International Criminal Law

Prosecution of Environmental War Crimes at the ICC: Exalted Thresholds

/ Ananya Mukherjee / Leave a comment

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.

Renewed Hopes for Justice in Georgia

/ B. Aloka Wanigasuriya / Leave a comment

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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A Legal First in International Criminal Justice: A Conviction for Forced Pregnancy in the Ongwen Case

/ Sterre van Campen / 1 Comment

On 4 February 2021, the International Criminal Court (ICC) delivered its judgment on the charges against Dominic Ongwen, a former brigade commander in Uganda’s Lord’s Resistance Army (LRA). He was found guilty on 62 counts of war crimes and crimes against humanity. The Ongwen case is a landmark case for several reasons, one of them being the central role of sexual and gender-based crimes (SGBC). Significantly, Ongwen is the first person to be convicted for forced pregnancy. This is a historical first that an international court holds a perpetrator responsible for violating reproductive autonomy of women. This post considers the first interpretation of the crime by the Trial Chamber (TC), the finding in the Ongwen case and its implications.

The Importance of Prosecuting Forced Pregnancy

Forced pregnancy has been a weapon of war used throughout history to ensure the birth of children of an ethnicity other than their mother’s. In spite of experiences of women in Rwanda and the former Yugoslavia, it was never prosecuted. The ICC is the first international tribunal where the crime is proscribed in its statute.  The Rome Statute defines forced pregnancy as “the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law” in Article 7(2)(f). The drafting of the provision was highly contentious, and it is considered to be one of the most controversial crimes in the Statute. This led to a “uniquely narrow definition.” The protected value of the crime of forced pregnancy is predominantly reproductive autonomy, as ICC prosecutors in the Ongwen case reiterated. This protected interest differentiates it from other SGBC in the Statute.

Forced pregnancy inflicts harm on the victim that extends beyond harm caused by other sexual crimes. An unwanted pregnancy brings about life-long consequences. Giving birth to an (unwanted) child is traumatizing. Additionally, unplanned motherhood is problematic, given the responsibilities of having a child. During the pregnancy in confinement, victims might lack facilities to ensure a safe pregnancy and childbirth. The consequences on the health of the woman can be deleterious. Moreover, children born out of such forced pregnancy also face adversity. They are often seen as children from the enemy. Mother and child become subject to marginalization and stigmatization within their community. Such prejudices could be a life-long burden victims are faced daily.

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Violence, Justice, Equity: Reflections on International Women’s Day

/ Pantea Javidan / Leave a comment

On this International Women’s Day (IWD), the official UN theme for 2021 is “women in leadership: achieving an equal future in a COVID-19 world.” The elimination of discrimination and violence against women and girls are targets of the Millennium Development Goals and the UN Agenda 2030, which emphasizes inclusivity in its Sustainable Development Goals (SDGs), including gender equality and the empowerment of all females in Goal 5. Goal 10 aims to reduce gender and socioeconomic inequalities globally, including through the elimination of discrimination, violence, exploitation, forced marriage, and female genital mutilation.

Dating back to the first celebration in 1909 in the United States, IWD is rooted in socialist women’s leadership in struggles for labor and economic justice, such as the 8-hour workday and limits on women’s and children’s labor; political justice, such as suffrage and liberation from fascism and autocracy; a refusal to sacrifice husbands and children to wars; and breaking down false barriers between “public” and “private” life that conceal the important roles of mothers and wives. Women’s efforts against poverty and violence have also been consistent IWD themes, including the structural violence of female subordination—“a tolerance of violence against women and children” and being “subjected to a life of sub-humanity for the sheer fact alone that they were born female,” as noted on IWD 2012.

To imagine a gender-equitable future from this historical moment in 2021 requires reckoning with how women and girls have been faring. For instance, since the start of the pandemic in the US women—disproportionately women of color—have left the work force at four times the rate of men, reversing previous gains. One of the more well-known outcomes of the COVID-19 pandemic is the escalation of domestic violence and sexual and gender-based violence (SGBV), triggered by prolonged social isolation, household tension in close quarters, and increasing strains on individuals and families due to deteriorating health, socio-economic, and/or political conditions. The “Forever Wars” and other conflicts around the world have also raged on during the pandemic, adding to the world’s refugee crisis in which 75-80% of displaced persons are women and children. Trauma is understandably a common preoccupation of our time.

Working at the intersection of human rights and trauma mental health, I have spent the last year writing about SGBV and trauma-informed approaches to interviewing female survivors for purposes of investigating human rights violations such as genocide, crimes against humanity, war crimes, and mass detention of people seeking refuge from violence and poverty. Among multiple things competing for our attention, mine has been focused intensely on militarism, conflict-related SGBV, impunity, and feminist activism amidst growing societal & global inequities and increasing violence in many forms—criminal, sexual, domestic, and political—during the pandemic. In the ongoing and escalating struggle for gender justice, urgent attention to violence remains important. Among the types of violence and harm SGBV stands out for several reasons. It is the only serious crime for which many justice systems require victims to prove lack of consent to the harm inflicted. Across diverse legal systems, redress for SGBV is difficult to attain due to attribution of blame and complicity to victims/survivors as well as impunity for perpetrators. SGBV has also historically been the least punished offense committed during wartime.

In the long history of international feminist activism, it is only recently that women’s efforts led to the recognition of conflict-related SGBV as a war crime against the long-standing idea that sexual violence against women, girls, men, and boys is an expected military reward or byproduct of war. Women’s campaigning for redress of this injustice, through UN human rights and women’s rights conferences and particularly since the 1990s International Tribunals for Rwanda and the Former Yugoslavia, resulted in its designation as a crime against humanity. “From time immemorial, rape has been regarded as spoils of war. Now it will be considered a war crime,” said Judge Pillay of the International Criminal Tribunal for Rwanda (later, the UN High Commissioner for Human Rights).

However, all forms of SGBV persist, supported by strong ideological underpinnings: state-supported violence, militarized masculinity, and victim-blaming alongside perpetrator impunity. These thrive in a broader context of social, economic, civil, and political inequities. SGBV is founded on sexist beliefs and compounded by other structural inequalities in the context of globalized discourses of militarized masculinity that merge sex and violence, and which are amplified through warfare. The globally pervasive threat of SGBV reduces the quality of life for targeted persons—disproportionately women, girls, and gender non-conforming persons—and is particularly acute in hyper-masculinist institutions in which sexual assault rates are often highest, such as in militaries. Conflict-related SGBV inflicts collective trauma by systematically targeting individual bodies in furtherance of broader social harms such as the mass displacement, dispossession, and extermination of entire neighborhoods and communities. Female survivors of conflict-related SGBV have reported feelings of complete insecurity and multiple losses: bodily integrity, health, loss of family and their livelihoods, disorientation and lack of belonging, profound dispossession of their personal identity, and marginalization.

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The ICC Prosecutor’s Final Report on the Iraq/UK Investigation: Concerns Over Complementarity and the Court’s Future Legitimacy

/ Milena Sterio / Leave a comment

Earlier today, the International Criminal Court (ICC) Prosecutor released the Final Report regarding the status of the preliminary investigation into Iraq/United Kingdom (UK).  In this Report, the Prosecutor concluded that 

on the basis of the information available, there is a reasonable basis to believe that, at a minimum, the following war crimes have been committed by members of UK armed forces: wilful killing/murder under article 8(2)(a)(i)) or article 8(2)(c)(i)); torture and inhuman/cruel treatment under article 8(2)(a)(ii) or article 8(2)(c)(i)); outrages upon personal dignity under article 8(2)(b)(xxi) or article 8(2)(c)(ii)); rape and/or other forms of sexual violence under article 8(2)(b)(xxii) or article 8(2)(e)(vi)) (para. 69).  

Despite the above-mentioned finding, and despite the fact that over 3,000 cases of alleged abuse and atrocities by UK troops in Iraq had been referred to the UK national authorities, that many such cases had resulted in favorable settlements in UK civil courts, and that some such cases had been successfully litigated in the European Court of Human Rights (ECHR), the ICC Prosecutor decided to close this investigation. In this post, I will discuss the procedural history of the Iraq investigation, as well as analyze the Prosecutor’s findings in this Report.  In addition, I will discuss the potential impact of this decision on the future of the ICC.  

Procedural History

The Prosecutor initially opened a brief preliminary investigation into Iraq/ UK, but this investigation was closed in 2006. In January 2014, the European Center for Constitutional and Human Rights (ECCHR) together with Public Interest Lawyers (PIL) submitted an Article 15 communication to the Prosecutor, alleging the responsibility of UK armed forces and other UK officials for war crimes involving systematic detainee abuse in Iraq from 2003 until 2008. In light of this new information, the Prosecutor re-opened a preliminary investigation into this situation in May 2014.  In a 2017 Report, the Prosecutor announced that, following a thorough factual and legal assessment of the information available, it had reached the conclusion that there was a reasonable basis to believe that members of UK armed forces committed war crimes within the jurisdiction of the ICC against persons in their custody. This second Iraq/UK investigation was just closed today; the Prosecutor’s rationale for reaching this decision was published in the Final Report.

Prosecutor’s 2020 Final Report

In today’s Final Report, the Prosecutor concluded “that the only appropriate decision is to close the preliminary examination without seeking authorisation to initiate an investigation” (para. 1). The Prosecutor reached this decision on admissibility grounds under Article 17 of the Rome Statute.  The Prosecutor focused both on gravity and complementarity under Article 17; this post will focus on the Prosecutor’s analysis of complementarity, which occupied most of the Report (I note that the Prosecutor determined to perform an admissibility analysis in this case, despite the fact that admissibility determinations do not normally form part of Article 15 Pre-Trial Chamber determinations; according to the Prosecutor, “[a]lthough the Appeals Chamber has recently held that admissibility does not form part of the Pre-Trial Chamber’s determination under article 15(4), it nonetheless stressed the persisting duty of the Prosecutor, under rule 48, to be satisfied that all of the factors relevant to the opening an investigation, including admissibility, are met before proceeding with an article 15 application” (para. 156)).

The Prosecutor explained in the Final Report that the complementarity test under article 17 involves a two-step inquiry, “involving a determination of whether the national authorities are active in relation to the same case (first step), and only if so, whether this activity is vitiated by unwillingness or inability of the authorities concerned to carry out the proceeding genuinely (second step)” (para. 154). According to the Prosecutor, the UK authorities had both acted to investigate these alleged abuses and had shown a genuine willingness to investigate.  

First, the Prosecutor detailed in this Report how the UK authorities had shown action regarding the investigation of their troops’ alleged abuses in Iraq.  The Report explained that the UK authorities established the Iraq Historic Allegations Team (IHAT), whose original mandate was to investigate cases of alleged death or ill-treatment of Iraqis in British custody.  IHAT had an initial caseload of 165 cases, and it was supposed to conclude its work by November 2012. Over time, IHAT’s caseload expanded dramatically,  as new allegations of death or ill-treatment were received and its mandate was extended first to December 2016 and then to December 2019 (as the Report explained, IHAT was deemed necessary both to discharge the UK’s duty to investigate under British law, as well as under the European Convention on Human Rights; in addition, subsequent proceedings before the ECHR in Al Skeini and others v United Kingdom confirmed that the UK Government had a duty under the European Convention to carry out an adequate and effective investigation into allegations involving British service personnel in Iraq ).  The UK considered the IHAT investigations, and potential prosecutions, as necessary to satisfy the admissibility requirements of the Rome Statute.  In early 2017, following complaints over IHAT’s duration and expense, the UK Secretary of State for Defence announced that IHAT would be closed.  Remaining investigations were taken over by a new investigative unit, known as Service Police Legacy Investigations (SPLI).  IHAT and the SPLI referred a total of nine cases to the so-called Service Prosecuting Authority (SPA), the body which had become charged with determining whether a prosecution will take place.  In all nine cases, the SPA recommended that no charges be brought against the accused individuals.  In February 2020, UK authorities explained to the ICC Prosecutor that the SPA had most likely determined not to proceed with these prosecutions because the SPA applies a higher evidentiary threshold than IHAT/SPLI, and that it was likely that lawyers at the latter “might have considered cases were ready to proceed, whereas the SPA found they were not” (para. 200). In light of all of the steps taken by the UK authorities, and despite the fact that no cases resulted in actual prosecutions, the Prosecutor concluded in this Final Report that the UK authorities had acted for the purposes of the Article 17 complementarity analysis. 

Although the initial assessment of a claim might not lead to a fully-fledged investigation being undertaken (based on the screening criteria), or an investigation or prosecution might be abandoned after a subsequent assessment, the Office considers that it is difficult to argue that the State had remained inactive in relation to such a claim, since such assessments form part of the investigative and prosecutorial process (para. 276)

Second, the Prosecutor determined in the Final Report that the UK authorities had shown a genuine willingness to investigate alleged crimes committed by their forces in Iraq. As the Prosecutor explained, the determination of unwillingness requires, “having regard to the principles of due process recognized by international law”, that “[t]he proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5” (para. 294). The Prosecutor further emphasized that the concept of being “unwilling” genuinely to investigate is “concerned with a situation in which proceedings are conducted in a manner which would lead to a suspect evading justice as a result of a State not being willing genuinely to investigate or prosecute” (para. 284). The Prosecutor thus reviewed various UK authorities’ actions in this case through the lens of willingness. Serious concerns had been raised against UK authorities, alleging that they did not genuinely intend to pursue prosecutions against their own service members and higher-level officials.  As the Final Report described, despite the fact that over 3,000 potential cases had been referred to UK authorities, the latter failed to initiate a single prosecution.  In addition, former IHAT staff members had raised concerns that this mechanism lacked proper access to evidence and to witnesses, due to UK government interference.  Finally, concerns over undue delays in the proceedings had been flagged as a potential violation of the victims’ rights; such delays, according to some allegations, were the result of the UK authorities’ purposeful policy not to seriously investigate and/or prosecute cases.  Despite such serious concerns regarding the UK government’s “willingness” to genuinely prosecute, the Prosecutor concluded that “the information available does not demonstrate a lack of willingness to genuinely carry out the proceedings, pursuant to article 17(2)(b)” (para. 433).  In fact, the Final Report emphasized that it was not sufficient for the Prosecutor to have concerns over the genuineness of a national authority’s willingness to investigate and prosecute, but that instead it must be demonstrated that such authorities acted in bad faith. According to the Prosecutor,

The primary task of the Office is not to express its view on how it might have proceeded differently in the circumstances, nor to identify areas of disagreement with IHAT/SPLI and SPA’s decision-making and operational assessments of whether cases presented a realistic prospect of obtaining sufficient evidence at the investigative stage or a realistic prospect of conviction to support a prosecution. Nor is it the Office or the Court’s mandate to pronounce on whether a State complied with its duties to provide an effective remedy and fulfilled its procedural obligation to give effect to fundamental human rights enshrined in instruments such as the ECHR. The question is whether there is evidence to establish that the State concerned was unwilling to investigate or prosecute (para. 458).  

In sum, the Prosecutor concluded that the case of Iraq/UK was inadmissible under Article 17’s complementarity requirement, because the UK authorities had sufficiently demonstrated that they had acted to investigate and that they were genuinely willing to investigate.

Potential Impact of the Final Report on the ICC’s Legitimacy

It is possible, and relatively easy, to criticize some of the Prosecutor’s findings, particularly on “willingness” grounds.  It could be argued that the record established sufficient evidence that the UK authorities had reluctantly established IHAT and subsequent mechanisms; that they interfered with the mechanisms’ access to evidence; that they caused undue delays and demonstrated a significant bias against initiating any prosecutions – in sum, that they acted purposefully to shield their own service members and officials from any possibility of prosecution.   Yet, while such concerns are serious, the more fundamental issues raised by this decision to close the Iraq/UK investigation involve future cases and the ICC’s legitimacy.

In light of this decision, it may become relatively easy for other powerful states to evade the ICC’s reach by launching their own “genuine” investigations which result in zero prosecutions.  States such as the United States and Israel may welcome the court’s analysis of complementarity in this Final Report and its conclusion that the UK has been “willing” to prosecute its own soldiers and officials, despite a decade-long investigation which has yielded no cases. Complementarity may become a shield in and of itself, despite the fact that complementarity is actually supposed to ensure that perpetrators aren’t shielded from ICC’s prosecutorial reach. If states are able to avoid the ICC on complementarity grounds in the future, this could seriously undermine the court’s legitimacy. The ICC was established in order to ensure that accountability is imposed on perpetrators of atrocities; despite its relatively weak prosecutorial record, judicial squabbles on its bench, several state withdrawals from its jurisdiction, and some powerful states’ open hostility, the Court could be objectively defended in light of the importance of its fundamental mission.  The imposition of accountability on those who commit genocide, crimes against humanity, or war crimes is objectively one of the most important goals of international criminal justice; an imperfect institution which nonetheless contributes to this goal remains important and legitimate.  If the ICC were to become an easily-avoided forum, which states can bypass by launching sham but “genuinely willing” investigations, then the Court’s fundamental purpose comes into question.  In such circumstances, it becomes difficult to continue to defend the ICC.  For those of us who believe in the pursuit of international justice and in its institutions, including the ICC, the possibility of this type of a complementarity-based challenge to the court’s legitimacy is troubling.

The next step for the International Criminal Court: Mandatory trainings on sexual and gender-based crimes for all judges

/ Dorine Nauleau & Julia Tétrault-Provencher / Leave a comment

In a report published on September 30, 2020, the Independent Expert Review (IER) raised their concern “about the possible lack of experience, knowledge and interest in international criminal law of some judges”. The same day, the Advisory Committee on the Nomination of Judges (ACN) also released its report, evaluating the suitability of the nominees for the position. A few days later, candidates’ answers to a questionnaire prepared by States Parties were shared. In analysing those different documents, we noticed that several judicial nominees generally lacked experience and/or understanding of what sexual and gender-based crime (SGBC) entailed.

We therefore welcome the IER’s recommendation R174 that the “Presidency should design and organise a compulsory, intensive and comprehensive Induction Programme of sufficient duration for new Judges” that would be tailored to each judge and cover SGBC. The same holds true for the Continuing Professional Development Programme, also proposed in the report. It is now for the Assembly of States Parties (ASP) to make these written recommendations a concrete reality that will be beneficial not only for the Court, but also first and foremost for SGBC victims and affected communities.

This post explains the reasons why we need to have a Bench that has experience in and knowledge of SGBC. It supports the call for mandatory training of judges on this subject.

1. The Imperative: Rights of the victims and Quality of the decisions

The Rome Statute is a progressive instrument offering the necessary tools to put an end to the impunity of SGBC. What we now need are judges who know how to use this tool effectively.

However, this year’s list of candidates speaks for itself: out of the twenty candidates, twelve claimed to have experience handling SGBC cases. From those twelve, five seemed to understand SGBC from the limited prism of domestic violence against women and/or children, or that sexual violence occurs against women; their answers utterly failed to explicitly acknowledge that men and boys could also be victims of SGBC. Only four candidates demonstrated experience in dealing with gender-based violence.   

This is problematic. Judges should hold a basic knowledge of SGBC for, at least, two reasons: to uphold victims’ rights and maintain the quality of the decisions.

The Rome Statute is unequivocal: victims should be put at the centre of ICC proceedings. However, when victims of SGBC face a Bench that has no prior experience or knowledge of SGBC, their right to participate is affected. First, judges play an essential role in ensuring that victims do not suffer from secondary victimisation during the proceedings. Second, as shown in the ICC’s first reparation case (Lubanga), a Bench that lacks a gender perspective and understanding of SGBC is more at risk of making reparation orders that will fail to be effective for and inclusive of SGBC victims.

The lack of knowledge regarding SGBC may also undermine the legitimacy of the Court and the quality of its rulings. The ICC has already been criticised for its decisions that lacked a sensitisation to SGBC (see here and here). While the onus for including SGBC in criminal charges  is on the Office of the Prosecutor (OTP), a Bench that does not have a knowledge of SGBC or is tainted by stereotypes will certainly not contribute to the successful prosecution of these crimes. This affects the entire proceedings, from the confirmation of the charges (see Bemba, Katanga and Ngudjolo cases where charges of SGBC were not confirmed due to the judges’ misunderstanding) to the sentencing  (see Judge Odio Benito dissenting opinion  on her colleagues’ failure to consider sexual violence).

2. The solution: Providing mandatory training for judges on SGBC

The candidates’ lack of knowledge and expertise related to SGBC is deeply problematic considering that, if elected, they are likely to rule over cases of SGBC during their nine-year mandate. In its 2019 report on preliminary examination activities, out of the nine situations that were under examination by the OTP, eight were situations where the OTP had a reasonable basis to believe SGBC had been committed.

We support the call for mandatory judicial training on SGBC at the ICC. Its importance cannot be overstated. The International Organisation for Judicial Training emphasised that judicial training is “essential to ensure high standards of competence and performance”. Even the ICC Code of Judicial Ethics calls on judges to take “reasonable steps to maintain and enhance the knowledge, skills and personal qualities necessary for judicial office”. And, although mandatory training was not a topic addressed by the ACN, it still formed part of the many issues addressed by the IER report (see para.417 of the report).

As explained by the Justice Initiative in June 2020, “the ICC presents a new, unfamiliar legal framework for most incoming judges”. The IER also reported that the ICC “has many distinctive features not repeated elsewhere”. Newly elected judges may not be familiar with the Rome Statute system, as it is one of a kind—the possibility to adjudicate gender-based crimes being an example of its peculiarity.

The Paris Declaration of 2017 advocates for the training of international judges. In several countries (e.g., Canada, the US, Malawi and the UK), judicial trainings are attended by judges. Belgium’s awareness of the lack of its judiciary’s knowledge on sexual violence even led to the adoption of a law making it mandatory for judges to partake in training on sexual violence.  The ICC must follow this practice and organise mandatory trainings on SGBC for its judiciary.

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We understand that some judges may be resistant to the idea of receiving judicial training. Some of them might “find continuing professional development an anathema to the standing of a judge of an international criminal court” as noted by the IER. However, in an era where SGBC is a clear component of armed conflicts, the poor record of successful prosecution of SGBC before the ICC is no longer acceptable—especially when part of the solution could come simply from a better understanding from the Bench. This is a fair and necessary requirement for those who want to serve on the criminal court that the whole world has its eye on (for better or worse).

The Black and White Campaign in Turkey and its Repercussions Amidst Rising Femicides and an Increasing Hostility Towards the Istanbul Convention

/ Indrasish Majumder / Leave a comment

Pinar Gültekin a 27-year-old University student was brutally beaten and burned to a crisp by her ex-boyfriend on 21stJuly 2020 in Turkey adding to the country’s long list of femicides. The victim was reported missing for six days before being found dumped in a bin strangled to death by her former partner for disagreeing to reconcile with him. 

While the news of Gültekin’s death ignited demonstrations all across the country and women and men alike took to the street’s, the death of Pinar and similar atrocities against women in Turkey inevitably raises a few questions. What should happen when a 27-year-old girl is strangled to death and burned to a crisp by her ex-partner? What are the repercussions of a mother being stabbed to death by her husband in a café in front of her child? What happens when a girl is stabbed and burned to her death because she resists rape? What happens when the mysterious death of an eleven-year-old girl is deemed “suicide” by the judiciary. Maybe the answer to the above-mentioned questions lies not in what happens but how it happened or who/what perpetrated the incidents. While the atrocities may be perceived by some as interpersonal their prevalence only against a particular section of the community indicates towards an institutionalisation of violence abetted by a chauvinist patriarchal society. 

Violence against women existed long before the expression “femicide” was devised in 1976 by Diana E. Russell at the first “International Tribunal on Crimes Against Women in Brussels, Belgium”. While the term is defined by the “United Nations Office in Drugs and Crime”as the gender-based homicide of women it not just refers to the killing of women but condones an entire system of Judicial administration that fails to safeguard the women and prosecute the perpetrators. The concept is similar to “rape culture” except applying only in cases of murder concerning a women’s sexual orientation, indigenous identity, dowry-related issues. However, contrary to majority perception the acts under no circumstances are unrelated and spasmodic but is abetted by a chauvinistic society exhibiting unequal power structures and conventionally defined gender roles where women often find themselves pushed to the margins. Encouraged by Right-Wing Populist Parties the above-mentioned manifestations of violence against women in Turkey has increased exponentially over the decades.

The misogynistic heteronormative dogmas embedded in the social fabric of Turkey gets exemplified by the Global Study on Homicide, 2018 conducted by the “United Nations Office on Drugs and Crime” which reportedly delineated the death of 89,000 women in Turkey in 2017. Turkey has been ranked114 of 167 countries in the “Women, Peace and Security Index, 2019” and 130thof 149 countriesin “WEF’s the Global Gender Gap Index, 2020”. The data is at face value enough to glean the status and treatment of women in the country. 

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China’s Liability for Uighur Genocide Under International Law- Part I

/ Vaishnavi Chaudhry / 1 Comment

Introduction

In the past few months, there has been an increased focus on China’s treatment of Uighur Muslims in the north-western city of Xinjiang.  Beijing has employed an elaborate policy that seeks to prevent Uighur Muslims from practicing their religion as well as their culture. Under the pretence of re-educating the community, the Chinese authoritarian regime has detained Uighur Muslims in internment camps where they are being subjected to physical and mental torture on a regular basis. During the course of their detention, Uighur Muslims are being forced to commit acts that are in violation of their religious beliefs. Moreover, Beijing has been using its influence and economic power to bring back Uighur Muslims who have been living abroad or fled from Xinjiang so as to ensure that they are unable to practice their religion as well as raise their voice against the mass detention of their community. Once they are forcefully brought back, they are subjected to widespread torture that amounts to human rights violations. This systematic oppression of the Uighur Muslim community has been termed by many as ‘cultural genocide’.

 For a long time, the deplorable situation of Uighur Muslims was ignored by the international community. However, due to changing political considerations and rising anti-Beijing sentiment due to the Covid-19 pandemic, several countries including the US have called out Beijing over its treatment of the Uighur Muslim Community. Moreover, in an effort to seek justice for the Uighur Muslim Community, two Uighur activists groups known as the East Turkistan Government in Exile and East Turkistan National Awakening Movement have filed a complaint against People’s Republic of China before the International Criminal Court.

The complaint has been filed against top leaders of the Chinese Communist Party officials on the grounds that China’s detention of Uighur Muslims amounts to genocide and crimes against humanity. It is worth noting here that the Uighur exiles are being represented by a group of leading international lawyers based in London. According to Anne Coulon, one of the lawyers working on the case, the team is “in possession of overwhelming and very serious evidence that can support charges of crimes against humanity and genocide against Chinese Officials”. She further noted that “The seriousness of the alleged acts is such that the prosecutor should open an investigation”.

The purpose of this article is twofold: firstly, it shall discuss whether there are sufficient grounds to hold China accountable for genocide as well as crimes against humanity under public international law, and secondly, it shall attempt to establish whether China can be brought before the ICC.   

China’s Obligations under International law

Even though religious freedom is guaranteed under Article 36 of the Chinese constitution, it is impossible for Uighur Muslims to seek constitutional relief under the authoritarian regime of the Chinese Communist Party. In such a scenario, international law seems to be the only legal recourse available to the Uighur Muslim Community.

China is a state party to the 1948 Convention on the Prevention and Punishment of Crime of Genocide. Under Article I of the convention, state parties to the convention are required to punish and prevent genocide under international law. Apart from the Genocide Convention, China is also a state party to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESR). Article 20 and Article 27 of the ICCPR provide safeguards against religious discrimination. Similarly, Article 13(3) of the ICESR provides for the parent’s right to educate their children in accordance with their religious beliefs.

Under the Rome Statute, China can be held liable for its treatment of Uighur Muslims as per Article 6 and Article 7. Article 6 of the Rome Statute defines genocide by listing several acts such as killing, sterilization etc that are “committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group”. Similarly, China can be held liable for Crimes Against Humanity under several provisions of Article 7 of the Rome Statute. However, China is not state party to the Rome Statute and that prevents ICC from exercising jurisdiction over the crimes. The next part will analyse whether there is a way through which the international criminal court can exercise jurisdiction over the crimes or not.

VP Biden’s Ambitious Agenda for Women

/ Beth Van Schaack / Leave a comment

The presumptive U.S. Democratic presidential candidate, former Vice President Joe Biden, has released his “Agenda for Women.”  It’s a tour de force of dozens of key policy priorities, both domestic and international, focused on advancing women’s rights at home and abroad.  Some key takeaways in the national security and human rights space are outlined below along with some areas where additional attention would be welcome:

ERA YesOne Biden’s his core pledges is to advocate for Congress to recognize that the necessary ¾ of the states have ratified the Equal Rights Amendment (the ERA). First introduced in 1923, approved by Congress in 1972, and then sent out to the states for ratification with a deadline of 1979 (later extended to 1982), the ERA received its 38th ratification in January 2020 when Virginia finalized its ratification. Litigation over whether the time limits placed on ratification by Congress are constitutional has been proceeding in several courts (with one suit filed by Equal Means Equal being dismissed  earlier this month for lack of standing). The House passed a resolution that eliminates the putative deadline; so far, there has been no comparable action in the Senate. The Alice Paul Institute—named for the Quaker suffragist who authored the ERA after being instrumental in gaining passage of the 19th Amendment giving women the vote—offers a history of the amendment here. Prof. Julie Suk’s take on why it failed before and how it can succeed is here. Biden co-sponsored the ERA nine times while in Congress. President Donald J. Trump, on the other hand, has opposed the lawsuits, including one  brought by three states attorneys general (Virginia, Nevada, and Illinois) to add the ERA to the U.S. Constitution.

On the multilateral plane, Biden will seek ratification of the Convention on the Elimination of Discrimination Against Women (CEDAW), a treaty dedicated to global women’s rights. Nearly all U.N members have ratified this treaty (in holding out, the United States enjoys the company of Iran, Somalia, and Sudan and a couple of small island nations—see map below). The Senate Foreign Relations Committee has debated the treaty several times, but so far the full Senate has refused to give its advice and consent to ratification, in part due to unfounded fears the treaty will be cited to promote abortions and prostitution and will undermine U.S. sovereignty. Several U.S. cities and municipalities, including San Francisco, have adopted ordinances and policies in keeping with the treaty and the “human rights cities” movement. 1200px-CEDAW_Participation.svg

When it comes to reproductive rights, Biden calls for the repeal of the 1976 Hyde Amendment, which bans U.S. federal funds (mainly Medicaid) from paying for abortions (except in cases in which the pregnancy results from rape or incest or if the woman’s life is endangered by the pregnancy). The Amendment disproportionately impacts low-income women and women of color. This marks a welcome reversal from Biden’s stance at an early Democratic debate during the primary race.  A bill to repeal the Amendment, known as the EACH Woman Act, is working its way through Congress.

Biden would also rescind the so-called “Mexico City Policy” (a.k.a. the global gag rule) that President Trump reinstated but in a more far-reaching form. Withdrawing this ruleGlobal Gag Rule would enable the federal government to support civil society organizations engaged in global health efforts around the world, even if recipients provide information on safe and legal abortion services as part of their public health work. Remarkably, as one of his first moves as President, Trump, flanked by a phalanx of beaming white men, dramatically expanded the policy. Heralding the vindictiveness that has so characterized this administration, this move followed on the heels of hundreds of Women’s Marches that drew millions around the world into the streets (my dispatch is here) and a campaign that repeatedly revealed his deep-seated misogyny. Reversing the global gag rule should be an urgent priority: research has shown that the policy dramatically undermines women’s health and, paradoxically, leads to increased abortion rates in developing countries. Although this move can be accomplished by executive action, the Global Health, Empowerment, and Rights (HER) Act (currently in the Committees on Foreign Relations and Affairs) would prevent future Republican presidents from reinstating it again.

Furthermore, as part of his broader immigration platform, Biden promises to dedicate himself to immigration reform and undo the Trump administration’s harshly punitive policies. This includes: reopening the United States to refugee resettlement (raising the admissions cap to 125,000), re-establishing a humane and expeditious asylum process for people fleeing persecution, and reinstating asylum protections for people who are escaping domestic and sexual violence. The latter requires the reversal of a decision by then-Attorney General Jeff Sessions to invoke a rarely used power and overturn a Board of Immigration Appeals decision that had allowed such survivors to demonstrate persecution on the basis of their membership in a “particular social group”—one basis for receiving refugee status. Biden will also increase the number of visas for survivors of domestic violence under the Violence against Women Act (VAWA) and for victims of crime (so-called U-visas), and expedite the process for granting these and related immigration benefits, including T visas for victims of human trafficking. It will not be enough, however, to simply dismantle these cruel Trump policies; rather, Biden should develop ways to repair the harm done, including through providing psycho-social rehabilitation to children and families traumatically torn asunder and placed in inhumane detention conditions. Biden should also explore the implementation of restitutionary immigration benefits, such as expedited pathways to asylum and family reunification.

In addition to issuing a whole plan devoted to ending violence against women, Biden has endorsed passage of the International Violence Against Women Act (IVAWA), which would make ending the epidemic of violence against women worldwide a key foreign policy priority. The proposed legislation recognizes that

“Rape and sexual assault against women and girls are used to torture, intimidate, and terrorize communities. Rape and sexual assault are used as tools of war in conflict zones, including the Democratic Republic of the Congo, Iraq, Syria, Afghanistan, El Salvador, and South Sudan.”

If enacted, the IVAWA would commit the United States to helping women and girls who are victims of violence to gain access to justice. The timing of this will be crucial; women everywhere are experiencing higher levels of domestic violence while suffering from reduced access to protective services due to the Covid-19 pandemic. These commitments reflect the fact that Biden co-authored the U.S. Violence Against Women Act in 1994 (one of the legislative achievements of which he is most proud) and helped pass the William Wilberforce Trafficking Victims Protection Reauthorization Act, which strengthened the United States’ anti-trafficking framework.  Biden released a statement on the World Day against Trafficking in Persons, July 30th, setting forth his anti-trafficking priorities.

This focus on ending VAW globally is part of Biden’s larger Women, Peace & Security (WPS) plank that will focus on supporting women’s leadership globally. This includes full implementation of the Women, Peace, and Security Act, passed by Congress in 2017, which is premised on research that including women in conflict prevention efforts, peace building processes, and post-conflict governance helps to reduce conflict and instantiate stability. The Act mandates a government-wide strategy to increase the participation of women in peace and security operations and to support transitional justice and accountability mechanisms that reflect the experiences of women and girls. 1_Qz_BwcroQlTViHAMkaJswgThe Act responds to a suite of resolutions emanating from the U.N. Security Council to the same end (starting with Resolution 1325) and builds on the United States’ National Action Plan on WPS, which was released in 2011 and then strengthened in 2016. Both plans call for effective measures to investigate sexual and gender-based violence and to bring those responsible to justice. The Trump Administration has only haltingly implemented the WPS Act, while taking a number of concrete steps in the opposite direction, as demonstrated by Ambassador Don Steinberg, who once led USAID.

Biden’s Agenda for Woman contains a whole slate of economic pledges, underscoring a recognition that economic security is a women’s issue just as much as reproductive rights or the imperative to end gender discrimination. These include support for a number of pieces of draft legislation, including:

Biden has also drawn attention to the need to better support caregivers, particularly in the Covid-19 era. The Agenda announces a whole array of measures in the health, education, and economic sectors for LGBTQI+ individuals (indeed, the list of policies to be reversed vis-à-vis this community is regrettably a long one), as well as disabled, incarcerated, native, immigrant, and veteran women and women of color.

Finally, consistent with an Obama-era Executive Order, Biden has also pledged to ensure his political appointees, and the entire federal workforce, reflect the diversity that is America. Besides his intention to choose a woman Vice President and an African American women for the Supreme Court, he also committed to work for gender parity as he builds his foreign policy and national security teams, a campaign launched by the Leadership Council for Women in National Security (LCWINS) at the start of the election season. The commitment—which other Democratic candidates also adopted—is based not only on legitimate concerns for gender equity but also on consistent research that diverse teams are stronger, more effective, and more creative. This imperative is echoed by organizations such as Women of Color Advancing Peace, Security & Conflict Transformation (WCAPS), the Athena Leadership Project, and Women in Defense (WID).

All this may explain why polls have VP Biden up 25 points over Donald Trump with women as a whole—an historic margin. This is notwithstanding Trump’s pandering to “The Suburban Housewives of America,” perhaps because Biden’s numbers are also higher in suburban polls. To be sure, gender has always been—and likely will be—an issue on the campaign trail, but the disparity between the two candidates could not be more stark.

 

Book Launch: Legal Limits to Security Council Veto Power (Jennifer Trahan)

/ Milena Sterio / Leave a comment
Please join us for this exciting book launch next week!
BOOK LAUNCH EVENT:  Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (Cambridge University Press 2020), co-sponsored by the American Society of International Law International Criminal Law Interest Group and the American Branch of the International Law Association United Nations Committee
Join leading experts in the field discuss Professor Jennifer Trahan’s new book which examines the legality of the use by a permanent member of the UN Security Council of its veto while there is ongoing genocide, crimes against humanity, or war crimes.
Thursday, July 23, 12:00 p.m. – 1:30 p.m. EST (zoom link below)
Panelists:
Jennifer Trahan, Clinical Professor and Director of the Concentration in International Law and Human Rights, NYU, Center for Global Affairs
Richard Goldstone, founding Prosecutor, International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda
Beth Van Schaack, Leah Kaplan Visiting Professor of Human Rights, Stanford Law School
Michael Scharf, Co-Dean and Joseph C. Hostetler – BakerHostetler Professor Of Law, Case Western Reserve School of Law
Moderator:  Milena Sterio, Charles R. Emrick Jr.-Cafee Halter & Griswold Professor of Law; Director, Domestic and International LL.M. Program, Cleveland-Marshall College of Law
Topic: Professor Jennifer Trahan Book Launch
Time: Jul 23, 2020 12:00 PM Eastern Time (US and Canada)
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Meeting ID: 979 1692 3543
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