazon hit the highest level since the current monitoring system began in 2015, a group of lawyers prepared to file a complaint against the president of Brazil, Jair Bolsonaro, for crimes against humanity and ecocide at the ICC. Since Bolsonaro took office in January 2019, deforestation in the Amazon has increased significantly and widespread fires raged in the region in August. Ecocide is the criminal destruction of the environment and it includes causing loss, damage to or destruction of ecosystems. The ICC widened its remit in 2016 to prioritise crimes that result in the “destruction of the environment”, “exploitation of natural resources” and the “illegal dispossession” of land.

 

September

ICC probe into U.S. war crimes in Afghanistan given new life



ICC judges have given the Prosecutor permission to appeal their decision to reject an investigation into possible war crimes and crimes against humanity committed in Afghanistan. The Prosecutor had requested an investigation because there was a reasonable basis to believe that war crimes had been committed by the Taliban, Afghan National Security Forces, U.S. armed forces, and the CIA.

As mentioned in our quarter two round-up, earlier this year, the ICC initially rejected the request to open an investigation because the current circumstances of the situation in Afghanistan meant that the prospects for a successful investigation and prosecution were extremely limited. They also noted that Bensouda had not been able to secure cooperation from the relevant parties. She has now been given permission to appeal that decision.

 

Hong Kong extradition bill withdrawn



Hong Kong’s leader, Carrie Lam, has agreed that the government will withdraw the heavily criticised extradition bill. The controversial bill was first introduced in March 2019 and sparked months of protests. There were concerns that Hong Kong residents would be extradited to mainland China, where they would be subject to and tried under China’s obscure judicial system, which would also undermine Hong Kong’s autonomy under the ‘one country, two systems’ principle. Demonstrations still continue as the protestors’ other four demands have not been met: universal suffrage, an independent inquiry into alleged police brutality, the withdrawal of the characterisation of the protests as ‘riots’ and amnesty for all arrested protestors.

 

ICC judges order a review of Gaza Flotilla attack decision



An ICC appeals panel has ordered for the reconsideration of whether to open a formal investigation into the attack by Israeli forces of an aid Flotilla heading to the Gaza strip in 2010. Presiding Judge Solomy Bossa ordered ICC Prosecutor Fatou Bensouda to again decide whether or not to open a formal probe by 2 December 2019. Despite acknowledging that war crimes may have been committed, Bensouda initially declined a request to investigate as she did not think the case met the seriousness threshold. An appeal of that decision and a judicial review followed, which Bensouda again denied. In the latest step in a long legal battle to bring the case before the court, the ICC judges criticised Bensouda’s rejections to review the case and ordered that “the Prosecutor must reconsider her decision”. Although Israel is not a member state of the ICC, its nationals could face charges if Bensouda does decide to open up a probe.

 

Former rebel leaders hear war crimes accusations at the ICC



After being handed over to the ICC in January 2019 (see details in our quarter one round-up), two alleged former rebel leaders in the Central African Republic (“the CAR”) have heard details of war crimes accusations against them in a confirmation of charges hearing. Alfred Yekatom and Patrice-Edouard Ngaïssona are alleged to have committed war crimes and crimes against humanity in the CAR between 2013 and 2014. The confirmation of charges hearing is not a trial. Instead, the judges heard the oral submissions of the Prosecutor, the Legal Representatives of the Victims and the Defence in order to determine whether there is sufficient evidence to establish substantial grounds to believe that they committed each of the crimes charged. If the charges are confirmed, the trial will begin. The confirmation of charges hearing will conclude on 11 October.

 

Britain, the US and France may be complicit in Yemen war crimes, UN report says

 

A recent United Nations report named the western nations that could be implicated in war crimes committed in Yemen. The report, by a team of expert investigators appointed by the UN Human Rights Council, found that through providing weapons used in the conflict and intelligence and logistics support, these nations could be culpable in assisting the Saudi-led coalition. It has been recommended that all member states put a ban on weapon sales to parties to the conflict so they cannot be used to commit serious crimes. As detailed in our quarter two round-up, the Court of Appeal ruled in June that the UK had failed to properly investigate the risk of arms exports to Saudi Arabia. This report is likely to affect the response of the UK government to the ruling, which is expected imminently.

 

The Met asked to launch war crimes inquiry over Yemen funeral attack



The Metropolitan police has been asked to launch a war crimes investigation into Saudi and Yemeni military and governmental officials over an airstrike that killed 137 civilians and injured a further 695 at a funeral in Yemen in 2016. It is alleged that the officials are directly responsible for ordering the attack despite knowing that those in attendance were civilians. No one has been investigated or charged for the incident. The complaint was submitted by lawyers acting on behalf of a UK national whose relative was among those who died in the attack. The powers of universal jurisdiction allow states to undertake investigations and prosecutions for serious offences even “in the absence of any link between the crime committed and the prosecuting state” (i.e. if the crimes were carried out by foreign nationals abroad).

 

ICC appeals the acquittal of the Ivory Coast’s former president



Prosecutors at the ICC have appealed the January 2019 ruling that acquitted the Ivory Coast’s ex-president, Laurent Gbagbo, and his deputy, Charles Blé Goudé, on charges of crimes against humanity. As discussed in our quarter one round-up, Gbagbo and Blé Goudé were charged in relation to their roles in the post 2010 election violence which left thousands dead or missing after Gbagbo refused to accept defeat to his opponent President Alassane Ouattara. Earlier this year, both were acquitted. Prosecutors now claim that the appeal will “demonstrate that the trial chamber committed legal and procedural errors which led to the acquittals of Mr Gbagbo and Mr Blé Goudé on all counts.” Gbagbo is currently on provisional release in Brussels and Blé Goudé is in the Netherlands, both under conditions pending the appeal.

 

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