International Criminal Law Roundup - Q4 2019

17 January 2020

This quarterly international criminal law update provides a summary of cross section news stories in the period October 2019 - December 2019. Please also see our round-up from Q1 2019Q2 2019 and Q3 2019.


October

Germany charges two Syrians with crimes against humanity

 

German prosecutors have charged two alleged members of Syria’s secret service with crimes against humanity that include torture, murder and multiple sexual assaults against opposition activists. Anwar Raslan and Eyad al-Gharib were arrested in February 2019 in Berlin under Germany’s universal jurisdiction laws, which allow the county to prosecute people for crimes against humanity committed anywhere in the world.

It is alleged that the men were members of Syria's General Intelligence Directorate. Raslan, who according to German prosecutors led the branch’s investigative team, is charged with the torture of at least 4,000 people during 2011-2012, resulting in 58 deaths. Al-Gharib has been charged with the torture of at least 30 people. The trial, which is expected to start next year, will be the first worldwide to examine allegations of state torture by suspected members of President Bashar al-Assad’s feared security service.

 

CIA-backed Afghan forces conducted 'war crimes'

 

According to a Human Rights Watch report published in October, Afghan strike forces backed by the CIA have committed abuses amounting to atrocities and possible war crimes. The alleged crimes include extrajudicial killings, forced disappearances and attacks on healthcare facilities. The report documents 14 cases in which CIA-backed Afghan strike forces committed serious abuses, between late 2017 and mid-2019, which HRW say are illustrative of a wider pattern of serious violations. The findings of the report are disputed by the CIA which claims that its covert operations in Afghanistan have been carried out legally.

 

Hong Kong formally scraps extradition bill

 

The controversial extradition bill that sparked months of violent protests has formally been withdrawn. This follows one of the most violent days on 1 October 2019, when an 18 year old protester was shot and injured with a live bullet and the police made a total of 269 arrests, which was more than on any other day since the protests began. Hong Kong also released the murder suspect who sparked the protests after 18 months in prison.

 

petition to investigate Saudi Crown Prince for crimes against humanity sent to icc

 

Two US attorneys have petitioned to the ICC for an investigation into Saudi Crown Prince Mohammed bin Salman for the alleged kidnapping, torture and assassination of journalist Jamal Khashoggi in October 2018, as well as for other crimes against humanity. The CIA concluded bin Salman ordered Khashoggi’s assassination, and a UN report said Saudi Arabia was responsible for the “deliberate, premeditated execution”, despite the Saudi government’s denial of his involvement.

 

Bosnian court jails ex-soldier for war crimes

 

A Bosnian court has sentenced Radomir Susnjar, a former Serbian solider, to 20 years in prison for committing war crimes against Bosniak civilians during the Bosnian War. Susnjar along with his accomplices, Milan Lukic (who received life imprisonment) and Sredoje Lukic (who was sentenced to 27 years in prison) raided a house where Bosniak civilians were held prisoners, and set it on fire. A total of 57 people, including children, burned alive in the raided house. Susnjar was extradited to Bosnia and Herzegovina in June 2018 after he was arrested in France in 2014.

 

November

Supreme court clarifies interpretation of torture legislation

 

In its November decision, the UK Supreme Court confirmed that members of non-State groups may be prosecuted for crimes of torture under UK and international law. In a redacted judgment, the Court found that the correct interpretation of the term “person acting in an official capacity” includes a person who acts (or purports to act) for organisations exercising functions normally belonging to governments over a civilian population. The decision means that those acting on behalf of non-State armed groups, such as Islamic State or the Taliban, could be found to have committed torture, despite the group not holding governmental power at the time.

 

Swedish prosecutors investigate Iraqi minister for crimes against humanity

 

An Iraqi minster, identified by Swedish media as Defence Minister Najah al-Shammari, is to be investigated by the Swedish Prosecution Office following complaints received. It is said that he is suspected of crimes against humanity but the details of the alleged crimes have not yet been made public. Al-Shammari, a dual Iraqi and Swedish citizen, was previously a Major General in the Iraqi Army and served Saddam Hussein. The investigation is to be conducted by Sweden’s National Unit for International and Organised Crime and is said to be at a “very early stage”.

 

UK Government and military accused of war crimes cover-up

 

A joint investigation by The Sunday Times and BBC Panorama reported that evidence of war crimes committed by British forces during the war in Iraq and Afghanistan had been uncovered by investigators. The revelations, contained in a programme which aired in November, follow the closure of the Iraq Historic Allegations Team (IHAT), which investigated alleged war crimes committed by British troops during the occupation of Iraq, and Operation Northmoor, which investigated alleged war crimes in Afghanistan. Detectives who worked for the investigative bodies told news agencies that they had found credible evidence of war crimes suggesting a cover up on the part of the British state. The ICC’s Office of Prosecutor has said that it will “independently assess” the findings.

 

French court dismisses charges against Lafarge

 

Charges brought against the construction material manufacturer Lafarge have been dismissed by the Paris Court of Appeal in November. Accusations of complicity in crimes against humanity in Syria had arisen from steps taken by the company to keep on of its cement plants in Syria running for more than three years after civil war broke out in 2011. The company was accused of making protection payments to Islamic State to allow it to keep it operating in areas controlled by the group. Lafarge still faces charges financing of terrorists, endangerment of people's lives and violation of sanctions which are still under investigation by French judges.

 

ntaganda sentenced to 30 years by icc

 

The Congolese rebel leader, Bosco Ntaganda, was sentenced to 30 years in prison by the ICC for war crimes and crimes against humanity in November. He was found guilty of 18 counts of war crimes and crimes against humanity including murder, rape, sexual slavery, persecution and enlisting child soldiers. The case involved a number of firsts for the court. Ntaganda is the first suspect ever to voluntarily surrender to the ICC and the conviction for sexual slavery is the first in the Court’s history.

 

ICC judges authorise opening of an investigation into the situation in Bangladesh / Myanmar

 

The Prosecutor’s request, submitted in July 2019 (see International Criminal Law Roundup - Q3 2019), for authorisation to open an investigation into alleged crimes of humanity committed against the Rohingya people was approved by the ICC in November. Having received the views of hundreds of thousands of alleged victims, all of which unanimously insist that they want the Court to investigate, the ICC approved the Prosecutor’s request. In approving the request the Court found a reasonable basis to believe that acts of violence which could qualify as crimes against humanity may have been committed across the Myanmar-Bangladesh border. By focusing on offences committed across the border issues created by Myanmar’s non-membership of the ICC may be obviated.

In December, Aung San Suu Kyi defended Myanmar’s government against accusations of genocide at the International Court of Justice.

 

ICC Appeals chamber confirms re-sentencing decision

 

Jean-Pierre Bemba Gombo and his co-appellants have lost their appeal against convictions for witness tampering. Although Bemba was acquitted of charges of war crimes and crimes against humanity in June 2018 he, along with four others, were found guilty of corruptly influencing witnesses and soliciting false testimony in the substantive proceedings in 2016. Bemba and two of the four appealed their sentences in 2017 resulting in an eventual re-sentence in September 2018. The re-sentences were appealed, however, in November 2019 the Appeals Chamber of the ICC rejected the grounds of appeal and upheld the re-sentencing decision.

 

Syrian refugees ask norway police to investigate war crimes

 

In the latest effort of its kind, Syrian refugees in Norway filed statements detailing their experiences of torture, extrajudicial killings and other forms of abuse suffered in Syrian prisons in November. As it is not a member of the ICC and efforts to establish a special tribunal for Syria have failed, proceedings brought to hold potential perpetrators of war crimes in Syria to account have no obvious judicial home. In that vacuum, lawyers are attempting to use national laws in countries where Syrian refugees have settled, or where high-ranking Syrian officials have connections, to bring domestic proceedings against those accused of war crimes.

 

Trump issues pardons to war crimes cases

 

In November President Trump intervened in three cases by issuing full pardons to two soldiers and reversing disciplinary action against a Navy SEAL. Each of the service men had been accused (and one convicted) of murders committed in Iraq and Afghanistan during the US armed forces activities there. Trump’s move came despite opposition from military justice experts and some senior Pentagon officials who say that the move will undermine the military justice system and weaken U.S. credibility abroad.

 

December

icc hears appeal to open war crimes investigation of the conflict in Afghanistan

 

In the first week of December, the ICC Appeals Chamber heard submissions on whether to open an investigation into alleged war and crimes against humanity related to the armed conflict in Afghanistan, including crimes committed by the CIA and the US military.  It was the first time the Appeals Chamber has been called upon to review a refusal to authorise an Article 15 proprio motu request by the ICC Prosecutor to conduct an investigation.  The application followed a decision by Pre-trial Chamber in April 2019 to reject the Prosecutor’s request to open an investigation (see more in our previous blog here). Just Security have published an analysis of the hearing here.

 

starvation in civil war is made a crime

 

During the 18th Assembly of State Parties to the Rome Statute of the ICC, and following a unanimous vote, the Rome Statute was amended to include the crime of starving civilians during non-international armed conflicts. Starvation during international armed conflict was already a crime covered by the Rome Statute, but the same action during a non-international armed conflict, such as a civil war, was not. 

 

ICC confirms charges against Car suspects

 

On 11 December 2019, the ICC confirmed the war crimes and crimes against humanity charges against Alfred Yekatom and Patrice-Edouard Ngaïssona. The charges relate to armed conflict in the Central African Republic between September 2013 and December 2014, where it is alleged that there was a widespread attack against the Muslim civilian population. Prosecutors allege that Ngaïssona was one of the most senior leaders of the Christian-dominated militias and that Yekatom was a commander. This matter will now progress to trial.

 

torture charges dismissed in universal jurisdiction case

 

Mr Justice Sweeney dismissed all torture charges against Agnes Taylor, the ex-wife of former Liberian president Charles Taylor, in what was the third universal jurisdiction case to be tried before the English courts.  Mr Justice Sweeney said that there was a lack of evidence that the Taylor regime had governmental control over the areas where the alleged crimes took place. Ms Taylor was charged in 2017 of offences alleged to have occurred during the country’s civil war. The trial had been due to start in January 2020.  See more in our blog here.

 

icc progresses investigation of the situation in Palestine

 

The Chief Prosecutor of the ICC announced that, following a preliminary examination into the situation in Palestine, her office has concluded that the criteria have been met for an investigation to be formally opened. In her announcement, she explained that authorisation from the Pre-Trial Chamber is not required, as the investigation originated from a referral from the State of Palestine. However, given the “unique and highly contested legal and factual issues attaching to this situation”, she deemed it necessary to request a jurisdictional ruling on the scope of the territorial jurisdiction of the ICC from the Pre-Trial Chamber.

 

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