Category Archives: international criminal law

Pardon of Former Peruvian President Fujimori Raises Legal Questions

President Pedro Pablo Kuczynski
Credit: Cobot156 via Wikimedia Commons

The Inter-American Commission on Human Rights (IACHR), two United Nations special rapporteurs, and one UN working group recently condemned Peruvian President Pedro Pablo Kuczynski’s decision to issue a humanitarian pardon on December 24, 2017 to former President Alberto Fujimori, who was convicted and sentenced in 2009 to 25 years in prison for murder, kidnapping, and crimes against humanity during his presidency; the IACHR and the UN human rights experts question whether the decision meets international human rights legal requirements, and asserts that it undermines the efforts of victims and witnesses who brought Fujimori to justice. [IACHR Press Release; OHCHR Press Release; HRW: Pardon] See Resolución Suprema No. 281-2017-JUS (2017) [Spanish Only]. The pardon, issued officially for humanitarian reasons due to Fujimori’s health, absolves Fujimori of his convictions and releases him from his sentence. [IACHR Press Release] Peru is obligated under international human rights law to investigate alleged rights violations and punish perpetrators, and not to implement pardons or amnesty laws that undermine the rights to a fair trial and to judicial protection. [IACHR Press Release; OHCHR Press Release]

Some Peruvians and UN experts believe that the pardon was politically motivated because of a potential connection between Fujimori’s pardon and the cancelled impeachment proceedings against President Kuczynski; the impeachment proceedings were dropped just three days after the impeachment hearing of President Kuczynski, who survived a removal vote with the help of a 10-person coalition that crossed party lines to abstain from the removal vote, led by Fujimori’s son Kenji Fujimori. Seven of the 10 lawmakers communicated with Fujimori leading up to the vote. [Reuters; HRW: Pardon; OHCHR Press Release] President Kuczynski’s decision triggered street protests and unrest in Peru. [OHCHR Press Release; Guardian: Pardon] Read more

ICTY Delivers Ruling on Two Landmark Cases Before Shutting Its Doors

Genocide memorial near Srebrenica
Credit: Michael Büker via Wikimedia Commons

The International Criminal Tribunal for the former Yugoslavia (ICTY) has issued judgments in its final two cases ahead of the tribunal’s scheduled closure in December. On November 22, 2017, the ICTY – the ad hoc tribunal established by the United Nations to address war crimes committed after 1991 in the territory of the former Yugoslavia – convicted and sentenced Ratko Mladić, also known as the “Butcher of Bosnia,” to life imprisonment for genocide, crimes against humanity, and other war crimes. [ICTY Press Release: Mladić; HRW] In the wake of his conviction, the international human rights community has shown strong support for the Mladić decision, with UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein hailing the judgment as a momentous conviction and describing Mladić as the “epitome of evil.” [OHCHR Press Release] On November 29, 2017, the ICTY issued a judgment on appeal in the case Prosecutor v. Prlić et al., which will be the Tribunal’s final decision. [ICTY Press Release: Prlić et al.] The Appeals Chamber upheld the sentences of the six individuals, who remain convicted of crimes against humanity, violations of the laws or customs of war, and grave breaches of the Geneva Conventions for crimes committed against Bosnian Muslims. [ICTY Press Release: Prlić et al.] The ICTY, which has its seat in The Hague, Netherlands, will formally close on December 31, 2017 after 24 years of operation and concluding proceedings for 161 accused. [ICTY Press Release: Prlić et al.] See ICTY, Key Figures of the Cases. Read more

UN Committee Considers State Officials’ Immunity for Grave International Crimes

United Nations General Assembly hall
Credit: UN Photo/Sophia Paris

The Sixth Committee – an intergovernmental committee that considers legal questions in the United Nations General Assembly – finished late last month its consideration of a draft article that asserts State officials do not have immunity from the prosecution of crimes of genocide, crimes against humanity, war crimes, crimes of apartheid, torture, and enforced disappearance in a foreign criminal jurisdiction; the debate arose from a draft article from the International Law Commission (ILC), a group of international legal experts who prepare draft conventions and codify existing rules of international law. The ILC will put forth the draft article as a recognition of existing State practice or as a proposal for a future international convention. See ILC, About the Commission. [UN Press Release: Debate Ends] The Sixth Committee debated the contents of the ILC’s most recent report released during its 69th Session, which included the ILC’s draft of its provisionally adopted Article 7 on international crimes for which immunity from rationae materiae jurisdiction (subject matter jurisdiction) does not apply. See International Law Commission, Report of the International Law Commission at its sixty-ninth session, UN Doc. A/72/10, 4 August 2017, para. 140.

The draft of Article 7 originated from the report of a special rapporteur – a member of the ILC – appointed to address the issue of State officials’ immunity. Some ILC members expressed disagreement with the special rapporteur’s position that States’ practice supports the finding of exceptions to State officials’ immunity – the substance of Article 7. The ILC provisionally adopted the text with only 21 of the 34 members voting in favor of it. [UN Press Release: Immunity] The Sixth Committee’s two-day discussion on the draft law mirrored many of the arguments that were debated within the ILC before its provisional adoption of Article 7, namely whether the basis for the Article is supported by customary international law, whether procedural requirements may address impunity, the balance between prosecution of State officials and State sovereignty, and the ILC’s view of Article 7’s function as either the codification of existing law or the development of law. See Report of the International Law Commission, at VII.C., 180–183. [UN Press Release: ImmunityRead more

ICC Orders Reparations for Destruction of Timbuktu Cultural Sites

The former site of a mausoleum in Timbuktu that was destroyed in 2012
Credit: UN Photo/Marco Dormino

On August 17, 2017, the International Criminal Court (ICC) issued a Reparations Order in the case of Ahmad Al Faqi Al Mahdi, who in September 2016, upon pleading guilty to the destruction of 10 religious and historic sites in Timbuktu, Mali, was sentenced to nine years’ imprisonment. [ICC Press Release; IJRC] In its Reparations Order, Trial Chamber VIII of the ICC found Al Mahdi liable for 2.7 million euros (or approximately 3.18 million USD) in both individual and collective reparations for the community affected by the 2012 attacks, which occurred in the context of Mali’s internal armed conflict. [ICC Press Release] The Court, emphasizing the cultural and sentimental value of the destroyed property, ordered reparations for three categories of harm: damage to the targeted buildings, resulting economic loss, and moral harm. [ICC Press Release] The reparations are designed to rehabilitate the attacked sites, address the community’s financial losses, and potentially fund symbolic measures, such as memorials, to serve as public recognition of the harms incurred by the Timbuktu community. [ICC Press Release] Given Al Mahdi’s indigence, the Court encourages the Trust Fund for Victims (TFV), an agency that will implement the order, to supplement the reparations to the extent possible. [ICC Press Release; Guardian] Read more

News Clips- August 11, 2017

The United Nations Security Council adopts increased sanctions against North Korea
Credit: UN Photo/Kim Haughton

Civil Society

  • In Kenya, five people have been killed since Raila Odinga, an opposition leader, declared the recent presidential election fraudulent. [Al Jazeera]
  • On Thursday, authorities in Turkey issued 35 detention warrants for journalists and other individuals connected to Fethullah Gulen, who has been accused of involvement in the attempted coup last year. [Washington Post]
  • On Sunday, Russia passed a law with increased restrictions on virtual private networks (VPNs), reducing user anonymity. [Guardian]

Violence & Humanitarian Crises

  • On Tuesday, Human Rights Watch reported that Israel’s transfer of Palestinians in Jerusalem out of their homes may amount to war crimes. [Al Jazeera]
  • On Wednesday, the United Nations Security Council linked conflict to “devastating humanitarian consequences,” like threats of famine, in Yemen, Somalia, South Sudan, and Nigeria. [Washington Post]
  • This week, police forces in India launched a hotline dedicated to preventing honor killings for couples who feel threatened by their families. [Reuters]

Activities of Supranational Entities

  • On Wednesday, several United Nations entities concluded in a joint statement that the implementation of the Declaration on the Rights of Indigenous Peoples has been obstructed by continued vulnerability and exclusion. [UN News Centre]
  • On Saturday, the United Nations Security Council strengthened sanctions against North Korea, imposing a full ban on the export of coal, iron, and iron ore, among other limitations. [UN News Centre]
  • Last week, the European Court of Human Rights stopped Russia’s deportation of Khudoberdy Nurmatov, a reporter who fears he would be tortured if he returned to Uzbekistan. [Washington Post]

Migrants, Refugees, & Asylum Seekers

Politics

  • This week, North Korea announced a plan to launch four intermediate-range missiles to land near the United States territory of Guam. [Guardian]
  • On Thursday, China called for the immediate withdrawal of Indian troops that China says have been increasing along the China, India, Bhutan border. [Al Jazeera]

UN Reports Civilian Casualties, Rights Abuses Remain High in Afghanistan

Tadamichi Yamamoto, head of UNAMA, at the UN Security Council
Credit: UN Photo/Eskinder Debebe

On July 17, 2017, the United Nations Assistance Mission in Afghanistan (UNAMA) released its mid-year report on the situation of civilians in Afghanistan, revealing that the level of civilian casualties remains high. [UNAMA Press Release] UNAMA confirmed a total of 5,243 civilian casualties (1,662 deaths and 3,581 injured) from January 1 to June 30, 2017, which represents a decrease of less than one percent from the same period in 2016, but reported an increase in deaths. See UNAMA, Afghanistan Protection of Civilians in Armed Conflict: Mid-Year Report 2017 (2017), at 3. The number of women and children killed and injured has increased this year, despite a decline in women and children casualties in 2016. [UNAMA Press Release] Civilian casualties in the first half of the year were primarily the result of anti-government forces’ use of improvised explosive devices (IEDs), such as suicide bombs, in civilian-populated areas. See UNAMA, Afghanistan Protection of Civilians in Armed Conflict: Mid-Year Report 2017, at 3–4. Medical facilities and schools continue to be targeted, impeding Afghans’ access to health care and education. See id. at 13, 17–19.

In consideration of its findings, UNAMA recommends that anti-government forces stop targeting civilians, that government forces stop using weapons such as mortars and rockets that can have devastating effects in civilian areas, and that international militaries support and train Afghanistan’s national army, among other recommendations. [UNAMA Press Release] In a statement recognizing the high rates of death and injury recorded in the report, the UN High Commissioner for Human Rights noted that the statistics on casualties do not depict the full extent of the loss and suffering, such as psychological trauma and displacement. [OHCHR Press Release] Afghanistan is a State party to the Rome Statute, Geneva Conventions, and the International Covenant on Civil and Political Rights (ICCPR), and, therefore, the State must refrain from targeting civilians during non-international armed conflict and respect and protect the right to life.

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ICC: South Africa’s Failure to Arrest Sudanese President Violates Rome Statute

Omar al-Bashir, President of Sudan
Credit: U.S. Navy photo by Mass Communication Specialist 2nd Class Jesse B. Awalt/Released via Wikimedia Commons

In its decision of July 6, 2017, a pre-trial chamber of the International Criminal Court (ICC) held that South Africa violated its obligations under the Rome Statute by failing to comply with an ICC request to arrest and turn over to ICC custody Sudanese President Omar al-Bashir, who is wanted on multiple counts of crimes against humanity, war crimes, and genocide in relation to the conflcit in Darfur. [ICC Press Release] Al-Bashir was in South Africa for a meeting of the African Union from June 13–15, 2015. [ICC Press Release] Despite its conclusion, the Court elected not to refer South Africa’s non-compliance to either the Assembly of States Parties – the legislative body of the ICC – or the United Nations Security Council, citing the fact that South African courts have already disposed of the matter. [ICC Press Release] The referrals, the Court said, are unnecessary to obtain cooperation from South Africa. [ICC Press Release] This decision could have implications for al-Bashir and others wanted by the ICC as they decide whether and where to travel. [New York Times] Since the issuance of his first arrest warrant in 2009, al-Bashir has managed to travel internationally to Asia and within Africa, but has strategically avoided the United States and Western European countries where he faces a greater risk of arrest. [New York Times] Read more

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