High Court of Australia dismisses private prosecution of Aung San Suu Kyi for alleged crimes against humanity

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Source: By Alex Proimos from Sydney, Australia – High Court of Australia, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=25649423

The High Court of Australia (HCA) recently dismissed a private prosecution of Aung San Suu Kyi – the State Counsellor of Myanmar – for alleged crimes against humanity against Rohingya people in contravention of the Australian Criminal Code. The judgment sheds light on the shortcomings of Australia’s domestic implementation of the Rome Statute of the International Criminal Court (Rome Statute) and raises important questions about the future of prosecutions of international crimes under Australian law.

Background

On 16 March 2018, Mr Taylor, a private citizen of Australia, lodged an application in the Registry of the Melbourne Magistrate’s Court alleging that Aung San Suu Kyi had committed the crime against humanity of the forcible transfer of population in contravention of section 268.11 of the Australian Criminal Code. Under section 268.121, the prosecution of these types of international crimes may only proceed with the consent of the Australian Attorney-General. Section 268.121 provides that:

(1) Proceedings for an offence under this Division must not be commenced without the Attorney-General’s written consent.

(2) An offence against this Division may only be prosecuted in the name of the Attorney-General.

Accordingly, Mr Taylor requested the consent of the Australian Attorney-General to commence the prosecution. The Attorney-General refused consent based on Australia’s observation of the principle of head of state immunity, which renders Aung San Suu Kyi “inviolable and immune from arrest, detention or being served with court proceedings”.

On 23 March 2018, Mr Taylor brought an application in the original jurisdiction of the HCA arguing that the Attorney-General erred in refusing to provide consent to the prosecution and requested the HCA to quash the Attorney-General’s decision. Specifically, the plaintiff submitted that, by ratifying the Rome Statute, “Australia took upon itself, as a matter of international obligation, not to recognise immunity based on official capacity for Rome Statute crimes in domestic criminal proceedings”. This is because article 27 of the Rome Statute removes immunity based on a person’s official capacity (e.g. Head of State).

The parties agreed to a set of special questions to be determined by the HCA, including whether the Attorney-General’s decision to refuse consent was erroneous by virtue of Australia’s ratification of the Rome Statute. However, the plaintiff failed to overcome the threshold issue of whether a private prosecution may be brought without the consent of the Attorney-General. The HCA, by a narrow four to three majority, therefore found it unnecessary to answer the remaining special questions regarding the current status of the principle of head of state immunity for international crimes before domestic courts and under principles of customary international law.

The HCA judgment Continue reading

Colombia’s Constitutional Court issues landmark decision recognising victims of reproductive violence in conflict

A month ago, on 11 December 2019, the Colombian Constitutional Court issued an important decision recognising that women and girls who suffered forced contraception and forced abortion by their own armed groups should be recognized as ‘victims of armed conflict’. The decision is one of very few in the world to specifically recognise reproductive violence as a form of harm committed against women and girls in times of conflict. It thus sets important legal precedent in recognising a form of gender-based violence that has long remained invisible. Although the full written decision has not yet been made available, a summary of the decision has been published. In what follows, I analyse this summary.

Helena’s case

The case was brought by Women’s Link Worldwide on behalf of Helena (pseudonym), a young woman who had been forcibly recruited into the FARC at the age of 14. While with the FARC, she was forced to take contraceptives (injections) and forced to undergo an abortion when she became pregnant. She suffered significant and long-lasting health consequences as a result of the unsafe conditions in which these procedures were forcibly carried out. Continuing to suffer negative health consequences, Helena fled and was in hiding for many years until the peace deal with the government was signed. In 2017, she submitted an application to be recognised as a victim and to seek reparations under Colombia’s Law on Victims and Land Restitution (Law 1448). This law, adopted in 2011, recognizes victims of the armed conflict and confirms their rights to truth, justice and reparations. It includes provisions on the restitution of land and other reparations, and requires that special attention be paid to the needs of specific groups and communities, such as women, survivors of sexual violence, trade unionists, victims of forced displacement, and human rights defenders.

The agency charged with the registration of victims under this reparations framework (UARIV), however, subsequently denied Helena’s claim for victim status. In doing so, UARIV had relied upon an article in Law 1448 that denied victim status to members of illegal armed groups (Article 2(3)), and held that, in any case, Helena’s claim was submitted outside of applicable timelines set out in Law 1448. Helena fought this decision; while the first instance court did grant her access to government-provided medical support, her claims for recognition as a victim and for reparations under Law 1448 were dismissed in both first and second instance. She thus appealed her case to the Constitutional Court, who heard the matter in 2019, and issued this landmark decision at the end of last year. Importantly, Helena’s case was selected for review by the full panel of nine judges, rather than being decided upon by a panel of three judges. This illustrates the importance the Constitutional Court attached to the issues.

Constitutional Court’s decision

In its December 2019 decision, the Constitutional Court firstly found established that Helena was the victim of grave violations of her fundamental rights. The Court subsequently held that in dismissing her application to be registered as a victim of the armed conflict, UARIV violated Helena’s fundamental rights on two grounds. Firstly, UARIV had violated Helena’s rights as a victim by failing to interpret the applicable rules in accordance with established constitutional principles of most favourable interpretation, good faith, pro personae, and the primacy of substantive law. Secondly, UARIV failed to properly substantiate its decision by neither acknowledging the acts of forced abortion and forced displacement Helena suffered, nor by recognising that Helena’s specific circumstances constituted force majeure, preventing her from submitting an application within designated timelines.

The Court acknowledged that, on its face, Article 2(3) of Law 1448 allowed for the denial of victim status to ex-combatants who demobilised as an adult, and that, under this interpretation, Helena would have to seek reparations through other mechanisms, not including Law 1448 (as Helena fled the FARC after she turned 18). However, the Court also questioned whether this exclusion in Article 2(3) was consistent with Colombia’s obligations towards victims of the armed conflict, noting in particular the coercive nature of the practice of forced contraception and abortion within the FARC and that these acts were often perpetrated upon girls under 18, or upon young women who had only just reached the age of maturity.

According to the Court, denying Helena the right to be recognised as a victim under Law 1448, therefore, would violate her rights to access justice and to timely and adequate protection measures. Noting the principal obligation on the state to recognise victims of sexual violence as victims in such a way as to guarantee their rights to integral reparations, the Court also held that as a victim of sexual violence committed within an armed group, Helena would not have access to other avenues of reparations beyond Law 1448. As such, for the Court, registration in the Register of Victims constituted her only available avenue to adequately repair her fundamental rights.

Importantly, the Court held that the exclusion stipulated in Article 2(3) could not become an obstacle to reparations for victims of sexual violence who, as ex-combatants, were forcibly recruited into those illegal armed groups at a young age. Such a rigid interpretation of Article 2(3), according to the Court, would thus create an unconstitutional lack of protection and vulnerability. The Court also reiterated the state’s obligation to provide immediate, comprehensive, gender-sensitive and specialised health care to all victims of sexual violence by armed actors for such time as deemed necessary to overcome the physical and psychological health consequences of such violence.

For this reason, the Court relied upon the principle of declaring a ‘constitutional exception’ (la excepción de inconstitutionalidad) as provided for in Article 4 of Colombia’s Constitution to overrule the applicability of Article 2(3) of Law 1448 to Helena’s case. Pursuant to this principle, when faced with a conflict between an ordinary legal norm and a constitutional norm, the Court may declare a constitutional exception to preserve rights guaranteed by the constitution in a specific case. In this case, the Court held that relying upon this principle was the only way to guarantee Helena’s fundamental rights and to find an adequate balance between Colombian law and Colombia’s international legal obligations under international humanitarian law and international criminal law. Not doing so, the Court stressed, would give rise to consequences that it held to be unconstitutional. As such, the Court rendered Article 2(3) of Law 1448 inapplicable to this specific case.

The Court thus ordered:

  • that the decision by UARIV not to include Helena in the Register of Victims be declared void;
  • that within 10 days of the date of its decision, UARIV admit Helena to the Register of Victims on the basis of her having suffered forced recruitment as a child, sexual violence (including forced use of contraceptives and forced abortion), and forced displacement;
  • that within 15 days of the date of its decision, UARIV reinstate the provision of psychosocial and medical assistance to Helena to address the emotional, mental health and physical effects of having suffered sexual violence;
  • that in the provision of integral reparations to Helena, UARIV take a gender-sensitive approach to ensure her fundamental rights; and
  • that the health services provide and guarantee access to Helena to immediate, comprehensive, gender-sensitive, specialised care for as long as necessary to address the physical and psychological consequences of the violations she suffered.

Significance of the decision

In finding in favour of Helena’s registration as a victim of the armed conflict, this case establishes that ex-combatants who were forcibly recruited into illegal armed groups and suffered sexual violence, as well as reproductive violence, within those armed groups may seek victim status and thus have access to reparations under Law 1448 – a right they did not have before – regardless of the age at which they demobilised or fled. Beyond the significance of this finding for the claimant in this specific case, therefore, this decision also sets important legal precedent in recognising that victims of sexual and reproductive violence within armed groups are victims of armed conflict. This follows earlier jurisprudence by the International Criminal Court in the Ntaganda case (here and here; see also this 2017 post by IntLawGrrl Rosemary Grey). The Colombian decision is also one of very few in the world to specifically recognise reproductive violence as a distinct form of harm committed against women and girls in times of conflict.

As part of the case, the Court received 17 expert briefs from national and international human rights organisations, women’s rights organisations, academics and international experts, including one from the author of this blog post (written jointly with Ciara Laverty). In our amicus request filing, we offered the Court a comprehensive overview of the way in which reproductive violence long remained invisible in international law, how it is increasingly being recognised, and why it should be recognised as a specific and distinct form of harm, including when committed within armed groups.

Reproductive violence is a widespread yet understudied phenomenon that occurs in times of both conflict and of peace. It can have serious physical, mental, emotional and other consequences that persist long after the violence has occurred. It is a form of victimisation connected to but also different from sexual and other violence, due to the distinct harm it inflicts and the underlying value it is said to violate, i.e. reproductive autonomy. Although reproductive violence affects individuals of all genders, there are distinct forms of harm and violence that are inflicted only upon women and girls because of and directly targeting their sex-specific biological reproductive capacities, such as forced contraception, forced abortion and forced pregnancy.

Historically, however, there have only been few instances where such violence has been independently recognised and considered. This left reproductive violence relatively invisibilised in international law. Nonetheless, current developments reflect a growing recognition that reproductive violence constitutes a distinct form of violence that should be independently recognised as violating specific, individual rights and may also constitute (international) crimes in certain circumstances. This decision by the Colombian Constitutional Court recognising the specific victimisation of female ex-combatants through forced contraception and forced abortion thus contributes to providing greater legal recognition to a form of gender-based violence that has long remained invisible in international law.

Importantly, in addition to claiming her rights as a victim through the constitutional action that was the subject of this decision, Helena has also requested participation as a victim in case 007 before the Special Jurisdiction for Peace. As such, further jurisprudence, including on individual criminal responsibility for acts of reproductive violence such forced contraception and forced abortion, may be forthcoming in Colombia.

Stay tuned!

ICC Assembly of States Parties: Final Day

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The International Criminal Court (ICC) Assembly of States Parties (ASP) finished on December 6 – a day early – with the amendment of article 8 of the Rome Statute to include the war crime of starvation in internal armed conflicts, the approval of the Court’s 2020 budget, and the adoption of a number of resolutions.

States unanimously adopted an amendment to article 8 of the Rome Statute to include starvation as a war crime in situations of non-international armed conflict. Switzerland proposed this amendment, which mirrors the offence already included in the Rome Statute as a war crime in international armed conflict. As described by Federica D’Alessandra, the adoption of this provision was the result of joint state-academic-civil society efforts over the past year.

On the final day of the ASP, states also approved a 2020 budget for the ICC of €145.62 million. This is both less than the Court’s request of €147.42 million, and also less than the recommendation of the Committee on Budget and Finance of €146.21 million. This amounts to a .41% increase, which effectively shrinks the Court’s budget when one considers recent inflation trends.

The ASP’s plenary approved a number of other resolutions on: the remuneration of ICC judges, cooperation, review of the procedure for the nomination and election of judges, review of the ICC and the Rome Statute system, and the annual omnibus resolution on strengthening the ICC and the ASP. This last resolution indicates that the ASP “reiterates its commitment to uphold and defend the principles and values enshrined in the Rome Statute and to preserve its integrity undeterred by any threats against the Court, its officials and those cooperating with it” and “renews its resolve to stand united against impunity”.

The final day saw a number of side events. For example, Australia, Sweden, the International Center for Transitional Justice and the International Nuremberg Principles Academy co-sponsored an event titled “Enhancing Prosecution: A Crucial Factor in Cooperation for Core International Crimes”. As well, Canada and MADRE co-sponsored a discussion on the “Aftermath of ISIL: Community Hearings for Gender-Based Violence Survivors and their Communities in Iraq”. Additionally, the Netherlands, Switzerland, Human Rights Watch, the Independent Investigative Mechanism (Myanmar) and International, Impartial and Independent Mechanism (Syria) co-sponsored “Turning challenges into opportunities: Rethinking UN and civil society cooperation towards accountability in Myanmar and Syria”.

The 2020 ASP will be an important one for shaping the future of the Court, with the election of the next Prosecutor and a number of new judges. Stay tuned a year from now with more IntLawGrrls coverage!

ICC Assembly of States Parties Symposium: Day Four

OTP Report on Preliminary Activities

Day Four of the International Criminal Court (ICC) Assembly of States Parties (ASP) saw a number of developments.

The ICC Prosecutor released her office’s annual Report on Preliminary Examination Activities today. The report details the preliminary examination activities carried out by the Office of the Prosecutor (OTP) between December 2018 – November 2019 in relation to nine situations under consideration for possible investigation. During the reporting period, one preliminary examination – the situation in Bangladesh/Myanmar – was completed and authorization to investigate was granted on November 14, 2019. As well, the OTP appealed the April 2019 decision by Pre-Trial Chamber II rejecting the request of the Prosecutor to proceed with an investigation of the situation in Afghanistan. The Prosecutor also filed her reconsideration decision with respect to the referral brought by the Comoros, following the Appeals Chamber’s judgement.

During 2019, the OTP continued its preliminary examinations of the situations in Colombia, Guinea, Iraq/United Kingdom, Nigeria, Palestine, the Philippines, and Ukraine, all of which are now at the admissibility stage (complementarity and gravity), and in Venezuela, where the OTP is assessing subject-matter jurisdiction.  The OTP also received 795 communications pursuant to article 15 of the Rome Statute. Of these, 617 were found to be manifestly outside the jurisdiction of the Court.

The ICC ASP held a plenary session on the topic of “Inter-State and Inter-Institutional cooperation at the heart of cooperation challenges”. Both the Prosecutor and Registrar provided thoughts on this theme, pointing to the need for enhanced state cooperation, given – for example – the number of outstanding arrest warrants. The plenary session also heard from panelists, states and civil society organizations. NGOs called on the ASP to tackle non-cooperation and on States Parties to enter into voluntary cooperation agreements with the Court on witness relocation, interim and final release, and sentence enforcement.

The final consultation on the annual omnibus resolution – “Strengthening the International Criminal Court and the Assembly of States Parties” – was held today. It will be put before the plenary tomorrow. Negotiations also continued today on the ICC’s 2020 budget.

Among the many side-events held today was one focused on “Accountability for International Crimes Committed Against Ethnic Minorities in Myanmar: Discussing Complementary Avenues for Justice”, co-sponsored by Canada, Liechtenstein, the European Center for Constitutional and Human Rights, the Global Justice Center, the Global Center for the Responsibility to Protect, and the Women’s Initiatives for Gender Justice. The event discussed the need for multiple forms of accountability to address Myanmar’s treatment of ethnic minorities – processes that will need to incorporate a strong gender perspective at every step. The panel considered how concurrent efforts at the ICC, the International Court of Justice, within third party states, and at the International Independent Mechanism for Myanmar need to act in a complementary manner in order to bring justice to the Rohingya and other minorities.

Day Five of the ICC ASP will see the introduction of draft resolutions to the plenary and a meeting of the Working Group on the budget.

ICC Assembly of States Parties Symposium: Between the 18th ICC ASP and the 71st Anniversary of the UDHR … Can hope rise again?

IntLawGrrls welcomes Ghuna Bdiwi, who contributes the post below directly from the International Criminal Court (ICC) Assembly of States Parties (ASP) in The Hague.

Ghuna BdiwiGhuna Bdiwi is a lawyer and a member of the UN Syrian Constitutional Committee as part of the experts and civil society group. She is a PhD candidate of international criminal law at Osgoode Hall Law School – York University. Ghuna is a delegate of the Canadian Partnership for International Justice to the 18th ICC ASP.

December seems to be a remarkable month for international justice. Two important milestones are taking place this month: the 71st Anniversary of the Universal Declaration of Human Rights (UDHR) and the 18th ICC Assembly of States Parties. The former event is to be held on the 10th of December, to commemorate the fundamental principles that should apply to every human predicament. The UDHR affirms in its preamble some of the major principles that humans should not live without, providing that “the inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world.” The latter event is held every year by State Parties to the ICC to convene and discuss matters related to the advancement of the international criminal justice system. This system is meant to sustain one of the important foundations of human dignity, that is to guarantee justice. The ICC, to a large extent, blossomed to guarantee lasting respect for and the enforcement of international justice, and to ensure that human rights violations do not occur with impunity. The establishment of the ICC was a direct response to prior human suffering resulting from wars and human-caused humanitarian disasters.

In 2019, the picture shows that a number of countries around the world are speaking out against evidence of corruption within authoritarian governments, while demanding democracy, freedom, equality and dignity. We witnessed mass demonstrations in Egypt, whereby Egyptians defied their government. Protests, demanding the government’s resignation, have filled the roads in Lebanon. In Iraq, mass protests have taken place to end government corruption, economic mishandling of economic resources, and other social cavities like poverty, unemployment, and lack of essential public services. In Hong Kong, protests are in response to citizens’ struggle for freedom of expression, rights of autonomy and self-determination. In Iran, national demonstrations have also ensued. Citizens simply want to get rid of authoritarian regimes.

Yet, this picture reminds me of the Syrian uprising that began on March 15, 2011. Many Syrian revolutionists were optimistic to establish the country they had envisioned – a democratic state that secures respect of their humanity, dignity, freedom and the rule of law. Contrary to the expectations of Syrian revolutionists, the response to their demands included grave human rights violations. The responses amounted the infliction of torture, imprisonment, murder, extensive destruction and appropriation of properties, as well as widespread, systematic and indiscriminate targeting of civilians, schools and hospitals. According to Articles (7) and (8) of the ICC Rome Statute, the conduct listed above constitutes heinous international crimes – namely, war crimes and crimes against humanity. In response to state wrongdoing, calls to address and halt human rights violations have been heard loudly from a variety of voices; citizens, the international community, individual states, intergovernmental organizations, non-governmental organizations, practitioners, diplomats, scholars, and others. Despite the list of concerned voices, there have been limited responses. There is no doubt that the UDHR is a milestone document in the history of human rights, but, alone, it is not an adequate tool to respond to calls to protect innocent civilians and prevent the scourge of war.

The strongest response to human rights violations might be a military response, but it can cause severe repercussions. The case of Iraq illustrates this reality. In 2005, the US decided to militarily intervene, claiming its intervention would implement democracy and free the people of Iraq from Saddam Al-Hussein’s ruthless dictatorship, but the country remains in a state of unrest up to this moment.  In contrast, the Rome Statute of the ICC was created to guarantee and enforce legal – rather than militaristic – justice.

In the Syrian context, sadly, the death toll has reached approximately 600,000 people, nearly six million people are displaced outside the country, and approximately 600,000 people are reportedly missing. Despite these harrowing statistics, human rights law has been unable to provide them with adequate responses. If Syria was a State Party to the Rome Statute of the ICC, many perpetrators would likely be imprisoned by now, or at least fleeing from the hands of justice.

I might sound very optimistic, but it sounds to me that when we call for criminal accountability, our calls send a message to perpetrators that we know what they have done, and that they deserve to be prosecuted and punished. We tell them that we will hold them accountable whenever the circumstances allow for it. Calling for criminal accountability has value in itself; value that is beyond the values we generate from calling for human rights violations to be addressed. For example, calls for criminal accountability might deter government figures or make them think carefully before violating citizens’ rights. Think about the range of states mentioned above, which are witnessing recent demonstrations and demanding that governments step down: none of these countries have ratified the Rome Statute. I argue that, if those countries were Parties to the Rome Statutes, government reactions to citizen’s demands would take on an entirely different form, which is enough of a reason to justify the importance of the ICC.

Of course, the ICC faces many critics related to its efficiency, selectivity and financial cost, but let’s not forget that it is still in its childhood. Let’s try to be optimistic that the ICC will be one day be able to fulfil its promise to guarantee lasting respect, enforce justice, and prevent impunity.

This blogpost and the author’s attendance to the 18th ICC ASP are supported by the Canadian Partnership for International Justice, funded by the Social Sciences and Humanities Research Council of Canada.

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ICC Assembly of States Parties Symposium: Economic Acts as Criminal Acts

Throughout the 18th ICC Assembly of States Parties, IntLawGrrls is welcoming members of the Canadian Partnership for International Justice as guest bloggers, reporting directly from The Hague. Today, IntLawGrrls welcomes Morgane Greco, an International Studies Master’s degree student from University of Montreal.

MorganeMorgane holds a Bachelor of Public Law and a Bachelor of Political Science from Lyon II University in France. Thanks to the ERASMUS+ Program, Morgane also spent one semester in Nicosia at the University of Cyprus, where she studied the Cypriot post-conflict society. She is currently articling at the United Nations’ Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict in New York and writing a Master’s thesis about sexual violence in the Eastern part of the Democratic Republic of the Congo.

Morgane’s post discusses a December 3rd side-event on “The prosecution of economic and financial crimes: towards an extension of the ICC’s jurisdiction?”. Organized by the

Side-Event Dec 3

(Twitter @AFP-CU)

Association française pour la promotion de la compétence universelle, it featured Mr. Oliver Windridge, lawyer and senior advisor for the UK-based organization The Sentry; Ms. Suncana Roksandic Vidicka, assistant professor at Zagreb University; and Mr. Richard J. Rogers, lawyer and founding partner of the organization Global Diligence. Ms. Elise Le Gall and Laureen Bokanda Masson, attorneys-at-law at the Association française, moderated the discussion.

Panelists addressed whether goals of international law and justice can be achieved if serious and widespread economic criminal acts occurring in pre-conflict, conflict or post-conflict contexts are not prosecuted. They also discussed whether serious economic criminal offences can constitute crimes under international criminal law, and what would be the most appropriate economic offence(s) to be considered as crime(s) under international law.

Grand corruption is a threat to world peace and security…

Definitions of grand corruption

According to Transparency International, grand corruption is “one of the great unresolved legal challenges of our day.” In the United Nations Convention Against Corruption (UNCAC)’s foreword, the Former United Nations Secretary General, Mr. Kofi Annan defined corruption as “an insidious plague that has a wide range of corrosive effects on societies.” It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and enables organized crime, terrorism and other threats to human security. The UNCAC’s foreword also explains that corruption is a key element in economic underperformance, and a major obstacle to poverty alleviation and economic development. Transparency International stresses that grand corruption corresponds to the abuse of high-level power that benefits the few at the expense of the many. The Sentry also defines the term of grand corruption as “a broad range of offenses, including bribery, embezzlement, trading in influence, misappropriation of state funds, illicit enrichment, and abuse of office committed by high-level public officials or senior officers of state-owned entities.”

At the side-event, Mr. Richard J. Rogers precised that such corrupted states are “kleptocracies”, which means, according to the Cambridge Dictionnary, “a society whose leaders make themselves rich and powerful by stealing from the rest of the people”. This definition entirely corresponds to Mr. Rogers’ words, who explained that such states tend to be involved in national and international networks aiming at moving money around and getting wealthier, while the population lives in poor conditions. Ms. Suncana Roksandic Vidicka further explained that grand corruption cannot be characterized as a Third World phenomenon, because the problem is global, depending often on multinational corporations that knowingly exploit, support and profit from kleptocracy, often making huge off-the book payments to corrupt leaders in exchange for deals granting access to natural resources or arms markets.

Characteristics of grand corruption white-collar crime

Grand corruption works thanks to deeply developed national and international networks, and is facilitated by new technologies of information and communication. Such white-collar crimes cause serious and widespread harm to individuals and societies, and also often goes unpunished. Ms. Suncana Roksandic Vidicka pointed out that some companies and business groups are way richer than states, making them highly powerful actors. In its 2011 report titled “The rule of law and transitional justice in conflict and post-conflict societies” the UN Secretary-General explained that transnational organized crime is often rooted in conflict and post-conflict settings, constituting an emerging threat to peace and security, development and the rule of law. Moreover, as Ms. Vidicka enlightened, global corruption is also allowing warlord to sustain longer on power.

… partly responsible for conflict-related sexual violence in the Democratic Republic of the Congo…

 With 80 million hectares of arable land and over 1,100 listed minerals and precious metals, the Democratic Republic of the Congo has the potential of becoming one of the richest economic powers on the continent, and a driver of African growth. Nevertheless, the reality is drastically different. This is the paradox of the Democratic Republic of the Congo.

A state rich in natural resources

As mentioned by the Enough Project report, the Democratic Republic of the Congo’s natural wealth reaches an estimated $24 trillion. Yet, the country has been plagued with armed conflict, political violence, and grand corruption for decades. Serious human rights violations are symptoms of Congo’s long tradition of violent kleptocratic regimes that have repressed civilians and hijacked the state for personal wealth and power purposes. Four minerals have fueled and continue to help sustain armed violence in Congo. During former President Joseph Kabila’s tenure, up to $4 billion per year went missing or were stolen due to the manipulation of mining contracts, budgets, and state assets. This follows the trend set by many Congolese officials through history, including King Leopold and the Belgian colonial authorities, Mobutu Sese Seko, and Joseph Kabila’s father Laurent Desire. These leaders’ international partners have also significantly benefited from this corruption.

One of the poorest countries in the world

In September 2019, the International Monetary Fund had qualified the DRC as one of the poorest countries in the world despite a large endowment of natural resources, while reminding that it has been prone to violent conflict over the years. Throughout the first decade of the 2000s, armed conflict and sexual violence in DRC were increasingly linked to exploitation and trade in “conflict minerals.” In 2000, the United Nations Security Council authorized the establishment of an “Expert Panel” to investigate the links between “illegal exploitation of natural resources” and armed conflict. As Professor Séverine Autesserre argues, such preoccupations with conflict mining and sexual violence became woven into a single narrative of the DRC conflict as caused by “the illegal exploitation of natural resources,” the most significant consequence of which was the “sexual abuse against women and girls.” While mining can be identified as one of the main causes of the Congolese conflict, it should be reminded that this situation is complex and cannot be limited to mineral resources only.

… and should be prosecuted at national and international levels.

At the ASP side-event, all panelists raised important questions related to the prosecution of white-collar crimes. They outlined the existing mechanisms addressing grand corruption and pointed at specific issues hindering the effective prosecution of economic and financial crimes.

Existing mechanisms addressing grand corruption

Some international regulating organizations already exist to deal with these delicate issues: we can cite as an example the organization Financial Action Task Force, which fight money laundering and financing terrorism, pursuant to the 2005 UN Convention Against Corruption.

States have also created mechanisms to address the issue. The United States Department of the Treasury or United Kingdom sanction regime can also target those responsible for human rights violations and corruption. National law enforcement can play a great role, as in the United Kingdom, where account freezing orders can be delivered to stop money from being transferred between accounts.

The difficult prosecution of severe economic and financial crimes

According to Mr. Richard J. Rogers, kleptocrats, understood as leaders who makes themselves rich and powerful by stealing from the rest of the people, fear to get in court if they lose power. While kleptocrats are in power, judges and prosecutors can be reluctant to carry judicial proceedings against them as the judicial body is often corrupted as well.

Ms. Suncana Roksandic Vidicka explained that a majority of illicit operations and economic and financial crimes are only prosecuted at national level. She cited some cases about corporate responsibility in war crimes, such as Khulumani (United States), Sanader (Croatia), Kiobel v. Royal Dutch Petroleum (United States), Lafarge (France), Lundi Petroleum (Sweden), and Guus Kouwenhoven (Netherlands). The assistant professor also pointed out that national authorities can interfere in proceedings carried out at the national level, thus hindering the effective prosecution of these crimes.

 CONCLUSION AND SIDE EVENT OVERVIEW

As emphasized by Ms. Suncana Roksandic Vidicka, corruption is used by state officials to hold on to power. These officials are more likely to be prosecuted when they lose power, as illustrated by the case of former Sudan leader Oman Al-Bashir. In order to hold more individuals in power accountable for those crimes, and to break the illicit networks, civil society needs to advocate for corporate transparency before pressure groups such as the African Union and the European Union. Additionally, the civil society have to push for prosecution both at national, regional and international levels. To that end, Ms. Suncana Roksandic Vidicka presented some proposals of economic and financial offences that could eventually become part and parcel of international law. Such acts could notably constitute serious violations of the 1966 International Covenant on Economics, Social and Cultural Rights, crimes against future generations, economic oppression, indigenous spoliation, illegal enrichment, or grand corruption.

Lawyer Mr. Olivier Windridge seeks accountability for all crimes that have economic and financial aspects. According to him, the world needs a first successful case dealing with economic and financial crimes, at international level. In that respect, fighting white collar crimes before the ICC would be a great step ahead.

 The author’s attendance at the 18th Assembly of States Parties to the International Criminal Court is supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

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ICC Assembly of States Parties Symposium: Day Three

ASP photo

Photo credit: CICC

The agenda for Day Three of the International Criminal Court (ICC) Assembly of States Parties (ASP) included discussions on the 2020 ICC budget, a plenary session on the theme of “Review of the Court” and informal consultations on the annual omnibus resolution, “Strengthening the International Criminal Court and the Assembly of States Parties”.

The budget discussions are always challenging, as the Court is caught between increasing demands for more investigations and prosecutions, and the concerns of states paying assessed contributions to cover the budget. For 2020, the Court is proposing a budget increase of 1.6 per cent over the 2019 budget (€148 million). The Committee on Budget and Finance is recommending a 2020 budget increase of 0.81 per cent. Day Three saw presentations by the ICC Registrar, Peter Lewis, and the Chair of the Committee on Budget and Finance, Mr. Hitoshi Kozaki of Japan. Audit reports were then considered, and consultations followed. Budget consultations among states will continue throughout the week.

The plenary session on “Review of the Court” included statements by the ICC President, Prosecutor and Registrar on the performance of their respective organs, followed by seventeen states and four representatives of civil society. States welcomed the establishment of an Independent Expert Review body to consider and report in 2020 on ways in which the Rome Statute system can be improved. Civil society representatives called for the review process to be transparent and inclusive.

States continued consultations on the omnibus resolution.

It was another busy day for side-events at the ICC ASP, which covered diverse themes. Topics included the rights of indigent detainees to family visits, the war crime of starvation, head of state immunities, the role of European states in strengthening the Rome Statute system, the challenges of pursuing universal ratification, the protection and participation of victims, and the value of a harm-based and victim-centered approach to reparative justice. Events also considered the situations in Colombia, South Sudan, Iraq, and Guinea.

Tomorrow, Day Four will continue with a discussion on cooperation and continued consultations on the omnibus resolution.

ICC Assembly of States Parties Symposium: Day Two

FIDH SG at ICC ASP18

Drissa Traoré, FIDH Secretary General, presenting FIDH’s statement to the ICC ASP18, Dec. 3, 2019. Photo Credit: FIDH

The schedule for Day Two of the International Criminal Court (ICC) Assembly of States Parties (ASP) was packed, with a continuation of the General Debate, informal consultations on the draft resolution “Review of the International Criminal Court and the Rome Statute system”, and informal consultations on the 2020 budget on the schedule.

The General Debate continued from Day One, with statements by States Parties to the Rome Statute, observer states and representatives of civil society. Several themes continued from the day prior, including expressions of state and civil society concerns about threats directed against the ICC and the challenges the ICC is facing. Many called for all States Parties to step up their diplomatic support for the Court and to take action.

Another key theme stressed by many speakers is the need for States Parties to nominate and elect the most highly qualified individuals to serve as ICC judges in the 2020 judicial elections. For example, Melinda Reed, Acting Convenor of the Coalition for the ICC (representing over 2500 organizations from 150 countries) stated: “States parties have a critical responsibility to ensure the best leadership of the court and the Assembly, and we urge you to ensure the nomination and election of highly-qualified and independent candidates through fair, transparent, and merit-based nomination and election processes. This Assembly has before it a draft resolution on judicial elections which can greatly contribute to improving the elections process. We call on you to adopt the resolution without hesitation.”

Additionally, more states joined calls for the amendment of the Rome Statute to include the war crime of starvation as a method of warfare in non-international armed conflict,

States also welcomed the initiative to implement an independent expert review of the ICC by highly qualified experts.

Civil society organizations from all regions of the world presented statements, making recommendations on a host of issues, including the budget. For example, Drissa Traoré, FIDH Secretary General, indicated: “Supporting the Court also comes through the adoption of a budget that meets the ICC’s real needs so it can effectively carry out its mandate in favour of the main beneficiaries: the victims of the most serious crimes and affected communities.”

It was a busy day for side-events covering a wide variety of issues such as the Draft Convention on Crimes Against Humanity, complementarity in Uganda, interim release of accused, decision-making within the ICC, intermediaries, the prosecution of economic and financial crimes, state and regional cooperation with the ICC, prosecutions in other fora, and standardizing processes for international criminal investigations. Additionally, Argentina, Belgium, Mongolia, the Netherlands, Senegal and Slovenia co-sponsored an event on their joint Mutual Legal Assistance Initiative, “Towards the convention on International Cooperation in the Investigation and Prosecution of the Crimes of Genocide, Crimes against Humanity and War Crimes.”

IntLawGrrls’ coverage of the ICC ASP will continue on Day Three, which will see negotiations on the Court’s budget, the omnibus resolution, and the review of the Court.

 

ICC Assembly of States Parties Symposium – The ICC: A potential avenue for accountability for ecocide?

During the December 2-7 meeting of the ICC Assembly of States Parties (ASP), IntLawGrrls is featuring blog posts by members of the Canadian Partnership for International Justice as part of its ICC ASP Symposium. Today we welcome Ania Kwadrans, who sends us this post from the Assembly.Ania Kwadrans

Ania Kwadrans is a Senior Policy Advisor at University of Ottawa Refugee Hub, providing strategic and policy guidance on local, national, and global issues affecting refugee rights. Before joining the Refugee Hub, Ania worked with Amnesty International, engaging in strategic litigation on human rights cases before courts of all levels, including the Supreme Court of Canada, and advocacy before Canadian Parliamentary Committees as well as United Nations treaty bodies. Ania holds a J.D. degree from Osgoode Hall Law School, is called to the Ontario bar, and is currently undertaking graduate studies in International Human Rights Law at the University of Oxford.

“For many decades the human species has been at war with the planet. And the planet is fighting back. … Our war against nature must stop. And we know that this is possible.”

These evocative words of the UN Secretary General Antonio Guterres delivered at a pre-COP25 press conference, 1 December 2019, suggest a connective line between environmental destruction and the very types of crimes that “threaten the peace, security and well-being of the world” falling within the ambit of the Rome Statute of the International Criminal Court (Rome Statute).

Indeed, it is now widely understood that the activities of resource extraction industries shaping and feeding humanity’s culture of overconsumption have not only been destructive to the immediate environments in which they take place, but they have also set the world on a path toward devastating climate change. Despite the recognition in the Paris Agreement, in 2015, by a majority of States, that “climate change is a common concern of humankind” and that as a result global temperature rises need to be limited to 1.5 degrees above pre-industrial levels to “significantly reduce the risks and impacts of climate change”, the world had already reached temperatures approximately 1 degree Celsius above pre-industrial levels, according to the 2018 Intergovernmental Panel on Climate Change’s Special Report. The Special Report warned that this is putting Earth on a path to reach the critical 1.5 degree threshold by 2040, unless profound societal changes are implemented to eliminate our reliance on greenhouse gas emissions. It comes as no surprise, therefore, that in her 9 September 2019 address to the Human Rights Council, UN High Commissioner for Human Rights Michelle Bachelet called climate change “a rapidly growing and global threat to human rights”, the human implications of which are “catastrophic.” She noted: “We are burning up our future – literally.”

Within this context, on the first day of the 18th Assembly of the States Parties (ASP18) to the International Criminal Court, the State of Vanuatu, Ecological Defence Integrity, Green Transparency, the Heinrich Boll Foundation, and the Institute for Environmental Security hosted a side event entitled “Investigating & Prosecuting Ecocide: The Current and Future Role of the ICC.” The event explored current and future opportunities for the International Criminal Court (ICC) to address the climate crisis and rapid environmental degradation we are seeing around the globe.

The type of environmental destruction and its impacts on the sustainability of living beings on Earth was referred to during the event by the term “ecocide.” Polly Higgins, a British lawyer who dedicated her life’s efforts to the recognition of ecocide, defined the term as “the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.”[1] When, however, human activities are at the root of such extensive destruction to our world’s ecosystems, Higgins argued that such actions can attract international criminal responsibility. Higgins argued that this can be the case when:

[a]cts or omissions committed in times of peace or conflict by any senior person within the course of State, corporate or any other entity’s activity which cause, contribute to, or may be expected to cause or contribute to serious ecological, climate or cultural loss or damage to or destruction of ecosystem(s) of a given territory(ies), such that peaceful enjoyment by the inhabitants has been or will be severely diminished.[2]

Further, such impacts must be “widespread and long-term or severe” in order to meet the requisite gravity threshold.[3]

In 2016, the ICC Office of the Prosecutor published a Policy paper on case selection and prioritisation, in which the Prosecutor set as policy giving “particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land” (para. 41). The side event explored what impact this policy has had on the ICC’s functioning since 2016, and what opportunities it and the Rome Statute might present to bring perpetrators of ecocide to justice and taking actions to reverse course and save our dying ecosystems.

At the side event, the audience was first welcomed by John H. Licht, Ambassador of Vanuatu to the United Kingdom and European Union. He was then followed by Natan Brechtefeld Teewe, former Minister of Justice for Kiribati. He emphasized how Kiribati, a small island nation extremely vulnerable to climate change, and the newest State Party to the ICC, could benefit from the ICC’s assistance in investigating and prosecuting environmental offences. The following speaker to provide preliminary remarks was Losaline Teo, Crown Counsel of Tuvalu, who similarly described the effects of climate change her own small island state was already feeling: rising air temperature, more intense and frequent storm surges, declining rain falls, soil salination destroying root crops, and loss of fish stock, the country’s main source of revenue. Like Mr. Teewe, she argued that Tuvalu needed international assistance in order to have the capacity to fight impunity for actions that cause climate change. These three sets of introductory remarks effectively reminded the audience of the real and imminent threats to existing human populations caused by human-induced climate change.

After these introductory remarks, Valérie Cabanes of the Global Alliance for the Rights of Nature noted that multinational resource extraction companies should have been aware of the impacts of their activities since the late 1980s, when the Intergovernmental Panel on Climate Change was established to examine the consequences of climate change. Yet, these companies have only intensified their research and exploitation activities, which are heavily subsidized to the tune of $5.2 trillion (in 2017). This amount represents approximately 6.5 percent of the global GDP. Ms. Cabanes noted that a draft Ecocide Convention has been in consideration in various forms since 1973 which envisages the establishment of an international environmental court, but argued that a much simpler and quicker avenue to achieve the same objectives of recognizing ecocide as an international crime would be to amend the Rome Statute to extend its jurisdiction over this as the fifth atrocity crime.

The following speaker, Richard Rogers of Global Diligence, argued that while States Parties should pursue an amendment to the Rome Statute to introduce a new crime of ecocide, there are meaningful actions that can also be taken within the bounds of the current treaty provisions. He noted that the case of land grabs in Cambodia are exemplary of actions that cause significant damage to the environment, including through widespread deforestation, that also are realized through the perpetration of potential crimes against humanity such as forcible transfer (Rome Statute, art. 7(1)(d)). Human rights defenders are often detained or even killed when attempting to defend their lands. While it is an indirect route to address environmental crimes, he noted that it is nevertheless a start, given that some of the worst environmental degradation flows from illegal land grabs, particularly on indigenous lands. In October 2014, Mr. Rogers filed a case at the ICC on behalf of Cambodian victims evicted from their lands. Despite the OTP’s 2016 policy note, this case has not been prioritised, leading Mr. Rogers to challenge the ICC and the Prosecutor to follow her office’s own policy and to prioritise this situation because of the significant environmental damages involved.

Mr. Rogers was followed by Rodrigo Liedó, of FIBGAR, who focused his remarks on the 2016 OTP policy paper, and argued that on the one hand, it only has a potential impact on the assessment of the gravity of the crime in question. The fact that this policy guidance has not been relied upon since the issuance of the policy paper indicates that its value might be overestimated. However, he ultimately concluded that it should be seen as a promising step toward a more complete assessment of environmental harms as components of international crimes. The ICC is in a process of revision and reform, an opportune timing according to Mr. Liedó, to consider the codification of a new crime of ecocide.

The final speaker for the session was Jojo Mehta, from Ecological Defence Integrity. Ms. Mehta described her organization’s global campaign: “Stop Ecocide: Change the Law”. The mission of the campaign is the introduction of the crime of ecocide into international criminal law. She argued that the ICC is an advantageous arena for such action because, victims have equal voices to states within it. Moreover, in her perspective, only a 2/3 majority is needed to put ecocide on the agenda for potential discussion of an amendment to the Rome Statute and this is feasible in 2020 if key States are willing to step forward. Ms. Mehta emphasized that recognizing ecocide as a Rome Statute crime would give civil society political leverage around which to mobilize, and it would also create moral leverage by drawing a red line between actions affecting our environment that are acceptable and actions which are not. According to her, even initiating the conversation will begin to shift the discussion and start putting a timeline in place toward full recognition.

The speakers concluded with reflections that a two-pronged approach should be followed: leveraging the OTP’s 2016 report and existing crimes within the jurisdiction of the Rome Statute to seek accountability for environmental crimes to the extent possible; while pursuing the introduction of a new crime of ecocide via amendment to the Rome Statute. As the former Secretary-General Ban Ki-moon appealed to UN Member States to “defend the science that shows we are destabilizing our climate and stretching planetary boundaries to a perilous degree”, could the international criminal mechanisms established by the Rome Statute provide one possible way of mounting this defense?

[1] As cited in Anastacia Greene, “The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative?” (2019) 30:3 Fordham Law Review 1 at 2.

[2] Ibid at 2-3.

[3] Ibid at 3.

The author’s attendance at the 18th Assembly of States Parties to the International Criminal Court is supported by the Canadian Partnership for International Justice, funded by the Social Sciences and Humanities Research Council of Canada.

CPIJSSHRC

 

 

ICC Assembly of States Parties Symposium: Day One

ICC Prosecutor at ICC ASP18

ICC Prosecutor Fatou Bensouda, Dec. 2, 2019 – Photo Credit: ICC

Welcome to IntLawGrrls’ symposium on the annual meeting of the International Criminal Court (ICC) Assembly of States Parties (ASP). The 18th session of the Assembly runs from December 2-7 in The Hague, Netherlands.

This year’s ASP will hold a plenary discussion on inter-State and regional cooperation initiatives for the effective implementation of the ICC’s mandate. It will also consider threats and challenges to the ICC, ways to strengthen the Rome Statute system, the 2020 ICC budget, preparations for the ICC elections of six new judges and a new Prosecutor taking place at next year’s ASP, victims’ rights, and potential amendments to the Statute, among other issues.

ASP President O-Gon Kwon opened the ASP, noting that “[t]his year the Assembly faces key decisions on the way forward in view of the anticipated review of the Court, one that would ultimately strengthen the Court and enable it to successfully confront the challenges that it faces today.” He also congratulated the newest state to accede to the Rome Statute, Kiribati, which deposited its instrument of accession on November 26. It will become the 123rd State Party.

ICC President Chile Eboe-Osuji began his speech in a very direct manner, stating that “During the past 15 months, the ICC has been subjected to unprecedented threats in a very public way, from leading officials of the incumbent Government of a powerful country”, referring to the September 2018 speech by former US National Security Adviser John Bolton. Bolton threatened ICC officials with various sanctions to deter them from opening an investigation into the Afghanistan situation and potentially implicating US citizens. That threat was subsequently reiterated by US Secretary of State Mike Pompeo, who announced the cancellation of the Prosecutor’s standing travel visa to the United States. Eboe-Osuji said: “These threats were made in a very plain and unvarnished attempt to subvert the ‘course’ of action of a legitimate multilateral judicial institution.” He continued, “notwithstanding that the Court will do its work undeterred, I must urge, in the most fervent terms, that YOU, the States Parties to the Rome Statute, must do all that it takes – and be prepared to do more – to counter these threats, in all their ramifications.” The Prosecutor’s appeal on her request to open an investigation into the Afghanistan situation will be heard at the ICC this week.

ICC Prosecutor Fatou Bensouda presented an overview of her Office’s successes and challenges from the past year. The successes include the opening of an investigation into the situation in Bangladesh/Myanmar, while the failures include the acquittal of Gbagbo and Blé Goudé and the judges’ denial of her request to open an investigation into the situation in Afghanistan (currently on appeal). Referring to international divisions, she stated that “it is precisely at times like these when international criminal justice and indeed efforts to address gross human rights violations are under assault; when we are witnessing a clash and crisis of fundamental values, the courage and conviction must guide our actions to protect our common values and goals as defined under the Rome Statute”. She noted that attacks against the ICC will undoubtedly rise as the Court increases its work in more situations.

The General Debate also began today, with statements from numerous states. Echoing ICC President Eboe-Osuji’s theme, many states highlighted the need for States Parties to robustly defend the ICC against external threats to its work and its independence. States also referred to measures aimed at reviewing the Court’s performance as being essential steps in reinforcing the Court’s effectiveness. A number of states discussed the specific challenges facing the Prosecutor when investigating and prosecuting sexual and gender based crimes.

Some of the speakers today also called for the adoption of an amendment to the Rome Statute to include starvation as a war crime in situations of non-international armed conflicts. This amendment would mirror the same crime aready listed in the context of international armed conflicts.

Many states were focused on the 2020 elections of the next Prosecutor and six new judges, calling for transparent and objective processes to nominate and elect the most highly qualified individuals to lead the Court. Both Georgia and the United Kingdom announced judicial candidates for those elections.

One side event to take note of today was the launch of “The Hague Principles on Sexual Violence”, which aim to translate the lived experience of sexual violence survivors into law and policy. These were created as a result of consultations throughout 2019 with more than 500 survivors, over 50 civil society organisations, legal practitioners, academics, and policy makers.

Members of the Canadian Partnership for International Justice present at the ASP will join this symposium each day to provide their views on ongoing developments at the Assembly.