Trial international

The simple way out? Why international crimes must not be prosecuted as terrorism

The fight against terrorism has become a political priority for many governments in the past years. Unsurprisingly, the judiciary has followed this trend and prosecutions for terrorism are also on the rise. But what exactly do charges for “terrorism” encompass? More importantly, what do they leave out? And paradoxically, could the increased use of terror charges threaten the prosecution of the worst atrocities?
Tank Syrian national army

Extra-Territorial Jurisdiction Update

On March 1, 2019, this Journal published a question and answer session with Terje Einarsen and Joseph Rikhof about their book “A Theory of Punishable Participation in Universal Crimes”. This book discusses extra-territorial jurisdiction in its chapter 8 with an overview of domestic jurisprudence in the area of international crimes (war crimes, crimes against humanity, genocide and torture) in 15 countries on two continents, Europe and North America, until July of 2018.
Idlib, Syria

Working Methods of the United Nations Security Council Failures in Syria

After almost nine years, the Security Council remains deadlocked on the Syrian crisis, incapable of passing any meaningful resolution. Throughout the Syrian civil war, Russia has continued to undermine its duty as a permanent Security Council member through its use of the veto power. As a result of the Security Council impasse, the General Assembly intervened by creating the International, Impartial and Independent Mechanism (IIIM) to assist in the investigation and prosecution of persons responsible for the most serious crimes under International Law committed in the Syrian Arab Republic since March 2011.
Silhouette of military soldier or officer with weapons

Afghanistan Investigation Gets the Green Light from the Appeals Chamber of the International Criminal Court

On March 5, 2020, the Appeals Chamber of the International Criminal Court decided to authorize the Prosecutor to investigate the situation in the Islamic Republic of Afghanistan by amending the Pre-Trial Chambers’s controversial decision to refuse her request to do so. This Journal commented on the lower chamber’s decision no-investigation-in-afghanistan.
Bulldozer

Is there a right to sue a corporation for breach of customary international law in domestic courts in Canada?

The Supreme Court of Canada took one step closer to testing the issue of whether individuals alleging a breach of customary international law can sue a Canadian corporation with overseas operations for a remedy at common law in Canada. In Nevsun Resources Ltd. v. Araya, the Court dismissed the appeal of Nevsun which had unsuccessfully sought to strike the claim of three Eritrean refugees who had sued it in its province of incorporation for damages based on domestic torts and for breaches of customary international law alleged to have been suffered in the operations of Nevsun at a mine in Eritrea.
The Hague Holland

Determining whether a case has sufficient gravity to be admissible at the International Criminal Court (ICC)

On February 19, 2020, the Appeals Chamber of the ICC released its decision Al Hassan Admissibility Appeal dismissing the appeal of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Al Hassan) from the Al Hassan Pre-Trial Chamber Admissibility decision which had held that his case, charging him with thirteen charges of war crimes and crimes against humanity, met the requirement under article 17(1(d) that it was sufficiently grave to be admissible before the Court.
Business woman writing information about stock market in notepad

Kevin Kolben and The Consumer Imaginary: Labor Rights, Human Rights, and Citizen-Consumers in the Global Supply Chain: Commentary and Analysis

Globalization has always been a vexing topic, especially where labour and human rights law intersect with international trade. The global supply chain economy offers opportunities to businesses and consumers to access lower prices, innovative products, and essential raw materials. Increasingly, firms are outsourcing their manufacturing and production, especially to East Asia, BRICs and developing countries, prompted by lower trade tariffs and more powerful information technology and communications. Lead firms like Apple and Nike may not make much of anything themselves anymore, but they do rely on massive, disaggregated production chains and “fissured” workplaces in other countries where labour and health standards may be considerably lower and where employees have little or no relationship with lead firms.
Phnom Penh Cambodia

National and International Judicial Interpretations of ‘Most Responsible” at the Extraordinary Chambers in the Courts of Cambodia

Last December, the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) released Considerations in three appeals from an unprecedented issuance of two conflicting Closing Orders issues by the Investigating Judges after examining the case of AO An over a period of a decade. The National Investigating Judge dismissed the case. The International Investigating Judge indicted AO An for the crimes of genocide, the crimes against humanity of murder, enslavement and other inhumane acts, extermination, persecution on political and religious grounds, torture, imprisonment and for breaches of provisions of the Cambodian Penal Code of 1956 committed during the Khmer Rouge regime in his Closing Order.
Kutupalong

The World is Watching: The International Court of Justice Orders Provisional Measures to Protect the Rohingya from Genocide

On January 23, 2020, in the case of The Gambia v. Myanmar, the International Court of Justice (ICJ or Court) unanimously ordered provisional measures on the basis of the Genocide Convention to protect the Rohingya from acts of genocide and safeguard the evidence. This order arrives in the midst of a heated sociopolitical context in Myanmar: whereas the Rohingya have been victims of appalling human rights violations for decades and have been repeatedly described as the “most persecuted minority in the world,” the Myanmar government has consistently denied the allegations (here, here and here). A few days before the ICJ order, Myanmar released the report of its Independent Commission of Inquiry, which found “no genocidal intent.” Its official reaction to the ICJ order came as no surprise, further denying the existence of a genocide.
International Criminal Court

Approaching a Convention on International Cooperation in the Investigation and Prosecution of the Crimes of Genocide, Crimes against Humanity and War Crimes

“The perpetrators of the most serious international crimes are not stopped by international borders. The example of Eichmann … is just one example, but there are many more. What to think of that other famous Nazi Joseph Mengele, who, unlike Eichmann, was never brought to justice for the crimes he committed? The current legal framework still leaves loopholes for a modern day Mengele. I’m sure that [many States have] examples of cases where effective prosecution was impeded by our inadequate system for international cooperation on these matters.”
International Criminal Court

A Prescription for Optimism – Judge Kim Prost on the Future of the International Criminal Court

Judge Kim Prost was elected as Judge of the International Criminal Court (ICC) in 2018, for a term of nine years. Due to her international expertise, Judge Prost contributed to the United Nations Convention Against Transnational Organized Crime, and the United Nations Convention Against Corruption. Judge Prost also served as a member of the Canadian delegation for the negotiation of the Rome Statute – the legislation that governs the International Criminal Court.
No violence no hate speech

Some Observations on Hate Speech in Armed Conflicts

In proceedings instituted before the International Court of Justice, The Gambia alleged that Myanmar’s treatment of the Rohingya people breached the Genocide Convention, relying in part on the expressions of hate by Myanmar as evidence of the special intent required. Professor Rikhof recently wrote an article about hate speech in international criminal law in this Journal The-ICC-and-Hate-Speech. In this article I will offer some thoughts on the hate speech in The Gambia’s pleadings, the arguments before the International Court of Justice (ICJ) and the only conviction this year at the International Criminal Court (ICC) in the Ntaganda case from a Canadian legal perspective.
Rohingya refugees entering Bangladesh

Prosecutor-initiated Investigation Authorized into Crimes Against Rohingya with Bangladesh Territorial Element

On November 14, 2019, Pre-Trial Chamber III authorized the Office of the Prosecutor to proceed with an investigation into alleged crimes committed against the Rohingya people of Myanmar. This decision flows from the September 6, 2018 novel conclusions of Pre-Trial Chamber I that the International Criminal Court (the “Court” or ICC) can assert jurisdiction over the alleged deportation of the Rohingya people from Myanmar - even though that State is not party to the Rome Statute of the International Criminal Court - to Bangladesh which is a State party.
Soldiers drive past the American Embassy

When is an alleged torturer "a person acting in an official capacity" according to the United Kingdom Supreme Court?

The United Kingdom Supreme Court (UKSC) held in R v. TRA that ‘persons acting in an official capacity’ who engage in torture contrary to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), as implemented in the UK by s. 134 of the Criminal Justice Act 1988 (CJA) as required by article 2(1) of the CAT, need not be State officials, but can be persons acting on behalf of non-State organizations which administer a locale in the capacity of de facto ‘governments.
ICC

Chasing Justice

The International Criminal Court’s Assembly of States Parties 2019 (ASP) at The Hague is only a few days away. While I look forward to the new experience at The Hague, I continue to consider how the Hague can bring justice to the people of my country, Syria.
Bosco Ntaganda

Ntaganda is sentenced to 30 years

Bosco Ntaganda was sentenced to 30 years based on eighteen charges arising from attacks made on Lendu people in the Ituri region of the Democratic Republic of the Congo in 2002 and 2003. This Journal published a commentary how-bosco-ntaganda-was-convicted-as-an-indirect-co-perpetrator-in-eighteen-crimes and later early-submissions-about-how-ntaganda-reparations-hearings-should-proceed. This comment will explore the Trial Chamber’s reasons for his 30-year sentence.
Extraordinary Chambers in the Courts of Cambodia

Who Are Most Responsible in International Criminal Law?

On 28 November 2019, a hearing will begin before the Pre-Trial Chamber (PTC) of the Extraordinary Chambers in the Court of Cambodia (ECCC) in Case 003, the MEAS Muth case (see here while for an overview of the proceedings in the ECCC, see here). The hearing is an appeal of the two separate closing orders of the national and international co-investigating judges of November 28, 2018 resulting from a disagreement between them about whether MEAS Muth was subject to the ECCC’s personal jurisdiction as “a senior leader or one of the persons most responsible for crimes committed during the period of 17 April 1975 to 6 January 1979 in the Democratic Kampuchea” (DK)(article 2 of the law establishing the ECCC, see here). As this issue is also at the heart of the two other remaining cases before the ECCC, namely the YIM Tith and AO An case and the PTC has already found that another person, IM Chaem, did not fall within this category (see here), an overview of this notion of ‘most responsible’ is timely.
Mr Laurent Gbagbo and Mr Charles Blé Goudé

The ICC and Hate Speech

On July 16, 2019, an ICC Trial Chamber issued the written reasons for its oral decision of January 15, 2019 (see here) in the case of Laurent Gbagbo and Charles Blé Goudé pertaining to the situation in the Republic of Côte D’Ivoire acquitting them of all charges and ordering their immediate release. The decision was split, with Judges Tarfusser and Henderson in the majority (with their reasons filed as a separate opinion by Judge Henderson, which has been removed from the ICC website but can be found here) and a strong dissent by Judge Herrera Cabuccia (which has also been removed from the ICC website but can be found here). The Prosecutor has appealed the decision (see here).
Bosco Ntaganda

Early submissions about how Ntaganda reparations hearings should proceed

The second Lubanga Appeals Chamber decision on reparations (Lubanga II) was released shortly after the conviction of one of his confederates, Bosco Ntaganda, of five crimes against humanity and 13 counts of war crimes, including one arising from the use of child soldiers all in the Ituri province of the Congo. He was one of Lubanga’s commanders. Ntaganda has appealed his conviction. The sentencing hearing is scheduled for November 7, 2019 (here). The Appeals Chamber decision has been the subject of descriptive commentary (here).
timeline of International crim court

The ICC’s Investigation Problem and Safeguarding Justice for the Rohingya

As of the date of writing, Pre-Trial Chamber III of the International Criminal Court (ICC) is preparing to decide whether the Situation in Bangladesh/Myanmar is to become the Office of the Prosecutor’s (OTP) twelfth ongoing investigation going into 2020 (ICC Proposed Budget 2020, at para 107). As the OTP’s investigatory case load continues to increase, it seems natural to review whether it has the necessary capacity to deal with this increase in workload. The “investigatory capacity” of the ICC to carry out investigations while retaining the ability to perform such investigations within the standards required of criminal proceedings that respect the interests of justice, may have been taken for granted for too long. It is particularly notable that the Rome Statute provides no limitation to the number of situations that can be referred to the Prosecutor. This raises the overall issue about whether some fundamental changes in the OTP’s investigatory policies are needed.