In this week’s review, news about submissions and appeals on the PTC Afghanistan investigation decision, UNSC Res on missing persons in conflict, CCR complaint on US interference with the ICC, alleged crimes in Darfur and the need for peacekeepers and more
ICC PTC decision on receiving submissions after victims groups appeal & amicus requested for Afghanistan investigation decision
Lawyers representing different groups of victims and a group of NGOs have filed submissions seeking to appeal the recent decision of the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) regarding the situation in Afghanistan. On 12 April 2019 the PTC unanimously rejected the Office of the Prosecutor’s (OTP) request to open an official investigation into alleged crimes against humanity committed by the Taliban and alleged war crimes committed by Afghan National Security Forces and the US military and Central Intelligence Agency. The concurring opinion of Judge Antoine Kesia-Mbe Mindua was subsequently released on 31 May 2019. On 7 June 2019, the OTP requested leave to appeal the PTC’s decision.
The filings included:
(1) The Office of Public Counsel for the Victims filed a request asking for standing to make general submissions on the three issues identified by the OTP on their request to appeal: Specifically, the Pre-Trial Chamber’s assessment of Articles 15(4) and 53(1)(c) as they relate to the ‘interest of justice’; the PTC’s exercise of discretion in relation to those provisions; and the PTC’s understanding of the scope of any investigation it may authorise in light of Article 15.
(2) The Legal Representatives for 82 Victims filed Notice of Appeal under Article 82(1)(a) and Request for Leave to Appeal under Art 82(1)(d) under two separate documents. The Request for Leave to Appeal identified 6 appealable issues namely: (a) Whether the PTC has jurisdictions to review the OTP’s assessment of ‘interests of justice’; (b) Whether the PTC may consider the extent of cooperation of a state party in determining if duty to cooperate had been fully triggered; (c) Whether the PTC may deny a request to open an investigation on the basis it believes that investigation to be unfeasible; (d) Whether the PTC may restrict the scope of an investigation to the matters set out in the OTP’s request; (e) Whether the PTC nay deny a request for authorisation on the basis it believes that the OTP should focus on other investigations it considers more likely to lead to trial; (f) On the limits of the territorial jurisdiction of the war crime of torture, cruel treatment and inhumane treatment.
(3) The Legal Representatives for 6 Victims filed a Notice to Appeal under Article 82(1)(a), directed against the whole of the PTC’s decision indicating it will challenge the conclusions of the Pre-Trial Chamber with regards to jurisdiction and its application and interpretation of “interests of justice,” in a full appeal brief to be filed within 21 days.
(4) The Legal Representative for Victim r/60009/17 filed a Notice of Appeal under Article 82(1)(a) concerning the issue of jurisdiction, specifically alleging that the PTC erroneously determined that “alleged war crimes whose victims were captured outside Afghanistan fall out of the Court’s jurisdiction due to the lack of the nexus with an internal armed conflict which is required to trigger the application of international humanitarian law as well as the Court’s jurisdiction.”
(5) The amicus curiae request from Human Rights Organisations in Afghanistan was filed on behalf of The Afghanistan Human Rights and Democracy Organization, Afghanistan Human Rights Organization, Afghanistan Forensic Science Organization, Feminine Solidarity for Justice Organization, and Afghan Victims’ Families Association. The request states that, if leave were granted, the organisations would make submissions stating that: (a) victims of international crimes in Afghanistan and Afghan society generally favour an appeal; (b) an appeal is necessary to accord fair treatment to Afghan victims; and (c) the issues certified for appeal should allow for observations on matters relevant to Afghan victims and Afghan society.
On 12 June, the Pre-Trial Chamber issued a decision which found that, given the complexity of the issues at stake, receiving additional submissions on the issue may aid the Chamber in determining the Prosecutor’s request, and ordered that these be submitted by 12 July 2019. These submissions came after the 12 April 2019 rejection by the PTC to authorise the Prosecution’s request to initiate an investigation in Afghanistan.
Along with the PTC’s decision, two victim’s groups filed further submissions concerning the Prosecutor’s appeal of the PTC’s 12 April decision. The first submission filed jointly by the respective Legal Representatives of Victims (LRV) identified two key issues – the standard of review and the victims chance to be heard before a decision was made. The second victims’ group, submitted a Response to the Prosecutors Leave to Appeal on behalf of ‘Cross-border Victims’ based in Pakistan who were either personally injured or had family who were either injured or killed by cross-border air-strikes launched from Afghanistan into Pakistan in connection to the Afghan conflict. The Office of the Prosecutor also submitted that the Appeals Chamber dismissed without prejudice the submissions made to it by various victim’s groups and the OPCV, requesting instead that the material aspects of these submissions be received by the PTC.
(OPCV filing; Notice of appeal for 82 Victims; Leave to appeal for 82 Victims; Notice of appeal for 6 Victims; Notice of appeal for Victim r/60009/17; NGO amicus request; PTC Decision; Victims response to Leave to Appeals, Response by Cross-Border Victims; OTP Submission to PTC; OTP Submission to AC)
UNSC adopts resolution on missing persons in armed conflict, first of its kind
In an effort to resolve the issue of the escalating number of the missing reported during conflicts, the UN Security Council, has adopted a Resolution on missing persons in conflict. The Resolution was initiated by Kuwait, which is currently presiding over the Security Council. Member States are primarily reminded of their legal duty under international humanitarian law to report missing persons. References were made to the ICC’s Rome Statute, which includes forced disappearances as a crime against humanity. At the same time, the Resolution urges the member states to prevent the disappearances in the first place, before the conflict is over, and before the scale of atrocities requires a search for mass graves. The President of the ICRC, addressing the Security Council, said that “the pain of uncertainty infects whole communities, lasting decades, preventing societies from reconciling.” The ICRC and the UN called for greater state cooperation in investigations and the prevention of atrocities.
They also called for those countries that have not done so yet to accede to the Additional Protocols I and II of the Geneva Conventions. They encouraged member states to exchange knowledge in investigating the disappearances, especially about forensic investigations. The Resolution offers a number of concrete steps on how to investigate effectively, including preventing the deliberate mishandling of remains. The Security Council emphasized the progress, and programmes in place which offer a wealth of scientific resources in DNA identification, including ICRC’s newly launched Missing Persons project. The situation of missing persons is dire, especially in countries like Syria. The ICRC reported that it has thus far received around 10,000 requests for assistance in finding the missing there, while in Nigeria it had received up to 13,000. The situation is still perilous in Myanmar, South Sudan, Venezuela, Iraq and Yemen. Clarification of the status of a large number of the disappeared people is pending in countries and regions that experienced conflicts decades ago, such as the Balkans, Nepal or Colombia. (UN SC Press; Passblue; Human Rights Watch)
CCR files complaint to UN Special Rapporteur on the Independence of Judges and Lawyers requesting an investigation into US interference into ICC operations
The Center for Constitutional Rights, a US-based NGO, has filed a complaint with the United Nations Special Rapporteur on the Independence of Judges and Lawyers. It is requesting a comprehensive and independent investigation into the US interference with the ICC with regards to the opening of the situation in Afghanistan. The Center has requested the Special Rapporteur to specifically investigate US policy towards the ICC and the impact of the US government’s involvement on the final decision by the ICC Pre-Trial Chamber. It unanimously rejected the OTP’s request to open investigations into alleged crimes against humanity committed by the Taliban and alleged war crimes committed by Afghan National Security Forces and the US military and Central Intelligence Agency. The PTC decided that opening the investigations would not be in the interests of justice. The Center for Constitutional Rights, however, cited threats made by the Trump administration against the ICC staff as a reason for PTC’s dismissal of the Prosecution’s request. The Center’s Senior Staff Attorney stated that in failing to investigate powerful states for committing crimes, the ICC fails to fulfil its mandate. The ICC Prosecutor, Fatou Bensouda, requested the opening of the investigation in October 2017. Several months into the awaited delivery of the decision, several US government officials published threats against the ICC staff, including threats of prosecution and denial of visas to enter US territory. (Eurasia Review)
Rights Groups Urge Peacekeepers to Remain in Darfur Amid New Evidence of alleged Government War Crimes
Human rights groups have urged the joint UN / African Union peacekeeping force in Darfur (UNAMID) to delay their withdrawal in order to protect civilians. UNAMID’s mandate is up for renewal at the end of this month and areas controlled by peacekeepers are already being handed back to the transitional authorities, the Rapid Support Forces (RSF). However, Human Rights Watch and Amnesty International have called upon the Security Council to pause any further handbacks and to delay the withdrawal of the mission, due to evidence of human rights violations by the RSF including killings, sexual violence and destruction of villages.
The timeline for the withdrawal of the mission was set down before President Omar al-Bashir was removed by the RSF and a vote on the mission’s future will be held on 27 June. The ICC has had a warrant out for Bashir’s arrest since 2009 and he is accused of war crimes, crimes against humanity and genocide. Despite being removed from office in April, Bashir remains in Sudan. (Human Rights Watch, Amnesty International)
Rights Group Identifies 300+ Public Execution Sites in North Korea
A South Korean human rights organisation, the Transitional Justice Working Group, has released a report detailing the discovery of 318 sites used by the North Korean government to carry out public executions. Some executions occurred inside forced labour camps, while others occurred near schools, sports grounds and markets. The report includes evidence from defectors, who say that family members and other people were routinely forced to watch the executions and were told ‘this could happen to you.’ There is some evidence that public executions are declining, however one of the report’s authors has cautioned that Pyongyang may simply be operating more secretively ‘as it seeks recognition as a normal State.’ (BBC)
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