Go On! “Challenges for Women in the International Justice System”

The SNF-funded project Diversity on the International Bench: Building Legitimacy for International Courts and Tribunals”, led by Professors Neus Torbisco-Casals and Andrew Clapham (Graduate Institute, Geneva), continues to host its monthly public lecture series on “Women’s Voices in the International Judiciary”. The series aims to reflect on the lack of diversity in the international judiciary —especially gender diversity—, which raises concerns not just in terms of descriptive representation and symbolic self-identification, but also regarding unconscious bias and systemic privileging of specific ideologies or positions in the process of adjudication.

The eighth lecture will welcome Hilary Charlesworth, Judge of the International Court of Justice, the first Australian woman elected to the court and the fifth woman ever elected. The lecture will take place on May 30th, 2020 on Zoom at 6:30PM (CEST). To register for this event, click here.

Prosecution of Environmental War Crimes at the ICC: Exalted Thresholds

This post traces the history of Article 8(2)(b)(iv) (“Article”) of the Rome Statute (“Statute”) – the codification of the first international environmental war crime. The author argues that the Article’s exacting standard renders it toothless.

Countries today are in agreement that the environment is a ‘global common’; a resource shared by one and all, not limited by sovereign boundaries. Time and again, the international community has entered into agreements to motivate member state(s) to protect and reinvigorate the environment. For instance the Paris Agreement, Kyoto Protocol and the UN Framework Convention on Climate Change are all aspirational frameworks pushing states to rethink their relationship with the environment. However, there are no real legal ramifications for the non-performance of these agreements, and their observance has largely been left open to the whims of politics and diplomacy. Moreover, these agreements are limited to state responsibility and do not percolate down to actions of individuals or other non-state actors.

International frameworks with legal consequences, such as the AP-1 to the Geneva Convention, (“AP-1”) are traditional in nature. These frameworks recognize international responsibility of states for ‘environmental destruction’ only in the backdrop of internationally recognized crimes perpetrated against ‘mankind’, such as genocide, crimes against humanity, or recently, crimes of aggression. International conventions such as the UN Convention on the Prohibition of Military or Any Other Hostile use of Environmental Modification Techniques, 1976 (“ENMOD”), removed the need to situate environmental destruction in the backdrop of a concomitant international crime. Notwithstanding, the thrust of ENMOD depends on “damage, destruction or injury” caused to the state. The terms “damage, destruction or injury” have canonically been interpreted in an anthropocentric form, meaning consequent damage to the civilian population.

Eclipsed by climate change and environmental destruction, with rising temperatures and sinking cities, mankind today has been brought face to face with a harsh reality. The environment, as a victim ofcorporate negligence, wanton human behaviour, and silent sufferers of armed conflict, has borne countless losses. The repercussions of such prolonged environmental neglect and degradation are both far ranging and immutable. Recognizing the need for inter-generational equity; the international community through its collective duty to preserve and secure the environment conferred it with independent legal protection. With the Statute in force, and the establishment of the ICC in 2002, the world saw the advent of the first ecocentric war crime.

Ingredients of Article 8(2)(b)(iv)

Successful prosecution under this Article requires that conjunctive benchmarks of “widespread, long term, and severe” damage to the environment be met in the context of an international armed conflict. The meanings of these terms are not defined within this Article, the Statute, or in secondary sources of interpretation as per the Vienna Convention on the Law of Treaties, 1969. The lack of a definition is exacerbated by Article 22 of the Statute which states that “ambiguity” should be interpreted favourably towards the accused.

The preparatory material of the Statute refers heavily to ENMOD and AP-1. Under these conventions the term “widespread” has a geographical bearing, and typically a damage of 100 square kilometres or upwards satisfies the element of “widespread” damage.

The term “long-term”, as the ordinary meaning suggests, has a temporal connotation. It refers to the continued effects of an attack. “Long-term” under AP-1 means negative environmental effects lasting a minimum of 10 years. Given the difficulty in evaluating lasting environmental damage at the time of the attack, it is likely that the drafters of the Statute viewed the quantum of 10 years as a range for understanding the term “long-term” and not a minimum threshold. Environmental impact assessments need to be carried out to gauge long-term effects of an attack. These involve significant costs and questionable efficacy.

Similarly one may look to AP-1 to understand the term “severe”, which refers to the potency of damage on the human and non-human environment. This interpretation takes us back to an anthropocentric approach; an otherwise progressive provision once again ties itself to civilian damage as a crucial factor in affixing international criminal responsibility.

Mens Rea and Military Objectives

The environment has often been the subject of wartime military attack, be it the scorched earth policy of the Napoleonic Wars to the use of  “Agent Orange” during the Vietnam War. The Article seeks to recognize the military’s strategic needs in conducting an offensive against the environment; it rationalizes that the damage being “widespread, long-term and severe” should also be “clearly excessive to the concrete and direct overall military advantage.” The Office of the Prosecutor, ICC opined that “clearly excessive” does not pertain to instances of collateral damage, which is purely a function of the proximity between civilians and military targets. Similarly in Prosecutor v Milan Martic, the ICTY held that any ensuing harm to civilian objects, such as the environment, cannot be justified in the “absence of closeness” between such objects and the legitimate military target.

Additionally, liability under this Article is confined to wrongdoings by military operatives in leadership positions. It provides a safe harbour to individuals without decision making powers in the military chain of command. “Leadership positions” are determined on the basis of an individuals’ say on the nature, timing, type, extent, and the general scope of the military attack. The military advantage is also qualified by the terms “concrete and direct”. The International Committee of the Red Cross has reflected that these terms do not justify “barely perceptible” military advantages. A military officer ordering an attack is required to demonstrate the potential military advantage and its nexus with the environmental attack.

Conclusion

Environmental crimes had been codified prior to 2002 under several international treaties in an anthropocentric fashion. This approach detracted from the damage caused to the environment, an object worthy of protection in and of itself. While the Article is certainly a harbinger in delinking environmental protection and damage from civilian harms, its exacting standard renders it toothless.      

Unsurprisingly, we are yet to see a single prosecution or investigation launched under this provision. Particularly in the context of gross environmental damage during recent day international armed conflicts, such as the Syrian War and the Ukraine War which are plagued by indiscriminate bombing, non-differentiation between military and civilian objects, and chemical warfare, which has the potential to pollute the lands and waterways of the country for generations to come. The ICC, as the only international court equipped to prosecute and convict individuals for crimes of international magnitude is wanting in realizing its potential.

Introducing Ananya Mukherjee

It is our pleasure to introduce our new contributor Ananya Mukherjee. Ananya is an India qualified lawyer and a graduate from the West Bengal National University of Juridical Sciences. She has 4 years of professional work experience working on corporate laws, M&A, PE & VC deals in India, and currently works at the Indian Institute for Human Settlements on higher education policy in India. She is actively interested in fields of international criminal law, international environmental law, human rights and policy. She is also a trained negotiator and mediator from ADR Group UK and an incoming MPA student at Columbia University, New York. Previously she was a Public Policy Scholar with the Global Governance Initiative and enjoys spending her weekends working with leading Indian NGO’s such as Udayan Care towards helping young women achieve their professional potential. Outside of the work space, she enjoys painting, is a trained Scuba Diver and mentors young lawyers in India in navigating the domestic and international legal and policy space.

Heartfelt welcome!

The Disappeared: Ensuring Future Investigations Recognise Enforced Disappearances in Ukraine (Part II)

While the full scale of the enforced disappearances in Ukraine are currently unknown, available information indicates that Russian forces have systematically abducted active and outspoken community leaders, journalists, and activists. While the first part of this post provided an overview of the legal framework of enforced disappearances both internationally and domestically, this part argues that there is at least a reasonable basis to believe that each of the elements of the crime against humanity (Article 7(1)(i) of the Rome Statute) are engaged. 

First, the enforced disappearances have clearly been committed as part of a widespread or systematic attack directed against the civilian population. The details of Russia’s invasion of Ukraine and the subsequent attacks against civilians, encompassing numerous crimes against humanity, have been well documented elsewhere.    

Second, there is evidence that numerous Ukrainian journalists (e.g., herehere, and here), activists (e.g., here and here) and local leaders, usually mayors (e.g., herehere, and here) have been arrested, detained or abducted (element 1.a/2.b – which includes “any form of deprivation of liberty of a person against his or her will” (see e.g., Burundi Decision, para. 118)) and that this has been followed by a refusal to give information on their fate or whereabouts (element 1.b/2.a). Such refusal will include situations in which there is an outright denial of, or misleading information given about, the deprivation of liberty (see e.g., Burundi Decision, para. 118). 

In the Zaporizhzhia region, multiple leaders have been abducted and their fate and whereabouts remain unknown. For instance, on 13 March 2022, the house of Serhii Pryima (head of the Melitopol district council of the Zaporizhzhia region) was searched by Russian law enforcement agents who arrested him. On the same day, Yevhenii Matveev (mayor of Dniprorudne) was abducted by Russian forces. There is no information about the fate or whereabouts of either of these men. 

In the Kharkiv region, several members of the local council have disappeared. On 1 March 2022, during a pro-Ukrainian rally, Russian servicemen summoned Kupyansk city council member, Mykola Maslii, for a conversation during which they used smoke bombs in order to prevent witnesses seeing as they abducted him. His whereabouts are unknown to date. On 21 March, Russian forces abducted Mykola Sikalenko (head of the Tsyrkunivska community) from his home and took him in an unknown direction. Although Ukrainian law enforcement are trying to locate Sikalenko, Russian forces have provided no information about his fate or whereabouts. 

In the Kherson region, at least 17 journalists, activists and Ukrainian veterans have disappeared. For instance, local activist Serhii Tsyhipa from Nova Kakhovka has been missing since 12 March 2022. According to his wife, eyewitnesses reported that Tsyhipa was arrested at the Russian checkpoint, possibly to prevent him from spreading pro-Ukrainian information. Another activist and Ukrainian veteran, Maksym Nehrov, disappeared at a Russian checkpoint under similar circumstances on 15 March. 

Third, the systematic nature of the enforced disappearances in Ukraine – in particular areas and targeting a specific profile of the victims (i.e., leaders, journalists and activists) – allows for an inference that the perpetrators would have been aware either that the deprivation of liberty would be followed by a refusal to provide information in the ordinary course of events, or that the refusal was preceded or accompanied by the deprivation of liberty (element 3).

Fourth, both the deprivations of liberty and the refusals to provide information have been carried out by, or with the authorisation, support, or acquiescence of the Russian state (elements 4 and 5). These acts take place in territories controlled by Russian forces after the Ukrainian troops have withdrawn. In most cases described above, the initial abductions are conducted by Russian military or law enforcement agencies. At least two abductions in the Kherson region occurred at a Russian checkpoint. Some of the victims have been released by the Russian forces in exchange for the captured Russian soldiers or after they film a statement in support of Russia.

Fifth and finally, the ICC Elements require that the perpetrator intended to remove such person or person from the protection of the law for a prolonged period of time (element 6). This element substantially differs from the definition of enforced disappearance in human rights law and imposes an additional burden which may be difficult to prove in practice (see ICJ, pp. 17-18). The Working Group on Enforced Disappearances has recommended (at paragraph 15) that “the definition of enforced disappearance provided for by the Rome Statute be interpreted by the national authorities in line with the more adequate definition provided for in Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance.” Therefore, the inclusion of these elements is not required in any future domestic prosecution of enforced disappearance in Ukraine, whether under current Article 1461 of the CCU, or Article 4421(1)(6) of the CCU (if, and when, Draft Bill 2689 or 7290 enter into force).

To begin with, while human right law includes the material element of the victim being placed outside the protection of the law (by virtue of the deprivation of liberty and refusal to provide information) (ICPPED, Article 2), the ICC Elements include the requirement that the perpetrator intended this consequence. This includes situations in which a victim is prevented from accessing judicial assistance or legal procedures (Burundi Decision, para.120). Certain circumstances surrounding the deprivation of liberty may reveal this intent such as abduction in unmarked cars with tinted windows, detention in desolate areas or unofficial prisons, failing to register detainees’ names, failure to allow prompt access to lawyers, and the absence of arrest warrants or any criminal charges. 

In Ukraine, there is evidence – at least – that the victims were placed outside the protection of the law.  It is likely an intent on the part of the perpetrator could be inferred from these circumstances. In general, as described above, the victims have been abducted and taken to unknown locations, without warrants of arrest or any criminal charges, usually in retaliation for their pro-Ukrainian position and/or as a mean of silencing the dissent. They have often been subjected to torture or inhumane treatment while detained. The surrounding circumstances of their abduction also indicates a clear intention to remove them from the protection of the law. For example: according to the Mayor’s Office (and corroborated by CCTV footage), members of the Russian military placed a bag over Ivan Fedorov’s (the mayor of Melitpol) head, forced him out the office into a car and drove him away in an unknown direction. Whilst detained Fedorov was torturedinto declaring his loyalty to the Russian forces. Similarly, as described above, Russian forces used smoke bombs to conceal the abduction on Mykola Maslii. 

In addition, unlike human rights law which imposes no temporal element (see e.g., A/HRC/39/46, para. 143; Yrusta v. Argentinawhich found enforced disappearance occurred where the victim’s whereabouts was unknown for seven days), the Rome Statute requires the victims removal from the protection of the law be for a “prolonged period of time”. Although the precise period that will satisfy this requirement has not been authoritatively clarified by the ICC, it has held that several months or years would fulfil this element (Burundi Decision, para.120). A broad interpretation of this element by the ICC would ensure victims who have been disappeared for even a short period of time can benefit from the protection of the law. 

In Ukraine, there have been some short-term disappearances ranging from several hours in the case of three female journalists arrested in Melitopol, Zaporizhzhia region to eight days in case of Oleh Baturyn, a journalist from Kakhovka, Kherson region. Although it is currently unclear whether these would be included within the protection of Article 7(1)(i) of the Rome Statute, they will certainly fall within the jurisdiction of Ukrainian courts interpreting the crime in line within human rights jurisprudence. In addition, the whereabouts of many unknown and their removal from the protection of the law continues. It is not known how long their disappearances will last. 

Conclusion

In sum, there is clear evidence that Russia has systematically used enforced disappearances against prominent Ukrainians – particularly, journalists, activists and local leaders – as a method of crushing opposition to its invasion in the areas under its control. While the ICC Elements of Crimes outline a complex set of elements for the crime against humanity of enforced disappearance, practitioners should not be discouraged from fully investigating and prosecuting this crime to adequately reflect the harm encountered by the victims and their families. Domestic prosecutions – whether as ordinary crimes under current Article 146 of the CCU or in the future as crimes against humanity under Draft Bill 2689 Article 4421(1)(6) – may utilise the human rights definition of enforced disappearances enabling a broader scope of conduct to fall within their protection. 

The Disappeared: Ensuring Future Investigations Recognise Enforced Disappearances in Ukraine (Part 1)

Since the full-scale Russian invasion in Ukraine on 24 February 2022, multiple prominent Ukrainians, including journalists, activists and local leaders have been abducted and forcibly disappeared at the hands of the invading Russian forces. 

This two-part post will advocate for this conduct to be investigated and prosecuted using all available avenues both internationally and domestically. The first part will describe the overall legal framework of enforced disappearances including under human rights law, Ukrainian domestic law and as a crime against humanity under international criminal law. The second part will provide a preliminary analysis of the available evidence, which offers at least a reasonable basis to believe that each of the elements of the crime against humanity of enforced disappearance is engaged.

Enforced disappearance involves the arrest, detention, or abduction of a person, followed by a refusal to acknowledge their fate or whereabouts, with both these acts carried out with the authorisation, support, or acquiescence of a State or political organisation. Due to the fact they have been rendered outside the protection of the law by virtue of their disappearance, the victims of enforced disappearance are particularly vulnerable to the risk of other serious crimes, such as torture or execution. 

While the definition of the crime against humanity of enforced disappearance in the Rome Statute entails significant challenges for its prosecution, it is crucial that the specific harm suffered by the victims and their families in Ukraine by virtue of their disappearance is adequately recognised and the victims and their families can access meaningful justice, whether before the International Criminal Court (‘ICC’) or another appropriate accountability mechanism.

The Legal Framework

Enforced disappearance is a serious violation of human rights, prohibited by the International Convention for the Protection of All Persons from Enforced Disappearance (‘ICPPED’).While Ukraine is a State Party to the Convention, requiring it to exercise jurisdiction over any acts of enforced disappearance which occur on its territory or against one of its nationals (Article 9), Russia has neither signed nor ratified it. 

In addition, enforced disappearances have been recognised by the Human Rights Committee as, among others, a violation of the right to liberty and security, the right of all persons deprived of their liberty to be treated with humanity and respect for dignity, and a threat to the right to life (see e.g., Boucherf v. AlgeriaBousroual v. AlgeriaEl Alwani v. Libyan Arab Jamahiriya). Enforced disappearances also constitutes a violation of both the victims’ and their families’ right not to be subjected to torture, or to cruel, inhuman or degrading treatment or punishment, as recognised by the Human Rights Committee (see e.g., Quinteros v. Uruguay, Lyashkevich v. BelarusEl Hassy v. Libyan Arab JamahiriyaBoucherf v. Algeria) and by the ECtHR (see e.g., Timurtas v. TurkeyKurt v. Turkey). 

When it takes place as part of a widespread or systematic attack against a civilian population, enforced disappearance constitutes a crime against humanity and is prohibited by the Rome Statute. Although Ukraine has not ratified the Rome Statute, it has accepted the jurisdiction of the ICC pursuant to two Declarations (first and second) under Article 12(3) of the Rome Statute. As such, the ICC has jurisdiction over Rome Statute crimes – including enforced disappearance – committed in Ukraine since February 2014. The ICC Prosecutor is conducting an investigation into the situation. 

Domestically, Ukrainian legislation does not criminalise the crime against humanity of enforced disappearance. It does, however, criminalise enforced disappearance as an ordinary crime under Article 146of the Criminal Code of Ukraine (‘CCU’). Specifically, the domestic crime of enforced disappearance involves “the arrest, detention, abduction or deprivation of liberty in any other form by a representative of a State, including a foreign one, with subsequent refusal to acknowledge the arrest, detention, abduction or deprivation of liberty in any other form or withholding the fate of such a person or place of residence”. Several criminal proceedings were initiated under this provision in March (e.g., here and here), while more investigations have been opened into the facts of enforced disappearance under Article 438 of the CCU which criminalises violations of laws and customs of war (e.g., hereherehere and here).

Further, two draft Bills (2689, which was adopted by the Verkhovna Rada of Ukraine but is yet to be signed by the President and 7290, which was recently submitted to the Verkhovna Rada for consideration), will (if and when either of them enter into force) incorporate the crime against humanity of enforced disappearances into Article 4421(1)(6) of the CCU.

The Crime against Humanity of Enforced Disappearance

The crime against humanity of enforced disappearance under Article 7(1)(i) of the Rome Statute is a complex one, and we do not have the benefit of extensive ICL jurisprudence to explain the elements. The complexity of the crime and the addition of elements not found in human rights law may be significant (but not absolute) barriers to its successful prosecution. 

The crime against humanity of enforced disappearance under the Rome Statute allows for several persons to be prosecuted at different stages of the disappearance. In sum, the crime consists of two major alternative types of conduct – deprivation of liberty and withholding of information. As such, it criminalises two types of perpetrators:

  1. perpetrator who arrested, detained, or abducted one more person (element 1.a), where this conduct was followed or accompanied by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons (element 2.a) which the perpetrator knew would occur in the ordinary course of events (element 3.a).
  2. perpetrator who refused to acknowledge the arrest, detention, or abduction, or to give information on the fate or whereabouts of such person or persons (element 1.b), where this conduct was proceeded or accompanied by a deprivation of freedom (element 2.b) which the perpetrator was aware of (element 3.b).

In addition, there are also jurisdictional elements to the crime against humanity of enforced disappearance under the Rome Statute: the act must have been committed by a State or political organisation, such as the police or armed forces, a state’s security service, or groups that are implementing state policies (which would include paramilitary groups controlled by or implementing the policies of a State); there must be a specific purpose (the act must be committed with the intention of removing the person from the protection of law); and a temporal element (for a prolonged period of time). 

In the second part of this post, a closer examination of the elements of the crime against humanity of enforced disappearance will be undertaken with a view to assessing whether there is a reasonable basis to believe that the conduct in Ukraine satisfies the elements.

Introducing Ruby Axelson and Anna Mykytenko

It is our pleasure to introduce our new contributors Ruby Axelson and Anna Mykytenko. Ruby Axelson is a Senior Adviser focusing on international litigation and project implementation in the fields of international criminal law, international humanitarian law and gender justice. Ruby currently leads GRC’s MATRA-Ukraine Project “Strengthening Ukraine’s Capacity to Investigate and Prosecute International Crimes”, executed in partnership between GRC and T.M.C Asser Instituut. Ruby is appointed to the defence team of Jovica Stanišić before the UN International Residual Mechanism for Criminal Tribunals (IRMCT), prior to this she was on the defence team of Ratko Mladić at the International Criminal Tribunal for the former Yugoslavia (ICTY).

Anna Mykytenko is a Senior Adviser and the Ukraine Country Manager at Global Rights Compliance Foundation. As a Ukrainian lawyer specialising in international humanitarian and criminal law, Anna advises Ukrainian state authorities, specifically, law enforcement organs, and NGOs on compliance with international humanitarian law, and the investigation and prosecution of international crimes. Additionally, she is engaged in conducting legal analysis and advising organs of the legislative and executive powers on various issues stemming from the belligerent occupation in Crimea and certain districts of the Ukrainian East.

Heartfelt welcome!

Go On! Documenting Good Practice on Accountability for Conflict-Related Sexual Violence in the Sepur Zarco Case

Go On! makes note of interesting conferences, lectures, and similar events.
►  The War Crimes Research Office of American University Washington College of Law, co-sponsored by the Academy on Human Rights and Humanitarian Law and the War Crimes Research Office of American University Washington College of Law with UN Women, Mujeres Transformando el Mundo and ReLeG announced open registration for a discussion of “Documenting Good Practice on Accountability for Conflict-Related Sexual Violence: the Sepur Zarco Case“, which will be held on Friday May 13th at 12 p.m. EST via Zoom.  Click here for Registration.

Sepur Zarco is a landmark verdict in which a Guatemalan court convicted two former military members of acts of sexual violence, sexual slavery, and domestic slavery committed against Maya Q’eqchi’ women near a military outpost in Sepur Zarco during the civil war in Guatemala. This was one of the first convictions of former military members for acts of sexual violence committed in the context of the country’s civil war, and one of the first instances of a domestic court anywhere prosecuting sexual slavery as an international crime.

The report highlights some of the critical developments prior to the case, as well as the social, legal, and political strategies employed in the case, which led to its remarkable success. It will also offer some reflections about the challenges that have emerged since the Sepur Zarco case and the potential lessons learned for pending and future litigation of similar cases in the region.

Speakers include Demecia Yat, President of the Jalok U Collective and one of the survivors of the conflict-related violence in the SepurZarco case, as well as:

·      Paula Barrios, Chief Coordinator, Mujeres Transformando el Mundo.

·      Susana SaCouto, Professorial Lecturer-in-Residence and Director, War Crimes Research Office, American University Washington College of Law.

·      Claudia Martin, Professorial Lecturer-in-Residence and Co-Director, Academy of Human Rights and Humanitarian Law, American University Washington College of Law.

·      Emily Kenney, Policy Specialist, Rule of Law and Transitional Justice, UN Women.

·      Ana Grace Cabrera Cordon, Coordinator on Women, Peace & Security and Humanitarian Action, UN Women Guatemala.

This event is free but requires registration through:https://unwomen.zoom.us/webinar/register/WN_Bh9Xwut8SK-pvNX9s94VfA

Date: Friday, May 13, 2022 – 12:00pm to 1:30pm.

Go On! Book Discussion: The Construction of the Customary Law of Peace, Latin America and the Inter-American Court of Human Rights

The Latin America Interest Group invites you to join us for a discussion oThe Construction of the Customary Law of Peace: Latin America and the Inter-American Court of Human Rights, written by Professor Cecilia Marcela Bailliet, Department of Public and International Law, University of Oslo Faculty of Law on Wednesday May 11th at 11 a.m. EST on Zoom, the video is available here

The book explores the emerging construction of a customary law of peace in Latin America and the developing jurisprudence of the Inter-American Court of Human Rights. It traces the evolution of peace as both an end and a means: from a negative form, i.e. the absence of violence, to a positive form that encompasses equality, non-discrimination and social justice, including gendered perspectives on peace.

Speakers:

  • Professor Cecilia Marcela Bailliet (author), Department of Public and International Law, University of Oslo Faculty of Law
  • Professor Jorge Contesse (discussant), Rutgers Law School
  • Laura Zielinski (moderator), Holland & Knight LLP

This session is organized by ASIL’s Latin America Interest Group and is cosponsored by the Center for Transnational Law at Rutgers Law School.

Date: 

Wednesday, May 11, 2022 – 11:00am to 12:00pm

For More Information 

Go On! Virtual Launch Event of “Women Break the Silence – Gender-based Torture in Asia” 

Go On! makes note of interesting conferences, lectures, and similar events.

►  To advance the applicability of the anti-torture framework to violence against women, the World Organisation against Torture (OMCT) and the Philippines Alliance for Human Rights Advocates (PAHRA) brought together eight women human rights defenders from Afghanistan, Bangladesh, Cambodia, Mongolia, Nepal, India, Philippines, and Sri Lanka to analyze prevalence and patterns of gender-based forms of torture against women and the circumstances in which these forms of torture take place, the consequences of torture and women’s access to reparation and rehabilitation. They developed eight country chapters that form the report entitled: Women Break the Silence – Gender-based Torture in Asia, which will be launched in a public virtual discussion.

When: 6 May 2022, 10:00-11:30 CET

Where: On Zoom: https://us06web.zoom.us/j/88580017992

Panelists:

Freshta Hakimi, torture survivor and human rights defender of CSHRN, Afghanistan

Reem Alsalem, UN Special Rapporteur on violence against women, its causes and consequences

Vrinda Grover, member of the OMCT General Assembly and advocate, Supreme Court of India

Shreen Abdul Saroor, Co-founder of Mannar Women’s Development Federation and Women’s Action Network, Sri Lanka 

Cristina Sevilla, lawyer and human rights officer of the OMCT, Philippines

Sopheap Chak, Executive Director of the Cambodian Center for Human Rights

Chair and Moderator

Farida Shaheed, Executive Director of Shirkat Gah – Women’s Resource Centre, Pakistan and former Special Rapporteur in the field of cultural rights

Renewed Hopes for Justice in Georgia

Following the international armed conflict (IAC) that erupted between Georgia and the Russian Federation (Russia) in 2008, the ICC (International Criminal Court) Prosecutor announced the initiation of a proprio motu (i.e. on the Prosecutor’s own initiative) preliminary examination into the Situation in Georgia on 14 August 2008. Subsequently, on 27 January 2016, Pre-Trial Chamber I (PTC) authorised the opening of an investigation into the Situation. In this regard, the Office of the Prosecutor (OTP) has been investigating alleged crimes against humanity and war crimes committed by all parties to the IAC in and around South Ossetia between 1 July and 10 October 2008.

The investigation marked many firsts for the Court: it was the first ICC investigation covering a situation outside the African continent, the first ICC investigation probing crimes allegedly committed in the context of an IAC, and the first ICC investigation into a situation arising from a post-Soviet country. Due to this last aspect in particular, the Situation in Georgia was initially seen as an important indicator for how the OTP might proceed with regard to other post-Soviet situations such as that of Ukraine.

The Prosecutor’s request for arrest warrants

In early March 2022, the Prosecutor announced that pursuant to Article 58 of the Rome Statute, he had filed an application seeking arrest warrants with regard to the Situation for:

  • Lt.-Gen. Mikhail Mayramovich Mindzaev, Minister of Internal Affairs – de facto South Ossetian administration;
  • Gamlet Guchmazov, Head of the Preliminary Detention facility – de facto Ministry of Internal Affairs of South Ossetia; and
  • David Georgiyevich Sanakoev, de facto Presidential Representative for Human Rights of South Ossetia.

All three are alleged to have committed war crimes that fall under Article 8 of the Rome Statute (para. 3) in and around the territory of South Ossetia between the 8th and 27th of August 2008 in the context of the occupation of Georgian territory by the Russian armed forces.

The Georgian government has been cooperating with the ICC since the initiation of its preliminary examination and welcomed the Prosecutor’s recent move terming it “another victory for Georgia”. However, Russia’s attitude towards the ICC has been less than amiable. The initiation of the ICC investigation in 2016 drew the ire of Russia. Accusing the ICC Prosecutor of siding with the aggressor and initiating “an investigation aimed against the victims” where all blame was placed on South Ossetian and Russian soldiers, Russia stated that it was “forced to fundamentally review its attitude towards the ICC”. Subsequently, in November 2016, Russia withdrew its signature from the ICC’s constitutive instrument, the Rome Statute. This symbolic move however, does not alter the position of any Russian nationals who are alleged to have committed core international crimes on Georgian territory. As Georgia is an ICC state party, the ICC is still capable of prosecuting any Russian nationals who are alleged to have committed crimes falling within its jurisdiction.

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