In this week’s review, news about the ICC conviction of Bosco Ntaganda, beginning of Al Hassan confirmation hearings, disqualification motion by the Al Hassan defence, amicus and victims submissions on Afghanistan appeal, draft principles of environmental protection, a statement on the treatment of migrants in the US and more
ICC TC enters judgment finding Ntaganda guilty of 18 counts of CAH and War Crimes
On 8 July 2019, Trial Chamber VI of the ICC found Mr Bosco Ntaganda guilty, beyond reasonable doubt, of 18 counts of war crimes (murder and attempted murder, intentionally directing attacks against civilians, rape, sexual slavery, ordering the displacement of the civilian population, conscripting and enlisting children under the age of 15 years into an armed group and using them to participate actively in hostilities, intentionally directing attacks against protected objects, and destroying the adversary’s property) and crimes against humanity (murder and attempted murder, rape, sexual slavery, persecution, forcible transfer and deportation). These crimes were committed in Ituri district, DRC between 2002-2003. The Chamber observed that this was a period of time during which the Union des Patriotes Congolais [Union of Congolese Patriots] (UPC) and its military wing, the Forces Patriotiques pour la Libération du Congo [Patriotic Force for the Liberation of Congo] (FPLC), both bodies in which Mr Ntaganda fulfilled a very important military role, was at all times involved in at least one non-international armed conflict with an opposing party in Ituri district. The Chamber found that Mr Ntganda was directly liable for parts of the charges of three of the crimes (murder as a crime against humanity and a war crime and persecution as a crime against humanity) and an indirect perpetrator of the remaining crimes.
A warrant of arrest was first issued for Mr Ntaganda on 22 August 2006 and again in 2012. He voluntarily surrendered to the Court on 22 March 2013 and the trial opened on 2 September 2015 and closed on 30 August 2018. (ICC TC Ntaganda Judgment)
Al-Hassan confirmation of charges hearing begins
The Confirmation of Charges Hearing (CCH) in the matter of The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud commenced on 8 July 2019 before Pre-Trial Chamber I of the International Criminal Court (ICC). The purpose of this hearing is for the judges to determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged in the Document Containing the Charges. If the charges are confirmed then the matter will be transferred to a Trial Chamber for trial. Mr Al-Hassan is facing charges of war crimes and crimes against humanity allegedly committed in 2012 and 2013 in Timbuktu, Mali. A warrant for his arrest was issued on 27 March 2018 and he was surrendered to the court on 31 March 2018. In her opening statement before the court, ICC Prosecutor Fatou Bensouda outlined the violent acts allegedly committed against the civilian population of Timbuktu, including violent punishment administered by irregularly constituted tribunals, religious persecution and gender-based persecution. She also outlined the type of evidence that will be submitted to the chamber in support of the charges. Prior to the commencement of the CCH, Mr Al-Hassan requested the disqualification of Judge Marc Perrin de Brichambaut based on perceived bias associated with the judge’s professional membership in French societies which aim to further France’s military objectives. This request was dismissed by a Plenary of ICC Judges on 3 July 2019, with a reasoned decision to follow.
Al Hassan defence requests disqualification of Pre-Trial Chamber I
On 11 July 2019, the Defence for Mr Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud filed an urgent request to disqualify the entire current composition of Pre-Trial Chamber I of the International Criminal Court (ICC) from hearing his case. In their submission, the Defence highlighted several reasons why disqualification was necessary. Most prominently, the Defence raised concerns as to Judge Alapini-Gansou’s prior involvement in domestic investigations relating to Mr Al Hassan, and that the Pre-Trial Chamber had failed to take adequate steps to protect the impartiality of proceedings with regard to this issue. The Defence argued that Judge Alapini-Gansou’s involvement in prior investigations fundamentally undermined the appearance of impartiality in this case. The Defence raised further issues about Judge Kovács’ and Judge Alapini-Gansou’s involvement in a Plenary decision relating to the Al Mahdi judgment and its relation to the Al Hassan case. The Defence underscored the need for Mr Al Hassan to be judged at all stages of proceedings by a Tribunal that was fair and impartial. (Al Hassan Defence Request).
Amicus Observations and OPCV submissions made on appeal over Afghanistan decision
Pre-Trial Chamber II (PTC) of the ICC has received two amicus observations from the non-government organisations. The Afghanistan-Transitional Justice Coordination Group (TJCG), Armanshahr/OPEN ASIA, and the International Federation for Human Rights (FIDH) submitted an amicus observation (‘Submission 1’), and there was also a separate amicus observation on behalf of 17 Afghani human rights and civil society organisations (‘Submission 2’). In addition to these two observations, the Pre-Trial Chamber received a submission made in the general interest of victims by the Office of the Public Counsel for Victims (‘Submission 3’). These submissions followed the Pre-Trial Chamber’s ‘Decision on the “Request for Leave to Submit Amicus Curiae Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence’, which arose out of determining that an investigation by the ICC into crimes allegedly committed in Afghanistan would not be in the interest of justice per Article 53(1)(c) of the Rome Statute, and therefore should not be pursued. All three submissions were made in opposition to the PTC’s decision.
Submission 1 argued for a broader interpretation of the term ‘interest of justice’. Stating that the factors taken into account when determining whether a case is in the ‘interest of justice’ should include ending impunity, providing access to justice, positive complementarity or the possibility that an ICC investigation to serve as a deterrent to further crimes. In addition to this, the submission outlined how the ‘interest of justice’ should be considered in tandem with the concept of ‘gravity’ of crimes.
Submission 2 made similar observations, while additionally to outlining how Afghan society broadly supports an ICC investigation into crimes allegedly committed in Afghanistan. The submission went on to state that victim participation in proceedings can have a positive impact on the psychological state of victims of crimes, and that ICC decisions, relating to Afghanistan, thus far have seen victims been inadequately represented.
Submission 3 by the Office of the Public Counsel for Victims first emphasised that role of the ICC as a ‘victim-centred Court’, before arguing that the PTC had no power to assess the interest of justice. Stating that only if the Prosecutor finds there are substantial grounds to believe that an investigation would not be in the interest of justice, can the PTC make a determination on this issue. Furthermore, that the interests of victims should be the core determining factor in assessing the interest of justice. (Amicus Submissions for TJCG / FIDH, Amicus Submissions for 17 HR Orgs, OPCV Submissions)
Intl Law Commission adopts draft principles on Protection of Environment in relation to Armed Conflict
The International Law Commission’s draft committee presented its third draft report on the protection of the environment during armed conflict. The provisionally adopted principles impose obligations on states as well as peacekeeping missions to prevent damage to the environment throughout armed conflicts. The draft principles outline separate obligations on states towards the environment during an armed conflict, in situations of occupation and after an armed conflict. Importantly, the draft text incorporates corporate liability and responsibility of states for holding corporations liable. The draft listed several concrete measures which states should implement. States should adopt appropriate legislative and administrative measures to enhance the protection of the environment. Under the principles, states should designate endangered and protected areas with significant cultural importance, and protect areas inhabited by the indigenous population. Corporations and businesses need to implement measures when performing their operations to protect the environment, human health and ensure that natural resources are extracted in an environmentally sustainable manner. In turn, states need to ensure that corporations and businesses under their de facto control are held liable for wrongful acts and put in place system of reparations of victims of environmental harms. Under the principles, the pillage of natural resources, modifications to the environment with a long-lasting and widespread effect are all prohibited. In post-conflict situations, states should incorporate environmental considerations into peace talks and find a way of granting and sharing access to information. (UN Draft Principles, UN Session)
Alleged IS members on trial for war crimes in the Netherlands under the principle of universal jurisdiction
In a historic move, a court in the Netherlands has started proceedings against two Dutch nationals who allegedly committed war crimes while serving as ISIS militants. Oussama Achraf Akhlafa and Reda Nidalha both allegedly joined ISIS in and around 2014. Akhlafa, 24, reportedly joined ISIS as a soldier in a sniper brigade between 2014 and 2016 in Mosul, Iraq and Raqq, Syria. He is being tried in the Netherlands under universal jurisdiction, which enables war crimes to be prosecuted regardless of where they were committed. He is charged with joining a terrorist group and with violating the personal dignity of victims. He was depicted in a picture posing next to a crucified body, the corpse of a Kurdish fighter and the dead body of a woman. Evidence recovered in Mosul demonstrates that Akhlafa’s name was listed together with another 18 Dutch nationals. He is further alleged to have volunteered to carry out suicide attacks. In his defence before the Dutch court, Akhlafa acknowledged joining ISIS because of his dire situation in the Netherlands where he was left homeless. He took responsibility for posing in the picture over the dead body, however, he denied all other charges against him. Reda Nidalha is accused of joining a terrorist organisation and recruiting fighters through Facebook to join ISIS in Mosul. He claimed to have gone to Syria to provide basic medical services and denied all charges against him. EUROPOL has estimated that around 300 Dutch nationals joined the war in Iraq and Syria. (Reuters)
UN High Commissioner for Human Rights Says US Treatment of Migrant Children May Violate International Law as Cruel, Inhuman Treatment
Michelle Bachelet, the UN High Commissioner for Human Rights, condemned the United States’ treatment of children in migrant detention camps along its southern border, stating that such detention may constitute cruel, inhuman or degrading treatment prohibited under international law. The OHCHR chief noted the report by the US Department of Homeland Security’s Office of Inspector General on the conditions in detention centres, and her shock at children being forced to sleep on the floor in overcrowded facilities, without access to adequate healthcare or food, and poor sanitation. She called on authorities to find alternatives for migrant children, arguing that border management measures were required to comply with a State’s international human rights obligations. (UN News)