ICL MEDIA REVIEW: 4 – 10 March 2019

ICC OTP receives Article 15 Communication on behalf of Syrian victims deported to Jordan:  On 7 March 2019, the ICC Office of the Prosecutor received a Communication submitted under Article 15 of the Rome Statute on behalf of 28 Syrian victims who were deported into Jordan.  The Communication alleged the crimes against humanity of deportation under Article 7(1)(d), of persecution under Article 7(1)(h), and 'other inhumane acts' under Article 7(1)(k).  The Communication replied on the precedent set by the Pre-Trial Chamber in its decision concerning crimes committed against Rohingya Muslims which found that for the crime against humanity of deportation, the Court could exercise jurisdiction if one element of the crime is committed in the territory of State Party to the Rome Statute.  In the Rohingya jurisdiction decision, the Court found that because the victims were deported from Myanmar (not a party to the Statute) into Bangladesh (a State Party) that jurisdiction could be exercised, and that the logic of this decision could apply to other crimes against humanity such as persecution and 'other inhume acts.'  The Communication asserted that the same reasoning applies to the crimes committed against the victims in Syria who were forced to flee Syria due to 'coercive acts' committed by the Syrian Government's forces, such as bombings, killings, torture, abuse, disappearances and arbitrary arrests and detention, which gave the victims no choice but to flee.  The Communication requested that the OTP open a preliminary examination as soon as possible and to investigate and prosecute the crimes alleged. (BBCMiddle East Monitor)

Germany asks Jordan to extradite chief of Syria's Air Force Intelligence Directorate based on warrant for CAH: Germany has reportedly issued a request to Lebanon for the extradition of the Head of Syria's Air Force Intelligence Directorate, General Jamil Hassan, who is wanted for alleged war crimes and crimes against humanity under a complaint that was filed by Syrian refugees in Germany. It is alleged that thousands of Syrians have been tortured in detention centres under the direct control of General Hassan who is Syria's longest-serving intelligence chief and considered one of the most powerful officials in the country. While there are no official confirmations, it was reported that General Hassan was in Lebanon to seek medical treatment under Hezbollah's protection. Germany has also not officially confirmed the extradition request and Lebanon's Interior Ministry had denied receipt of any notification for the General's arrest from Interpol. (Al Jazeera)

US Federal Court allows suit by Abu Ghraib victims against private military contractor for torture: On 30 June 2008, a federal lawsuit was filed in the Eastern District of Virginia in 2008 on behalf of four Iraqi “hard site” victims of torture at Abu Ghraib prison against the US-based government contractor CACI International Inc. and CACI Premier Technology, Inc, which provided interrogation services (Al Shimari v CACI). The lawsuit was brought under the Alien Tort Statute (ATS) and federal question jurisdiction, seeking compensatory and punitive damages. The lawsuit asserted that CACI directed and participated in illegal conduct at the Abu Ghraib prison in Iraq and cited claims arising from violations of both U.S. and international law. These included: torture; cruel, inhuman, or degrading treatment; war crimes assault and battery; sexual assault and battery; intentional infliction of emotional distress; negligent hiring and supervision; and negligent infliction of emotional distress.  In June 2013, the case was dismissed by the district court on the grounds that the acts giving rise to the tort claims had occurred exclusively in Iraq, which was a foreign sovereign. This decision was based on the US Supreme Court case in Kiobel v Royal Dutch Petroleum, however, a unanimous panel of the Fourth Circuit Court of Appeals reinstated the case in June 2014, finding that it satisfied Kiobelin that the subject matter of the case “touches and concerns” the US. In June 2017, the court affirmed that war crimes, torture, and cruel, inhuman and degrading treatment were all well-recognised and definable norms that fell within the court's jurisdiction under the Alien Tort Statute and in February 2018, a federal judge ruled that the treatment of the plaintiffs constituted torture, war crimes, and cruel, inhuman and degrading treatment, and that the lawsuit could proceed. Most recently, on 27 February 2019, the Center for Constitutional Rights, a party to the suit, reported that a Federal Judge in the Fourth Circuit Court of Appeals had once again refused  to dismiss the lawsuit and trial has finally been scheduled to begin on 23 April 2019. (Center for Constitutional Rights)

Malaysia joins ICC: Malaysia has officially joined the International Criminal Court (ICC), ratifying the Rome Statute on Monday 4 March 2019, the country’s human resources minister Mr Kula Segaran has announced. Malaysia is the 124th state to join the court since its establishment in 2002. “By joining the ICC, Kuala Lumpur can now play an important role in issues related to crimes against humanity,” Mr Segaran said. This development has been reported as a boost to the ICC in a period during which it has faced criticism following high profile acquittals, the withdrawal of Burundi, and the intended withdrawal of the Philippines. (Channel New Asia)

Colombia’s JEP opens Case 007 investigating enlistment of child soldiers in state and non-state armed groups: On 4 March 2019, Colombia’s Special Jurisdiction for Peace (the ‘JEP’) launched an investigation into the recruitment of 6,000 children by the FARC guerrilla group. Case 007 should shed light on the alleged use of children under 15 in intelligence work for the military, since so far only 10 officials have been convicted of this crime., Between 1971 and 2016, approximately 6230 minors were enlisted, according to human rights groups active in Colombia. The JEP believes that the majority of crimes happened between 1998 and 2014. The investigation not only seeks to investigate the use of minors in combat, but also “those who have carried out any kind of duty for any legal or illegal armed group, be it as cooks, carriers, messengers or for spying and sabotage activities.” Enlistment was prevalent in FARC-held territories. Beyond the use of child soldiers, the case will also investigate crimes such as sexual violence and sexual slavery, including forced abortions. The JEP has also pledged to pay particular attention to the recruitment of children of indigenous people, Afro-Colombians, Roma people and other minorities. The JEP officially commenced on 15 March 2018 after the Colombian government and FARC signed the November 2016 Peace Agreement. Its mandate is to investigate grave breaches of international humanitarian law and gross human rights violations including murder, extrajudicial killings, enforced disappearances or sexual violence. The JEP is vested with exclusive jurisdiction over crimes committed prior to 1 December 2016 in the context of the armed conflict between the government and the belligerent groups FARC and ELN. FARC alone is implicated in war crimes in 60% of the cases surrendered to the JEP (El EspectadorColombia Reports)

Testimonies at Gambia’s Truth Commission allege involvement of Yahya Jammeh in commission of crimes: Two witnesses before the Gambia’s Truth, Reconciliation and Reparation Commission (the ‘GTRRC’) have testified about the involvement of the country’s former President Yahya Jammeh in the killings of soldiers in November 1994 and of a minister of finance in June 1995. During the relevant period, Mr Jammeh served as the leader of the military. Mr Jammeh’s former chief of staff and lieutenant in the army, Demba Njie, testified before the Truth Commission about receiving orders directly from Jammeh to kill the soldiers implicated in planning a coup on 11 November 1994. Mr Njie’s testimony is ground-breaking. So far, the individuals implicated in the killings include the vice-chair of the Armed Forces Provisional Ruling Council (AFPRC), Sanna Sabally and other high-level military officials. The Truth Commission previously heard the testimony of Alagie Kanyi, who confirmed that the order to kill came from Yahya Jammeh. During separate proceedings, Kanyi confessed to some of the killings of soldiers in barracks and participating in the execution of the country’s former finance minister Ousman Koro Ceesay. The GTRRC was established in October 2018 to put on trial those responsible for the killings of opponents during Yahya Jammeh’s regime. The process is due to last for around two years and the GTRRC has the power to recommend financial compensation to victims. Mr Jammeh is in exile in Equatorial Guinea. (JusticeInfo)

ICC PTC II decision on principles applicable to victims’ application for participation in Yekatom and Ngaïssona case: The ICC Pre-Trial Chamber II (‘PTC’) issued a Decision Establishing the Principles Applicable to Victims’ Applications for Participation in the Yekatom and Ngaïssona case concerning the situation in the Central African Republic. The PTC focused on the need for outreach activities directed at the affected population in the locations referred to in the arrest warrants issued against both Accused as well as those who might have fled CAR as a result of hostilities. It highlighted that for this purpose, the outreach activities should be conducted in the language of the affected community and with due regards to the safety situation in the country. The PTC instructed the relevant ICC sections to file a confidential and ex-parte report listing the measures taken, difficulties encountered and recommendations within 10 days of the completion of the mission. The PTC also approved the Registry’s proposal to use an electronic version and an online version of the forms for individuals and organisations. It also imposed deadlines for three groups of victims to submit applications to the parties. The Victims Participation and Reparations Section should communicate the report concerning the legal representation of the victims by 16 April 2019, after consultations with the applicants. The cases against Mr Yekatom and Mr Ngaïssona were joined on 20 February 2019. The PTC has retained 18 June 2019 as the date scheduled for the hearing of the confirmation of charges against the Accused. (ICC PTC Decision)

Sri Lanka seeks to reconsider Promises to Investigate Alleged Wartime Atrocities:  Sri Lankan President Maithripala Sirisena has asked the United Nations to reconsider a 2015 resolution to investigate atrocities that occurred during the 37 year conflict, in which Government troops killed an estimated 40,000 Tamils. Sirisena co-spnsored the resolution in 2015 and pledged to ensure accountability for war-time atrocities. The deadline for the investigation, which has already been extended by two years, expires this month. Sirisena told reporters on Wednesday that he is asking the UN not to pressure Sri Lanka to conduct the investigations, as doing so would threaten the peace and ‘reopen old wounds’. While the UN has previously praised Sri Lanka for constitutional reform, land restitution and symbolic gestures towards reconciliation, it has also cautioned that the measures taken by Sirisena have been inadequate. (France 24)

UN Rights Chief Claims Inequality Undermines Global Peace and Security in First Annual Address to Human Rights Council:  UN High Commissioner for Human Rights, Michelle Bachelet, has highlighted the role of inequality in undermining human rights in her first annual address to the Human Rights Council. Bachelet noted that even in wealthy countries, inequality in the access to wealth, resources and justice undermines equality, dignity and human rights.  Her speech addressed a wide range of issues including involuntary migration, the rights of people with disabilities and people with albinism, and human rights violations by China, Israel, Saudi Arabia and the Philippines. Bachelet called upon China to allow investigations into reports of enforced disappearances and abuses, particularly of Uighur Muslims. She also drew attention to the negative impact of Israel’s 12 year blockade on Gaza’ economy, environment and social rights. Bachelet cautioned that inequality ‘had the power to erode all three pillars of the United Nations: peace and security, development, and human rights.’ (New York TimesRelief Web)

ICLMR contributors to this article include: Beatrice Tesconi, Jess Lacey, Margaux Lenormand, Shannon Raj Singh, Zuzana Drexlerova, Louise Dumas, Portia Karegeya, Catherine Dunmore, Alex Foster, Ari Bilotta, Michael Herz, Zoja Bajželj, Harriet Schiavone, Kate Gibson Boyd and Haydee Dijkstal. Contributor bios can be found HERE.

Sareta Ashraph