News

Tribunal Court Overturns Homicide Conviction for 29-Year-Old Mother

By: Zoe Whitehouse
Impunity Watch Reporter, Latin America

MEXICO CITY, Mexico — A state tribunal court in Querétaro, Mexico has overturned a sixteen-year prison conviction for Dafne McPherson, a woman accused of inducing her own abortion. The reviewing court has found the evidence presented by prosecutors was unreliable.

                                          Dafne McPherson leaving the tribunal court in Querétaro. Photo Courtesy of El Heraldo de Mexico.

In early 2015, McPherson felt a sharp pain in her abdomen while working at a Liverpool department store in San Juan del Río. At the time, McPherson was unaware that she was pregnant. Rather, she believed that her weight gain and infrequent periods were symptoms of her hypothyroidism.

McPherson then went into labor in a department store bathroom and sought medical assistance. However, private security guards at the department store refused to call a Red Cross ambulance, leading McPherson to wait for a private ambulance. The attending paramedics noted that she had fainted and had experienced extreme blood loss when they arrived.

While Mexico City outlawed the criminalization of abortion in 2007, conservative Mexican states are still filing criminal charges against women who miscarry or experience complications during childbirth. On September 2, 2015, police detained McPherson.

Prosecutors had alleged that McPherson intentionally induced her abortion and suffocated the baby when attempting to flush infant down the toilet.

McPherson’s initial case was fraught with defense issues. Her family members state McPherson’s first attorney charged for legal services but failed to develop a defense or trial strategy. Immediately prior to trial, the lower court disqualified her second attorney because he had not prepared for a newly implemented judicial system. The court then assigned a public defender at the last minute. However, the attorney failed to call witnesses, to offer exculpatory evidence, and to object to the prosecutor’s characterization of McPherson’s acts as doing something “not even a dog would do.”

As a result, Dafne McPherson was convicted of homicide and sentenced to a sixteen-year prison term in 2016.

29-Year-Old Dafne McPherson. Photo Courtesy of El Heraldo de Mexico.

Aureliano Hernández, McPherson’s appellate attorney, had introduced evidence that the infant’s death was caused by inadequate facilities and a lack of medical attorney. Attorney Hernández had stated that the baby fell into the toilet because McPherson had fainted from extreme blood loss.

The tribunal court overturned McPherson’s conviction. The twenty-nine-year-old mother has returned home to her seven-year-old daughter, Lia.

For further information, please see: 

BBC — Mexico woman accused of killing newborn child after miscarriage freed — 25 Jan. 2019

The Guardian — Mexican woman jailed for miscarriage released after conviction is overturned — 25 Jan. 2019

The Guardian — Mexico baby death trial reveals growing persecution of women who miscarry — 8 Nov. 2017

Two Imprisoned Journalists in Myanmar Will Appeal to Supreme Court

By: Natalie Maier
Impunity Watch, Press Freedom                                                                                                                                                               

YANGON, Myanmar — Two Reuters journalists imprisoned under Myanmar’s Official Secrets Act filed an appeal Friday with the Supreme Court to overturn their convictions.

Reuters journalist Wa Lone is escorted by police as he leaves court Wednesday, Jan. 10, 2018, outside Yangon, Myanmar. (2018 AP Photo/Thein Zaw)

Wa Lone and Kyaw Soe Oo have been in prison for over a year now. The pair were arrested on December 12, 2017 and charged with violating the Official Secrets Act, a colonial-era law that punishes the distribution or publication of documents that may be “useful to the enemy.”

Prosecutors claim that the two obtained important and secret state documents relating to a military campaign in Rakhine State by the Myanmar army. Since 2016, over 680,000 Rohingya Muslims have fled the area amidst genocide. The United Nations has opened up an investigation into the crisis, calling it “ethnic cleansing.”

Lone and Soe Oo, reporters for the Reuters news agency, had been investigating a mass grave in the city of Inn Din. They claim that they were framed by police, who handed them documents, and then arrested them for possession.

On January 11, 2019, an appellate judge upheld the original conviction of 7 years in prison for hard labor. This appeal claims that lower court rulings involved errors in judicial procedure. Khin Maung Zaw, counsel for the journalists, said the lower courts did not properly evaluate witness testimony. Observers at the trial described testimony of the prosecution as vague and contradictory. However, one police officer who testified for the prosecution admitted that the two journalists were indeed the target of a sting operation.

The case has caught the attention of human rights and free speech advocacy groups around the world. Concerns about the status of press freedom in Myanmar are growing, with 43 journalists arrested wince 2015.

For more information, please see:

1 February 2019 – AP/The Diplomat –  Landmark Myanmar Press Freedom Case Set for Supreme Court Appeal 

2018 – PEN America – Wa Lone and Kyaw Soe Oo

Angola Decriminalizes Same-Sex Conduct

By: Skylar Salim
Impunity Watch Reporter, Africa

LUANDA, Angola –On January 23, 2019, the Angolan parliament voted to remove a “vices against nature” provision from their penal code. This provision acted to criminalize all same-sex conduct. Additionally, the parliament adopted a new penal code, the first time they changed the code since gaining independence from Portugal in 1975. The new penal code also prohibits discrimination based on one’s sexual orientation, providing that anyone who discriminates on this basis can face up to two years in prison. These changes to the penal code come from the administration of the newly elected President Joao Lourenco.

Iris Angola celebrating after the Angolan government gave them legal status. Photo courtesy of Iris Angola.

There have not been any known prosecutions under the removed provision. The Human Rights Watch states that despite this, the law gave “tacit state support to discrimination against gender and sexual minorities, contributing to a climate of impunity.” A UN Independent Expert, Victor Madrigal-Borloz, also notes that that law was “one of the root causes behind grave and pervasive human rights violations against gay, lesbian, trans and bisexual people.” Madrigal-Borloz urged countries who still criminalize same-sex conduct to restructure their own legal frameworks as Angola has in order to support human rights imperatives.

Angola’s LGBT rights lobby group, Iris Angola, claims that members must deal with discrimination when attempting to access health care, employment and education. While the group was established in 2013, the Angolan government gave Iris Angola legal status in 2017. Other countries such as Mozambique have legalized same-sex conducted but declined to give legal status to groups like Iris Angola.

Recently more countries have begun the process of decriminalizing same sex conduct. In 2018, India struck down anti-homosexuality laws. Closer to Angola, Cape Verde and Sao Tome and Principe have, also through legislative reform, abolished laws that criminalize same-sex relationships. While some countries are beginning to move in the same direction as Angola, LGBT communities still face discrimination and prosecution in many places. In Nigeria someone can face up to 14 years in prison for being in a same sex relationship. Dolapo Badmos, a high ranking policewoman in Nigeria, recently told LGBT people living in the country to leave or face persecution. Human rights groups have noted that 69 countries still criminalize same-sex conduct, and push for this to change as it has in Angola.

For further information, please see:

HRW – Angola Decriminalizes Same-Sex Conduct – 23 January 2019

AP – Angola Decriminalizes Same-Sex Conduct, Rights Group says – 24 January 2019

CNN – Angola has Decriminalized Same-Sex Relationships, Rights Group says – 24 January 2019

UN News – UN Welcomes Angola’s Repeal of Anti-gay law, and ban on Discrimination Based on Sexual Orientation – 25 January 2019

African Court Closes 51st Ordinary Session

By: Hannah Gabbard
Impunity Watch Reporter, Africa

TUNIS, Tunisia – On Friday, 7 December 2018, the African Court on Human and Peoples’ Rights (AfCHPR) commenced its 51st Ordinary Session in Tunis, Tunisia. During the 51st Ordinary Session, the court rendered four judgements.

AfCHPR
African Court of Human and Peoples’ Rights 51st Ordinary Session in Tunis, Tunisia. Photo Courtesy of AfCHPR.

In the first matter, Ingabire Victoire Umuhoze was originally sentenced to eight years in prison for allegedly propagating ideologies of genocide and terrorism against the Republic of Rwanda. On appeal her sentence was increased by fifteen years. In 2014, Umuhoze applied to AfCHPR alleging that the government violated her rights. In 2017, the court ruled in favor of Umuhoze. They then ordered the government to restore her rights and delayed a decision on reparations. In the 51st Ordinary Session, the court dismissed Umuhoze’s request for an expunged record but ordered the Rwandan government to pay a total of 65,230,000 Rwandese Francs to Umuhoze and her family for material and moral prejudice suffered.

In the case of Armand Guehi v. United Republic of Tanzania, the court considered several allegations that during Guehi’s domestic proceedings the United Republic of Tanzania violated his rights under the African Charter on Human and Peoples’ Rights. Guehi alleged that the government deprived his right to a fair trial by not providing access to an attorney or a translator. Guehi alleged that he was in custody for an unreasonable amount of time and held in poor conditions. The African Court found that the United Republic of Tanzania violated the Charter in regards to the condition during Guehi’s custody and dismissed the other allegations. The court ordered the government to pay Guehi reparations amounting to $2,500 USD.

In the third matter, Wereme Wangoko appealed to the African Court alleging the United Republic of Tanzania violated the applicant’s right to equity, equal protection under the law, non discrimination, and a fair trial under the African Charter. The court made a decision on the merits after dismissing the government’s objections for jurisdiction and admissibility. The court found that the United Republic of Tanzania did not violate any articles of the African Charter.

In the case of Mgosi Mwita v. United Republic of Tanzania, the court ruled that the government had violated Mwita’s right to equality and equal protection under the law. The United Republic of Tanzania was ordered to release Mwita from prison and to provide him with copies of his court documents. Additionally, the court allowed Mwita thirty days to file for reparations against the government.

In addition to the four judgements, AfCHPR recently announced that in 2019 they would be implementing reforms. These reforms would focus on modernizing the court’s workflow and case management as well as a new organization of internal methods and court procedures. Additionally, African Court President stated that AfCHPR would work to strengthen cooperation with the States, stakeholders, academia and other regional courts.

AfCHPR meets during Ordinary Sessions four times a year. They will convene for their 52nd Ordinary Session in 2019. As of November 2018, the court has received 190 applications and has finalized 48 of their cases.

For further information, please see:

Modern Ghana – 2019 is year for human rights reform – African Court – 8 January 2019

African Union –  Ingabire Victoire Umuhoza v. Republic of Rwanda – 7 December 2019

African Union – Armand Guehi v. United Republic of Tanzania – 7 December 2019

African Union – Werema Wangoko v. United Republic of Tanzania – 7 December 2019

African Union – Mgosi Mwita v. United Republic of Tanzania – 7 December 2019

African Court of Human and Peoples’ Rights – African Court on Human and Peoples’ Rights to Deliver Four Judgements on Friday in Tunis – 5 December 2018

After Force, The Code Blue Peacekeeping

By: Lucíola Gomides Dutra

Impunity Watch Reporter, Special Feature

1- INTRODUCTION

The UN Charter outlaws all uses of force against the territorial integrity or the political independence of a state, unless authorized by the UN Security Council or justified by self-defense.2In addition, although controversial, the principle of self-determination can be also recognized as a third exception to that prohibition.3

The objective of such provisions is to create a system in which force is the last resource and the UN will work toward a world of peace for all. Nonetheless, the UN Security Council may authorize measures involving the intervention of armed UN Peacekeeping operations, responsible for helping “countries navigate the difficult path from conflict to peace.”4

In this context, unlike the calm that follows any storm, peacekeeping agents seem to be committing criminal acts to the detriment of the population they are supposed to protect, undermining faith in UN operations, especially considering that the UN is not properly investigating and punishing the perpetrators.5

The Central African Republic’s situation is a good illustration of this issue, as urgent measures to avoid impunity to sexual abusers within the UN are necessary.

 

2- CENTRAL AFRICAN REPUBLIC (CAR) CONFLICT

Since 2012, the Central African Republic has been wrecked by the bloody armed conflict between the government, rebels from Séléka and from Anti-Balaka coalitions, causing civilians to suffer enormously. In this context, armed groups have used rape and sexual slavery as a tactic of war. Therefore, woman and girls have been made sexual slaves for long periods of time, after watching their husbands and fathers be murdered.6

To deal with this situation, the African Union Peace and Security Council authorized the deployment of African-led International Support Mission in the country (MISCA), which later was succeeded by the United Nations Multidimensional Integrated Stabilization Mission in Central Africa (MINUSCA),7in accordance with the UN Security Council’s Resolution 2149/2014.8

The Resolution reiterates that all perpetrators must be held accountable for their jus cogenscrimes, and points out that they can even be submitted to the International Criminal Court’s (ICC) jurisdiction.9In fact, the Office of the Prosecutor for the ICC opened an investigation in May 2007 and stated that based on preliminary analysis, civilians were killed and raped, among other crimes, in the context of an armed conflict between the government and rebel forces in CAR. However, the investigations are still pending for war crimes (murder, rape and pillaging) and crimes against humanity (murder and rape).10

Nonetheless, in an ideal world, the mission of the UN Peacekeeping operation is mainly engaged in assisting disarmament, demobilization and reintegration of ex-combatants, among other actions in support for the restoration of State authority, promoting human rights and economic recovery.11But UN Peacekeepers can be disguised perpetrators, protected under a blue helmet and an official veil of impunity.

 

3- A DIFFERENT UNLAWFUL USE OF FORCE BY PEACEKEEPERS

The rape and sexual abuse committed by rebels are conduct listed in the Rome Statute as crimes against humanity, allowing prosecutions to occur, eventually, at the ICC, since the CAR is a State party. However, the population will ultimately feel helpless if prosecutions do not occur for actions taken by those with a responsibility to defend the population’s rights, as in the case of some UN Peacekeepers.12

This problem of sexual exploitation and abuse promoted by Peacekeepers was nothing new to the UN even prior to 2014. The Report on the activities of the Office of Internal Oversight Services precisely stated that “it remains a significant area of concern,” with the greatest number of such offenses being committed by uniformed personnel in the seven UN Peacekeeping missions analyzed in that occasion, in 2013.13

Even so, from 2014 to 2015, the matter was kept secret by UN officials, generating not only impunity but also encouraging new crimes. Because of the cover-up, by 2015, the number of known child victims submitted to forced oral and anal sex acts had grown from nine to twenty-one. Therefore, not only those Peacekeepers who committed the crimes directly, but also the UN staffers and officials that were unduly silent should be investigated and held responsible for their wrongdoing, administratively and criminally. The omission’s seriousness is perfectly illustrated by the fact that one boy, who in 2014 was a witness telling UN interviewers that he had seen the oral and anal rape of his friends by Peacekeeping agents had, by 2015, become a victim of oral and anal rape himself.14

As if it was not enough, the crimes continued to happen as MINUSCA had just received new allegations of sexual abuse of at least three minors by Mauritanian Peacekeepers in southern CAR. This time, the UN claims that it immediately sent a multidisciplinary team to the scene to establish the needs of the alleged victims, to identify the perpetrators and to collect the necessary evidence. Furthermore, MINUSCA’s press release also affirmed that the alleged victims received medical and psychosocial support from two partner institutions of the United Nations System.15

But those steps are the easier ones to take compared to effectively investigating and punishing the wrongdoers, administratively and criminally, giving victims all the support that they need in order to have real access to justice and full reparations.

 

4- THE CODE BLUE CAMPAIGN

The Code Blue Campaign seeks to end impunity for sexual abuse by UN personnel in Peacekeeping operations, arguing that the UN should not continue to be the police and the judge to itself.16

First of all, there is a shield against punishment if one improperly takes advantage of the institute of immunity,17conceived initially to allow the members of the Organization to perform their functions adequately, without improper exposure to legal liability and interference by whoever wishes to obstruct their work.18

Despite of the possibility of deviation, according to the UN, “there is no immunity for sexual abuse,”19 implying that no waiver would be necessary. Conversely, as a practical matter, nothing happens until the UN assesses and decides, case by case, whether functional immunity applies.20

Although immunity, in the terms referred to above, can be an obstacle for eventual sanctions to apply when it comes to domestic laws, it is important to remember that Article 27 of the Rome Statute affirms that it applies equally to all persons, without distinction based on official capacity. Furthermore, the Statute is clear when it states that this official capacity shall not bar the Court from exercising its jurisdiction over such a person.21In other words, as long as the conditions to the exercise of jurisdiction are present as well, immunity should not represent an obstacle for accountability regarding the crimes against humanity committed by Peacekeepers.

When focusing on domestic laws’ accountability, the Code Blue Campaign defends the creation of anindependent Special Court Mechanism in peacekeeping countries where the UN has unilaterally determined that the existing law enforcement and judicial systems are not capable of carrying out criminal investigations or trials with acceptable standards. Actually, such an excuse could be used to make sure peacekeepers avoid trial. However, with the change proposed, there will be no more UN non-military, non-uniformed personnelcircumventing the local government in order to escape the legal consequences of their misconduct. 22

It is interesting to see that the campaign also points out a difference of treatment among UN personnel. On one hand, the current system makes it so that UN peacekeeping’s uniformed personnel operating under the jurisdiction of their Troop or Police Contributing Countries may face prison back in their own countries if accused of sexual assault or rape. On the other hand, UN civilian personnel accused of exactly the same crimes, if the local government’s justice system gets circumvented, face only the possibility of losing their jobs.23But the act of one is as reprovable as the act of the other. In addition, even for the uniformed personnel, there is no such thing as a guarantee of a trial in the perpetrator’s country of origin.

For instance, the fact that some States have military courts to investigate and adjudicate alleged human rights violations committed by members of the military against civilians is problematic. According to the U.N. Human Rights, it precludes the possibility of an independent and impartial investigation, which would require judicial authorities not linked to the command structure of the security forces.24

The second solution presented by the Code Blue Campaign is for the immediate term. It recognizes that there is a UN system-wide crisis, suggesting that the Member States appoint a Temporary Independent Oversight Panel to oversee the Organization’s response to claims of sexual harassment, sexual exploitation and sexual abuse, until the final outcome of each case.25

Of course, those would not be the only measures to be taken in order to solve the problem. Other alternatives are also helpful. For instance, the Secretary-General has also committed to supporting increased women’s leadership and gender equality in UN peacekeeping missions, as gender inequality can be connected with the sexual abuse issue.26

The logic behind this ratio is that as men outnumber women, it enhances a sexist culture that considers and treats women as inferior, leading to sexual violence. Then again, to fix gender inequality is itself a great problem. For example, in order to be seen as equal, women in the infantry admitted they felt pressured to not only meet but surpass the standard physical requirements. And even when they did surpass those standards, they had serious doubts as to whether they could ever be accepted as equals by their male peers.27Thus, there are barriers that should not exist, resulting in less women in the armies and making gender equality harder to achieve. Hence, more efficient measures need to be taken while the solution to this problem is being addressed.

 

5- CONCLUSIONS

Regarding the urgency to take action in order to avoid new rapes and sexual abuses within the UN Peacekeeping missions, the MINUSCA press release28seemed to show a more serious concern of the UN with the issue. In the beginning of 2018, the Secretary-General presented a report about “Special measures for protection from sexual exploitation and abuse” to the UN General Assembly. Unfortunately, the document merely has vague promises to address these problems with further actions.29It leads to the question: for how many more years will the UN rely on announcements of future policies instead of addressing the exploitation and the abuses with the seriousness the victims deserve?

Meanwhile, the UN Peacekeeping operations were supposed to be guided by the principles of consent of the parties, impartiality and non-use of force except in self-defense and in defense of the mandate.30In contrast, reality demonstrates that there is no such thing as consent when there is sexual abuse of fragile woman and children. Nor impartiality when those who are supposed to punish the criminals covers-up the facts for their own benefit. Finally, there is no self-defense, but another aggression in detriment of an already vulnerable population. At least for now, apparently the storm will continue to persist for the people in the CAR.

 

[i]           2  Jeffrey L. Dunoff, Steven R. Ratner & David Wippman, International law: norms, actors, process: a problem-oriented approach  716 (2015)

[i]           3 Malcolm N. Shaw, International law 554-557 (1991).

[i]           4  United Nations Peacekeeping, United Nations, https://peacekeeping.un.org/en (last visited Nov 7, 2018).

[i]           5Deutsche Welle, ‘Faith in peacekeeping is being undermined’, https://www.dw.com/en/un-not-competent-to-handle-abuse-allegations-sexual-abuse-peacekeeper/a-43152818 (last visited Nov 7, 2018).

[i]           6  Central African Republic: Sexual Violence as Weapon of War, Human Rights Watch (2017), https://www.hrw.org/africa/central-african-republic (last visited Nov 7, 2018).

[i]           7  History: Central African Republic conflict, Conciliation Resources (2016), https://www.c-r.org/where-we-work/east-and-central-africa/history-central-african-republic-conflict-0 (last visited Nov 8, 2018).

[i]           8United Nations Security Council Res 2149 , United Nations (2014), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2149(2014) (last visited Nov 8, 2018).

[i]           9  Id

[i]           10Situation in the Central African Republic ICC-01/05, International Criminal Court, https://www.icc-cpi.int/car (last visited Nov 8, 2018).

[i]           11Mandates and the legal basis for peacekeeping Peacekeeping, United Nations, https://peacekeeping.un.org/en/mandates-and-legal-basis-peacekeeping (last visited Nov 8, 2018).

[i]           12James Hall, African Conflict Monitor In on Africa (2016), http://www.inonafrica.com/wp-content/uploads/2015/09/ACM_February_2016_Special_Release.pdf (last visited Nov 7, 2018)

[i]           13Report of the OIOS n, A/67/297 (Part II) , Office of Internal Oversight Services (2013), https://oios.un.org/resources/ga_report/a-67-297-ar-partii.pdf (last visited Nov 7, 2018).

[i]           14Supra note 12

[i]           15MINUSCA takes action on reports of sexual abuse by peacekeepers, MINUSCA (2018), https://minusca.unmissions.org/en/minusca-takes-action-reports-sexual-abuse-peacekeepers (last visited Nov 8, 2018).

[i]           16Code Blue Campaign Solutions, Code Blue, http://www.codebluecampaign.com/our-solutions (last visited Nov 8, 2018).

[i]           17CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS, United Nations (1946), https://www.un.org/en/ethics/pdf/convention.pdf (last visited Nov 7, 2018).

[i]           18Supra note 16

[i]           19Daily Press Briefing by the Office of the Spokesperson for the Secretary-General | Meetings Coverage and Press Releases, United Nations, https://www.un.org/press/en/2018/db180214.doc.htm (last visited Nov 8, 2018).

[i]           20Primer: Privileges and Immunities, Code Blue: http://www.codebluecampaign.com/primer-privileges-and-immunities-of-the-united-nations/ (last visited Nov 8, 2018).

[i]           21Rome Statute, The International Criminal Court, https://www.icc-cpi.int/resourcelibrary/official-journal/rome-statute.aspx#article27 (last visited Nov 19, 2018).

[i]           22Supra note 16

[i]           23Id

[i]           24OAS, UN Human Rights and IACHR Categorically Reject Bill Expanding Jurisdiction of Military Courts in Brazil OAS (2009), http://www.oas.org/en/iachr/media_center/PReleases/2017/160.asp (last visited Nov 19, 2018).

[i]           25Supra note 16

[i]           26 Sanam Naraghi Anderlini, UN Peacekeepers’ Sexual Assault Problem Foreign Affairs (2017), https://www.foreignaffairs.com/articles/world/2017-06-09/un-peacekeepers-sexual-assault-problem (last visited Nov 19, 2018).

[i]           27Megan H. MacKenzie, Will Letting Women Fight Fix Gender Inequality? Foreign Affairs (2018), https://www.foreignaffairs.com/articles/united-states/2018-04-23/will-letting-women-fight-fix-gender-inequality (last visited Nov 19, 2018).

[i]           28Supra note 15

[i]           29Report of the Secretary-General n. A/72/751, United Nations (2018), https://static1.squarespace.com/static/514a0127e4b04d7440e8045d/t/5aa810758165f594c06c504d/1520963702847/N1804422.pdf (last visited Nov 7, 2018).

[i]           30Principles of peacekeeping , United Nations, https://peacekeeping.un.org/en/principles-of-peacekeeping (last visited Nov 8, 2018).