April 2022

Monthly News Updates: International Criminal Court News Updates – April 2022

By: Claire Kaula, Junior Research Associate, PILPG-NL

The ICC is increasing collaboration and cooperation. The ICC President visited the UN and Guinea-Bissau, the ICC Prosecutor visited Ukraine and Nigeria, and the Office of the Prosecutor is joining Eurojust to collect information for the Situation in Ukraine. 

INTERNATIONAL CRIMINAL COURT

ICC President completes mission to United Nations in New York City

ICC President Judge Piotr Hofmański undertook a three-day mission to the United Nations Headquarters in New York City.  During his mission, Judge Hofmański met with many UN officials, discussed the ICC’s growing number of activities, and promoted universal support of the Rome Statute. [April 7, 2022]

EUROPE

Ukraine | Office of the Prosecutor partners with the Joint Investigation Team

The ICC Office of the Prosecutor announced its participation in the Joint Investigation Team with Ukraine, Lithuania, and Poland regarding international crimes.  This marks the first cooperation and collaboration between the ICC and Eurojust (a European Union Agency).  The partnership allows for better and more efficient ability to collect information needed for the investigation into the Situation in Ukraine. [April 25, 2022].

Ukraine | ICC Prosecutor visits Ukraine

Beginning on April 13, ICC Prosecutor Karim AA Khan visited Ukraine to strengthen cooperation and engagement in the investigation into the Situation in Ukraine.  While there, he met with Ukraine’s Prosecutor-General Iryna Venediktova, visited the crime scene in Bucha saying there are “reasonable grounds to believe that crimes within the jurisdiction of the ICC are being committed,” and met with survivors in Borodyanka. [April 16, 2022]

United Kingdom | UK contributes £70,000 to the Trust Fund for Victims

The United Kingdom of Great Britain and Northern Ireland made a £70,000 voluntary contribution to the Trust Fund for Victims (TFV).  This contribution will specifically be used for victims of conflict relating to sexual and gender-based violence.  The TFV welcomed the contribution, and the UK reaffirmed their strong support of the ICC. [April 4, 2022] 

THE AMERICAS

Venezuela | Venezuela requests deferral of investigation, ICC Prosecutor requests resumption

Venezuela requested that the ICC Office of the Prosecutor (OTP) defer its investigation into the Situation in Venezuela under Article 18(2) of the Rome Statute.  Venezuela claims they are investigating the Situation domestically.  However, ICC Prosecutor Karim AA Khan claims there is no new information demonstrating this.  The Prosecutor has notified and requested that the Pre-Trial Chamber authorizes the OTP to resume the investigation. [April 21, 2022]

AFRICA

Nigeria | ICC Prosecutor visits Nigeria

The ICC Prosecutor Karim AA Khan concluded his first official visit to Nigeria.  The visit was conducted to discuss the preliminary examination into the Situation in Nigeria completed in 2020.  At that time, former ICC Prosecutor Fatou Bensouda concluded there were reasonable grounds that crimes against humanity and war crimes occurred.  The visit established cooperation between Nigeria and the ICC for any future investigation. [April 22, 2022]

Republic of Guinea-Bissau | ICC President visits Guinea-Bissau

ICC President, Judge Piotr Hofmański visited Guinea-Bissau and met with Umaro Sissoco Embaló, President of Guinea-Bissau, and other government officials to encourage ratification of the Rome Statute.  Judge Hofmański also visited the European Union Delegation in Guinea-Bissau. [April 21, 2022]

Sudan | Mr. Abd-Al-Rahman’s trial opens

On April 5, the case The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman opened before ICC Trial Chamber I.  Mr. Abd-Al-Rahman was charged with 31 crimes against humanity and war crimes, and he pled not-guilty to all.  ICC Prosecutor Karim AA Khan and ICC Senior Trial Lawyer Julian Nicholls made opening statements, followed by remarks from the Legal Representatives of Victims.  Prosecutor Khan emphasized the gender-based violence and crimes committed against children in this case and the ICC’s purpose to provide justice by this trial. [April 5, 2022]

March 2022

Monthly News Updates: International Criminal Court – March 2022

By: Claire Kaula, Junior Research Associate, PILPG-NL

The ICC Office of the Prosecutor opened the investigation into the Situation in Ukraine and submitted an application for arrest warrants in the Situation in Georgia.  Additionally, in the Situation in the Central African Republic II, the authorities of the Republic of Chad surrendered Mr. Mokom to the ICC.

INTERNATIONAL CRIMINAL COURT

Release of the fifth edition of the ICC Chamber Manual

The ICC released the fifth edition of the ICC Chambers Practice Manual.  The new edition adds a new section on the transmission of the records of the proceedings and a new model to provide directions for trial conduct.  The manual also includes a revised procedure for admission of victims’ applications to participate in all stages of proceedings. [March 25, 2022]

ICC issues statement for International Women’s Day

The ICC commemorated International Women’s Day by releasing a statement supporting “global action to advance gender equality and empowerment of all women and girls.”  The ICC described what the Court itself is doing to further promote women’s rights.  This includes taking a gender perspective in ICC proceedings and improving gender equality in ICC operations by appointing a Focal Point for Gender and working on a draft Strategy on Gender Equality and Workplace Culture. [March 8, 2022]

ICC Deputy Prosecutors sworn in

On March 7, Nazhat Shameen Khan of Fiji and Mame Mandiaye Niang of Senegal were sworn in as the ICC’s new Deputy Prosecutors.  They began their nine year term on March 8, 2022.  ICC Prosecutor Karim A.A. Khan welcomed the two new Deputy Prosecutors and remarked that this was an important step in the ICC Office of the Prosecutor revitalization process. [March 7, 2022]

EUROPE

Ukraine & Poland | ICC Prosecutor visits Ukraine and Poland

ICC Prosecutor Karim A.A. Khan visited Ukraine and Poland on March 16 and 17 with the purpose of supporting the investigation into the Situation in Ukraine.  Prosecutor Khan met with Ukraine’s Foreign Affairs Minister, Dmytro Kuleba,  Prosecutor-General,d Iryna Venediktova, and virtually met Ukrainian President Volodymyr Zelenskye. Prosecutor Khan also met with individuals who fled due to the hostilities taking place in Ukraine.  In Prosecutor Khan’s statement on the visit, he emphasized the difficulty of this investigation and requested voluntary financial contributions from ICC States Parties. [March 16, 2022]

Ukraine | Investigation into the Situation in Ukraine opens

The investigation into the Situation in Ukraine opened on March 2 after 39 ICC States Parties referred the Situation to the Office of the Prosecutor.  As of March 11, 41 ICC States Parties had referred the Situation of Ukraine to the ICC.  The Office of the Prosecutor’s investigation team is currently conducting the investigation on the ground.  To aid the investigation, the Office established a portal where anyone with relevant information may contact the investigators. [March 11, 2022]

Georgia | Prosecutor requests three arrest warrants regarding the Situation in Georgia

ICC Prosecutor Karim A.A. Khan filed an application for three arrest warrants for the Russian officials Lieutenant General Mikhail Mayramovich Mindzaev, Gamlet Guchmazov, and David Georgiyevich Sanakoev.  The Office of the Prosecutor determined there are reasonable grounds to believe that these individuals committed war crimes in Georgia in August 2008 in the context of an international armed conflict.  In Prosecutor Khan’s announcement, he drew parallels between the patterns of conduct observed in the Situation in Georgia and those emerging in the preliminary examination into the Situation in Ukraine. [March 10, 2022]

AFRICA

Central African Republic | Mr. Mokom surrendered to the ICC

On March 14, authorities of the Republic of Chad surrendered Maxine Jeoffroy Eli Mokom Gawaka to the ICC. The Pre-Trial Chamber II issued the warrant for his arrest in 2018 after finding reasonable grounds to suspect that Mr. Mokom committed war crimes and crimes against humanity in the Central African Republic between 2013 to 2014. On March 22, Mr. Mokum made his first appearance before the ICC. [March 22, 2022]

March 2022

Monthly News Updates: Domestic Prosecution of International Crimes – March 2022

By: Pauline Pfaff, Junior Research Associate, PILPG-NL 

In March 2022,  public attention was largely focused on developments in the conflict in Ukraine. This is reflected in various initiatives to investigate potential Russian war crimes.  Developments in relation to the domestic prosecution of international crimes also occurred worldwide.

EUROPE

France | Prosecutor opens war preliminary inquiry into torture allegations against the head of Interpol

The French prosecutor specialized in anti-terror cases opened a preliminary probe into allegations against Emirati General Ahmed Nasser Al-Raisi. Al-Raisi became the head of Interpol in November 2021. The Gulf Centre for Human Rights filed a legal complaint against Al-Raisi, alleging that he tortured members of the opposition during his term as an official at the United Arab Emirates interior ministry. [March 24, 2022]

Bosnia and Herzegovina | Court finds former Bosnian Serb reservist policeman guilty of crimes against humanity

The Bosnian state court convicted former Bosnian Serb reservist policeman Predrag Bastah of crimes against humanity. The court found him guilty of killing 34 Bosniak civilian prisoners in Mracni Dol in 1992. [March 22, 2022]

Bosnia and Herzegovina | Supreme Court confirms war crimes verdict against Bosnian Serb Army Soldier

The Supreme Court of Bosnia and Herzegovina upheld the first-instance verdict against former Bosnian Serb Army soldier Mile Kokot. The court found Kokot guilty of physically abusing and robbing civilians in Sanski Most in 1992 and sentenced him to two years and five months imprisonment. [March 21, 2022]

France | Prosecutor opens war crimes probe into death of cameraman in Ukraine

The French prosecutor specialized in anti-terror cases announced a war crimes probe into the killing of Franco-Irish cameraman Pierre Zakrzewski.  Zakrzewski died outside Kyiv alongside his Ukrainian colleague Oleksandra Kuvshynova on Monday March 18, 2022. [March 18, 2022]

Poland/Germany/Spain/United Kingdom | Several war crimes documentation and investigation efforts in relation to the war in Ukraine

The Polish thinktank Pilecki Institute set up the Raphael Lemkin Centre for the Documentation of Russian Crimes in Ukraine to document evidence of war crimes during the current conflict in Ukraine. Several researchers have started interviewing Ukrainian refugees to gather testimony. The German Federal prosecutor as well as the Spanish public prosecutor further announced a probe into alleged Russian war crimes. Similar efforts to preserve information and evidence are present in other countries, including the United Kingdom and at international level. In February, PILPG launched the Ukraine Transitional Justice & Documentation portal, aimed at capacity-building for organizations and individuals seeking to document alleged international crimes in Ukraine. [March 6-8, 2022]

Germany | Court charges Gambian individual with crimes against humanity

The German federal public prosecutor charged Bai Lowe, a Gambian national, with crimes against humanity, murder, and attempted murder. Lowe is allegedly a former member of the “Junglers.” The special army unit carried out assassinations on the orders of former Gambian leader Yahya Jammeh. The charged acts include the 2004 murder of Deyda Hydara, an AFP news agency journalist. [March 3, 2022]  

AFRICA

Ethiopia | Ethiopian Human Rights Commission releases report documenting war crimes and crimes against humanity in Tigray region

The independent Ethiopian Human Rights Commission published a report documenting 750 civilian casualties since the start of the Tigray People’s Liberation Front’s offensive in the Afar and Amhara region last July. The report includes accounts of acts that may constitute war crimes and crimes against humanity, including sexual and gender-based crimes, torture, looting, and enforced disappearances. It names both rebels and government forces as perpetrators. [March 11, 2022]

Gambia | Truth Commission submits recommendations on amnesty applications

Gambia’s Truth, Reconciliation and Reparations Commission submitted its recommendations to the government pertaining to 25 applications for amnesty. The Commission recommended to dismiss eleven applications, deny eight, and grant six. Among those approved is the application of Sanna Sabally, the second-in-command leader of the former military junta. The government’s decision on the recommendations is scheduled for the end of May. [March 21, 2022]

THE AMERICAS

Colombia | Peace tribunal to open three new cases

Colombia’s Special Jurisdiction of Peace announced the opening of three new cases. The tribunal will focus on armed actors, deviating from its previous approach centered around symbolic crimes. Victim communities had mixed reactions to this strategic shift due to concerns that this new approach may not be able to adequately capture their experiences. [March 14, 2022]

OCEANIA

Australia | Myanmar’s National Unity Government prepares submissions to prompt war crimes probe

Myanmar’s National Unity Government, consisting of government officials exiled following the 2021 coup d’état in Myanmar, announced it was preparing war crimes cases against several members of the military junta presently in power in Myanmar. It further expressed its intention to submit the files to the Australian authorities to initiate investigations based on the concept of universal jurisdiction. [March 22, 2022]

Can US technology companies continue to operate in the European Union? A reflection on the Irish Data Protection Commission's preliminary decision

By: Guillermo Ferrer Hernáez, Junior Research Associate, PILPG-NL

In its mission to protect the rights of its citizens, the European Union (EU) adopted a far-reaching piece of data legislation, the General Data Protection Regulation (GDPR), which sets new standards for protecting the data of EU citizens. This piece of legislation, claimed to be the most robust privacy policy globally, allows EU citizens and individuals living in the EU and the European Economic Area territory to limit the collection of their personal information and control which information is shared with companies. GDPR guidelines require that the state receiving the data offers the same level of protection as the state from which the data is collected. Since the GDPR’s adoption, the Court of Justice of the European Union (CJEU) has ruled on the incompatibility of certain business practices regarding data transfers, including transfers between the US and the EU and the use of Standard Contractual Clauses.  

The battle to protect European citizens' rights during data transfers will lead to further significant developments, with the EU as the leading actor, in the upcoming months. This blog will discuss the consequences of the current GDPR and the Irish Data Protection Commission’s (IDPC) preliminary decision for the future of technology companies in the EU.

The Schrems II case

In July 2020, the CJEU issued its judgment in the Schrems II case, through which it invalidated the existing data transfer arrangement between the US and EU, known as the Privacy Shield, on the grounds that the EU could not ascertain that the data of EU citizens would be safe from US government surveillance once this data is transferred to US data collection centers. Under US laws, personal data protection may be subjected to controls to the extent necessary to meet national security, public interest, or law enforcement requirements. The CJEU found that US mass surveillance infringes several rights recognized under the Charter of Fundamental Rights of the European Union (CFR), such as the protection of personal data identified under Article 8. Therefore, the CJEU, in July 2020, concluded that the Privacy Shield agreement could not be used for the transfer of data. 

The use of Standard Contractual Clauses

Since the CJEU's verdict, several US technology companies have relied on a different legal mechanism, known as "Standard Contractual Clauses" (SCCs) to transfer EU users' data to the US. These mechanisms are pre-approved terms and conditions for extraterritorial data transfers published by the EU Commission and include several guidelines provided in the GDPR. Even if SCCs are considered to be compliant with the GDPR, technology companies are now required to verify on a case-by-case basis if the personal data transferred through with the use of these SCCs will be adequately protected in the destination state. According to the CJEU’s verdict, these companies now have the obligation of  ensuring that the data protection law of the destination state offers a similar level of protection as established within the GDPR. The need for this additional control emerged after the CJEU found that supervisory authorities of third states are not bound by these contractual clauses. This requirement has primarily limited the action of technology companies; moreover, a future decision by the IDPC could restrict even more their activities, even putting them to an end.

IDPC's preliminary decision

A month after the Schrems II judgment, the IDPC, the EU's leading regulator of technology companies, preliminarily concluded that Meta Platforms Ireland's use of SCCs violates the GDPR's provisions and proposed that these transfers of user data be suspended. According to the IDPC, the US does not grant any rights to EU data subjects before the courts against US authorities, directly violating the right to an effective remedy under Article 47 of the CFR.

The IDPC gave Meta until March 22, 2022, to respond to its preliminary decision and will issue its final decision in the first half of 2022. If the IDPC ultimately decides that the use of SCCs does not comply with the GDPR, this would eliminate any transfer of data between EU and US companies, leaving technology companies no other option than to withdraw their services from the EU. In light of this possibility, the EU Commission and the US Government started negotiations to replace the former Privacy Shield agreement in line with the CJEU's verdict.

The future of the technology companies in the EU

The European Union's institutions plan to adopt several pieces of legislation in the upcoming year, such as the Digital Markets Act, to limit the power of technology companies and protect the fundamental rights of EU citizens. On March 25, 2022 the EU Commission President announced the EU's “agreement in principle” on a data transfer deal with the US. While this “agreement in principle” is, in fact, a preliminary agreement, all indications are that the final deal will align with the new legislation. Furthermore, the EU has already noted that the final agreement will be in line with the CJEU case law on data transfers, requiring any third state to provide a minimum level of data protection. The fact that the IDPC may override the use of SCCs has also contributed to the content of this future agreement, including the possibility for European citizens to go to US courts if US companies violate their privacy rights under EU law. A new movement to stricter regulation on privacy issues seems to be underway, leaving a narrower space for technology companies to operate without any limits.

Justice Has No Expiry Date - The Case of the Maya Achi Women in Guatemala

By: Lilian Srour, Junior Research Associate, PILPG-NL

 Guatemala’s recent history, and specifically the period between 1960 and 1996, is marked by a long and violent internal armed conflict, within which the rights of the indigenous Mayan population have systematically been violated. The Historical Clarification Commission was established in 1994 to determine the human rights violations that took place during the war and to clarify the history of the events that ensued. It concluded that 80% of the casualties of the conflict belonged to indigenous communities and 93% of the acts were attributable to the authorities. 

Recently, on January 24, 2022, a High Risk Court in Guatemala sentenced five ex-paramilitary Civil Self-Defense Patrols to 30 years in prison each for the commission of crimes against humanity in the form of sexual violence against the Maya Achi indigenous women in the early 1980s.  This short piece considers how elements of the case align with the aims of international and regional human rights law frameworks, as well as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). While non-binding, the UNDRIP is considered the most comprehensive instrument outlining the rights of indigenous peoples in international law, setting minimum standards for the recognition, promotion, and protection of these rights. 

The right of access to justice 

 The right of access to justice and an effective remedy for human rights violations is enshrined in numerous instruments under international law, such as Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) and Article 8 of the Universal Declaration of Human Rights (UDHR). This right requires that perpetrators be brought to justice whilst also providing appropriate reparations for victims. Article 40 of the UNDRIP affirms the right of indigenous peoples to access justice, namely through “access to and prompt decision through just and fair procedures […] as well as to effective remedies for all infringements of their individual and collective rights.” As noted in a study by the Expert Mechanism on the Rights of Indigenous Peoples, elements of access to justice necessarily “include the right to an effective remedy, procedural fairness, and the need for States to take positive measures to enable access to justice.” At the regional level, the Inter-American Court of Human Rights has reaffirmed the obligation of governments to guarantee the right to judicial protection of indigenous peoples and to consider the particularities of their economic and social characteristics, as well as their special vulnerability and their values and customs.

Persevering in the fight for justice

 Despite the legal framework and previous efforts, the United Nations Assistant Secretary-General for Human Rights has commented that indigenous peoples continue to face structural racism and social exclusion, arguably undermining their fundamental rights, including the right of access to justice. In this environment, the Maya Achi women overcame many barriers to access justice, including economic barriers, discrimination, a lack of adequate protection, and delays in the administration of justice. When the case was first filed, the assistant prosecutor questioned the credibility of the survivors, asking why they chose to come forward 40 years later, ultimately expressing that these cases should not be investigated. Furthermore, when the plaintiffs successfully petitioned the pre-trial judge to hear their testimonies and admit them as evidence in 2016, this was done in a manner that has been described as traumatizing for the victims. This is because they were far from home and their communities in Guatemala City, an unfamiliar environment, where they were held alone in a room for hours prior to giving testimony. These circumstances do not consider the particular vulnerability of indigenous peoples and the economic barriers incurred due to traveling costs.

Another development hindering access to justice ensued when Judge Dominguez dismissed the central evidence that identified the perpetrators – the testimonies of the women – based on what has been described as a technicality. She noted that the document within which the victims’ lawyers requested permission to interview the women in the offices of a law firm in Rabinal, rather than the office of the Attorney General, was dated after the women had given their testimonies. Judge Dominguez also pointed to the Attorney General for not taking the women’s testimonies at their offices, even though it is common practice for prosecutors to take testimony in places they deem appropriate. The victims’ lawyer, Haydeé Valey, explained that the women were afraid to be seen going into the Attorney General’s Office in Rabinal and emphasized that the steps taken were to protect witnesses from reprisals and revictimization. Notwithstanding, those detained were released, and it was not long before they went on to threaten the women. In terms of an effective remedy and the protection of the victims, these developments do not consider their special vulnerability, and do not further their right to effective access to justice and appropriate remedies and protections. 

The plaintiffs successfully moved to recuse the judge, whom they accused of displaying anti-indigenous bias. The recusal motion noted that the decision to dismiss the charges against the accused was arbitrary and left the victims in vulnerable circumstances because their aggressors were set free without taking any safety measures to protect the women from reprisals. Ultimately, the  case was assigned to Judge Miguel Ángel Gálvez of High Risk Court B and the trial began on January 5, 2022, leading to the conviction of the accused several weeks later.

Conclusion

 This case highlights two notions. First, that justice has no expiry date. In other words, the courts remain a venue for the conviction of perpetrators of international crimes, even if several decades have passed. Second, this case represents the importance of effective access to justice for indigenous peoples, especially those affected by the internal conflict in Guatemala. As the Special Rapporteur has previously noted, the disregard for the adverse impact of violations perpetrated against indigenous women negatively affects their efforts to fight for their rights and further contributes to cyclical negative patterns that perpetuate further violations against them. This also undermines the goals of the UNDRIP, and human rights law more generally, which requires that indigenous peoples are to be treated equally and should be protected. This is particularly the case because, as emphasized by the Special Rapporteur, justice is an essential component of truth, reparation and reconciliation processes.

Whilst this trial has been said to deliver “incomplete justice,” this case and the perseverance of the plaintiffs and their representatives has been welcomed by many. Commentators have specifically emphasized the importance of securing the rights of indigenous peoples and facilitating access to justice, to allow for the respect of their fundamental rights.