ICC Prosecutor Releases Statement after Arrest and Extradition of Key Suspects of Trafficking Crimes in Libya

By: Sallie Moppert

Impunity Watch News Staff Writer

THE HAGUE, Netherlands – On October 5, 2022 and October 12, 2022, two Eritrean men were arrested in Ethiopia and extradited to the Netherlands and Italy, respectively, to face charges for crimes against victims of human trafficking and human smuggling in Libya. Both arrests come after years of investigations and cooperation between international agencies.

Ghebremedhin Temesghen Ghebru is escorted back to Rome by members of the Service for International Police Cooperation after being arrested and extradited. Photo courtesy of L’Unione Sarda.

On October 5, 2022, an unnamed 38 year-old Eritrean man was extradited to the Netherlands from Ethiopia following a prolonged investigation between the Dutch Public Prosecution Service and the Royal Netherlands Marechaussee. One week later on October 12, 2022, Ghebremedhin Temesghen Ghebru, a 35 year-old from Eritrea, was extradited to Italy from Ethiopia after a year-long investigation conducted by the Polizia di Stato and the Palermo Prosecutor’s Office. Both individuals were arrested in connection with human smuggling from Africa to Europe. The smuggling victims were subjected to brutal violence while in camps in Libya and were also forced to endure beatings, starvation, sexual violence, and extortion.

“The arrest and extradition of those two suspects are of significant importance in the work that Italy and the Netherlands are doing to hold perpetrators accountable for crimes targeting migrants,” said International Criminal Court (“ICC) Prosecutor Karim A.A. Khan QC. “I commend the authorities in both countries for their meticulous and effective investigative work as well as the Ethiopian authorities for their decisive action. These criminal investigations also benefitted from the support provided by the United Kingdom of Great Britain and Northern Ireland, Europol, and Interpol, among others.”

The illegal human trafficking and smuggling network that Ghebru was one of the leaders of operated between Central Africa in Eritrea, Ethiopia and Sudan; (Eritrea, Ethiopia, Sudan), the Maghreb region of Africa, specifically Libya; and in Italy and Northern European countries like England, Denmark, the Netherland, Belgium and Germany. Karim applauded the efforts of the various countries involved in the arrests of the two trafficking suspects, highlighting how international cooperation is essential to equal protection under the law, specifically for migrants.

“These recent arrests and extraditions are a clear sign that international cooperation works. The collective effort in these two cases is a prime example of what can be achieved when States, agencies, and my Office join forces in pursuit of a common goal. This is the way forward if we want to ensure that no one is above the law and the impunity gap is narrowed,” Khan said. “I was delighted that we were able to take this step, further aligning our action and resources with others, including the authorities from Italy, the Netherlands, the United Kingdom, Spain, as well as Europol. I wish to underline my commitment to continue strengthening our engagement and support to our national partners moving forward.”

 

For further information, please see:

ICC – Statement of ICC Prosecutor Karim A.A. Khan KC on arrest and extradition of suspects in relation to crimes against victims of trafficking in Libya – Oct. 21, 2022

L’Unione Sarda – Human trafficking Africa-Europe: a dangerous fugitive in handcuffs – Oct. 12, 2022

Reuters – Top migrant trafficking suspect caught in Ethiopia, Italy says – Oct. 11, 2022

ECHR Continues Disappointing Extradition Trend – Overrules Trabelsi v. Belgium

By: Nikolaus Merz

Impunity Watch News Staff Writer

STRASBOURG, France – On November 3, 2022, the European Court of Human Rights (“ECHR”) released two judgments regarding extraditions to the United States for instances involving possible life sentencing. In Sanchez v. United Kingdom and McCallum v. Italy, the Grand Chamber found that the extradition of the petitioners – both accused of crimes that could result in possible life sentences in the United States if extradited – was allowed under Article 3 of the European Convention of Human Rights (“Article 3”).

The Grand Chamber delivers its judgment in Sanchez v. the United Kingdom. Photo Courtesy of the European Court of Human Rights.

Article 3 reads, in full; “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The two judgments continue a disappointing trend of the ECHR of interpreting when an extradition violates Article 3 with exceptional narrowness. Since 2001 there has been only a single case, Trabelsi v. Belgium, where the extradition of a petitioner was found to be in violation of Article 3.

In the majority of such extradition cases, the ECHR will generally uphold extraditions because life without parole (“LWOP”) and death sentences in the U.S. can be delayed or forgiven through a variety of legal mechanisms (stays, commutations, pardons, clemency, etc.). Because of these caveats, the ECHR has created a legal fiction that such sentences are not in violation of Article 3 (and therefore extraditions are allowed), because they can technically be reduced to a sentence which would be acceptable under Article 3.

What the ECHR neglects, and what the petitioner in Trabelsi successfully argued, however, is that these sentences are often irreducible de facto. Of the roughly 1.5 million people in prison in the U.S. today, more than 200,000 are serving LWOP sentences or a like equivalent. An incredibly small minority of these cases will likely ever receive commutations. A study of available data for eight northeastern states revealed that between 2005 and 2021 just 210 commutations were granted. For instance, Rhode Island has only granted a single commutation since the 1950’s; a posthumous pardon for a murder from the 1800’s.

Nevertheless, the ECHR held in Sanchez that Trabelsi was to be overruled as a binding decision. The ECHR held that Trabelsi had incorrectly applied a “domestic” interpretation of Article 3 when it should have applied an “adapted approach” for purposes of extradition.

The Grand Chamber further followed a two pronged test to determine when extradition would or would not violate Article 3. First, petitioners must establish that there is a real risk of receiving a LWOP or worse sentence, and secondly that a mechanism for sentence review does or does not exist in the requesting state. Absurdly, the Court found that the petitioner in Sanchez, an alleged drug trafficker also accused of being connected to a death resulting from a fentanyl overdose, was not at risk of a life sentence.

The judgment in Sanchez has concerning implications. In overturning Trabelsi’s universal Article 3 interpretation, the Grand Chamber has effectively cast aside the universality of the European Convention of Human Rights; creating instead a hierarchy of rights where European citizens will be afforded greater rights and protections under its provisions than non-citizens. Additionally, the ECHR seems to imply that America’s exceptionally limited commutation system does not constitute de facto irreducibility for sentences. Further, the Grand Chamber has seemingly adopted an exceptionally narrow interpretation of when there is genuine risk of life imprisonment; ignoring the historical propensity of the United States to issue exceptionally hefty “tough on crime” sentences.

With the ECHR overruling Trabelsi, it designates the case as nothing more than a mere aberration among its extradition judgments, and heralds a return to a narrow interpretation of Article 3. It will likely be some years before we see another Trabelsi, if ever.

 

For further information, please see:

ECHR – Delivery of the judgment 03/11/2022 – 3 Nov. 2022 

ECHR – Extradition and life imprisonment – Nov. 2022

ECHR – Extradition of the applicant would not be in violation of the European Convention – 3 Nov. 2022

ECHR – SANCHEZ-SANCHEZ v. THE UNITED KINGDOM – STATEMENT OF FACTS AND QUESTIONS – 6 July 2020

Prison Policy Initiative – Executive inaction: States and the federal government fail to use commutations as a release mechanism – Apr. 2022

The Sentencing Project – No End In Sight: America’s Enduring Reliance on Life Sentences – 17 Feb. 2021

ECHR Finds that the Slovenian Courts Violated a Neurosurgeon’s Right to a Fair Hearing

By: Marie LeRoy

Impunity Watch News Staff Writer

STRASBOURG, France – Vinko V. Dolenc, a celebrated neurosurgeon in Yugoslavia, was found to have been denied his right to a fair trial by the European Court on Human Rights (ECHR).  The ECHR found that the Slovenian Court, in recognizing an Israelis Courts judgment, without being sure that the Courts had respected Dolenc’s right to a fair trial, had recognized a judgment that violated Dolenc’s Article 6 § 1 Convention rights.

Picture of Vinko V. Dolenc. Photo curtesy of: https://www.sazu.si/en/members/vinko-v-dolenc

In May 1995 an Israeli citizen sought damages from Dolenc for medical negligence during a surgery he performed that left the patient paralyzed.

In January 1999, the Israeli trial started. Dolenc refused to recognize the Israeli courts authority, arguing that only Slovenia law applied. Dolenc argued that since Israeli and Slovenia had both signed the Hague Evidence Convention, he and his witnesses should be examined only before a Slovenian court. In accordance, Dolenc and his witnesses refused to travel to Slovenia to participate in the trial and refused to testify via video link. The Israeli Supreme Court denied his request and held that testifying over video link was a proper means of testifying. Dolenc continued to argue that testifying over video link was practically impossible.

In February 2003, the Israeli court upheld its earlier judgement, that Dolenc refusing to testify over video link was not because it was practically impossible, and the Court struct Dolenc’s main statement from his file when he continued to refuse to testify. In April 2004, Dolenc dismissed his legal representative and did not appoint a new one. The Israeli court then attempted to allow Dolenc’s witness to testify in Slovenia but no one showed up on the day of testimony. The Court then attempted to have another hearing in Israeli but, once again, no one appeared for Dolenc. The Court then gave Dolenc opportunities to submit his closing statement, but he never did.

On June 9, 2005, the Israeli court found Dolenc fully liable based on the evidence submitted. The court further found that Dolenc “had done everything he could to prevent the examination and had thereby prevented it from discerning the truth”. Through this, Dolenc asserted that he had no knowledge of the hearing dates nor of the opportunities the Court had given him to submit his closing arguments. 

In 2011 the patient appealed to the Slovenian Supreme Court to recognize the Israeli Courts holding. In 2018 the Slovenian Supreme Court found against Dolenc accepting the Israeli reasoning that Dolenc had been given opportunity to participate in the matter, that Dolenc had essentially waived his right to defend himself by dismissing his attorney and not appointing a new one, and the permissibility of disregarding the Hague Evidence Convection (framework for transmitting documents from and to opposing parties) procedure for witnesses.

The ECHR found that the Slovenian court had failed to properly investigate the Israeli’s court judgment. In particular, the ECHR noted that the only evidence considered by the Israeli court was the allegation made by the patient and the evidence put forward by them. The ECHR also noted that the Israeli court had not even attempted to have the Slovenian law expert examined via Hague Convention procedure, which means that the Israeli court applied unfavorable Israeli law to Dolenc without proper consideration.

As a result, the ECHR found that the Slovenian courts had not satisfied themselves that the Israeli trial had been fair, and therefore breached their duty under Article 6, § 1 of the Convention. The ECHR ordered the Slovenian courts to pay 15,600 euros to Dolenc for costs and non-pecuniary damages.

 

For further information, please see:

Dolenc v. Slovenia – ECHR- 20 Oct. 2022

Inter-American Commission on Human Rights (IACHR) Ruled in Favor of Jamaican Plaintiffs Challenging Criminalization of LGBTQ People

By: D’Andre Gordon

Impunity Watch Staff Writer


Kingston, Jamaica — In 2006, Times dubbed Jamaica “The Most Homophobic place on Earth.” Seven years later, Dwayne Jones, a 16-year-old transgender woman was brutally murdered at a party for wearing clothing considered feminine. Dwayne Jones’ tragic death sparked worldwide condemnation and certainly did not help the island state of Jamaica shake the label Times assigned years earlier. Dwayne’s murder was not an isolated incident, but part of a long history of state-sponsored violence against LGBTQ individuals.

Andree, the self-proclaimed guardian of the trans and gay youth of Shoemaker Gully in Kingston, Jamaica, says he has been homeless for as long as he can remember. Photo courtesy of Christo Geoghegan, New York Times.

At minimum, the violence is impliedly supported by the state through a lack of judicial enforcement against perpetrators of crimes against LGBTQ people. Many of the heinous acts of violence against LGBTQ people in Jamaica stem from homophobic legislation originating in the colonial era known as The Offences Against the Person Act 1864, in combination with religious zealotry.

Unfortunately, it is incredibly difficult and arguably impossible for LGBTQ people to seek relief when they suffer harm based on their sexual identity because the “savings clause” in the Jamaican Constitution effectively bars discriminatory provisions in The Offences Against the Person Act 1864 from constitutional scrutiny. As such, Plaintiffs Gareth Henry and Simone Edwards brought a case against Jamaica at the Inter-American Commission on Human Rights. Plaintiffs alleged The Offences Against the Person Act 1864 violated the principle of non-discrimination and equality before the law, right to life and to humane treatment, right to privacy, right to freedom of thought and expression, right to family life, right to freedom of movement and residence, right to participate in government, and right to health. This Act prohibits same-sex sexual activity and criminalizes acts of “buggery” and “gross indecency.” Consequently, anyone (only men) convicted under this law face a maximum penalty of ten years imprisonment with hard labor. Under current Jamaican law, LGBTQIA people have no protections and The Offences Against the Person Act 1864, a remnant of British colonization, reinforces and legitimizes violence against LGBTQIA people.

Plaintiffs now live abroad where they have found safety. It is not unusual for LGBTQ victims of violence to flee the island and seek asylum elsewhere. Further, their families can also become targets. Because Jamaica lacks LGBTQ protections, LGBTQ people are frequently subjected to mob violence, corrective rape, extortion, harassment, forced displacement, and discrimination. Many of these acts are perpetrated by state officials including law enforcement.

After a decade long struggle, the IACHR issued a public report in favor of Plaintiffs on December 31, 2020, declaring Jamaica non-compliant with its legal obligations under the American Convention on Human Rights. This decision is a landmark decision because it was the first decision of its kind issued by the IACHR regarding the rights of LGBTQ individuals in the Caribbean. The Commission laid out an array of recommendations for Jamaica to protect LGBTQ individuals. Two of the recommendations were repealing sections 76, 77, and 79 of The Offences Against the Person Act and adoption of anti-discrimination legal framework to prohibit discrimination based on sexual orientation, gender identity or expression – real or perceived – and body diversity.

The Commission’s decision is non-binding but is a ray of optimism because it may pressure the Jamaican Parliament to act in the interests of LGBTQ individuals. The decision is a massive victory for not only the two plaintiffs, but all LGBTQ people in Jamaica and the Caribbean. Though the decision was met with opposition from anti-LGBTQ advocates, it is incumbent on the Jamaican state to act with haste by passing laws in support of LGBTQ people because an injury to one is an injury to all. Whether the country will pass protections for LGBTQ people and enforce them is still uncertain, but dedicated activists continue to urge the government to do so.

For further information, please see:

CBC Radio – After fleeing to Canada, activist helps secure victory for LGBTQ rights in Jamaica – 18 Feb. 2021
IACHR – Report No. 401/20. Case 13,095. Merits (Publication) – 31 Dec. 2020
Laws of Jamaica – The Offences Against the Person Act – 1 Jan. 1864
Making Queer History – Dwayne Jones and the dangers of tragedy tourism – 09 Dec. 2020
The New York Times – On Being Queer in the Caribbean – 30 Oct. 2015
U.S. Dep’t. of State – 2021 Country Reports on Human Rights Practices: Jamaica – 2021

 

ICC Prosecutor Karim A.A. Khan KC on Arrest and Extradition of Suspects in Relation to Crimes Against Victims of Trafficking in Libya

By: Mikaylah Heffernan

Impunity Watch Staff Writer

THE HAGUE, Netherlands – In a recent statement, International Criminal Court Prosecutor Karim A.A. Khan KC praised the recent arrests of two key suspects of crimes against victims of human trafficking and human smuggling in Libya.

ICC Prosecutor, Karim A.A. Khan KC, briefs the UN Security Council on the Situation in Libya. Photo courtesy of Mark Garten.

“These recent arrests and extraditions are a clear sign that international cooperation works. The collective effort in these two cases is a prime example of what can be achieved when States, agencies, and my Office join forces in pursuit of a common goal. This is the way forward if we want to ensure that no one is above the law and the impunity gap is narrowed,” said Prosecutor Karim A.A. Khan KC.

An unnamed suspect, a 38-year-old man of Eritrean nationality was extradited from Ethiopia to the Netherlands after an investigation by the Dutch Public Prosecution Service and the Royal Netherlands Marechaussee. The second suspect, Gebremedhin Temesghen Ghebru, a 35-year-old man, also from Eritrea, was extradited from Ethiopia to Italy. This was due to the efforts of Polizia di Stato and the Palermo Prosecutor’s Office.

Both suspects referenced were allegedly involved in smuggling of persons from Africa to Europe, during which the victims were reported to have suffered from brutal violence, including sexual violence, starvation, and extortion. It is important to note that suspects will continue to be presumed innocent, until proven otherwise. Responsibility will be determined by independent judges during the course of future litigation.

The Libya investigation referred to in this statement was unanimously referred to the ICC on the 26th of February 2011, by the United Nations Security Council. Officially opened in March of 2011, the investigation into the Libya situation has produced three cases with multiple suspects, involving charges of war crimes and crimes against humanity. The ICC continues to indicate that the Libya Situation is a priority to be addressed and encourages continued cooperation among authorities in the pursuit of accountability.

For further information, please see:

ICC – Situation in Libya – 27 Oct. 2022

ICC – Statement of ICC Prosecutor Karim A.A. Khan KC on arrest and extradition of suspects in relation to crimes against victims of trafficking in Libya – 21 Oct. 2022

ICC – Statement to the United Nations Security Council on the situation in the Libyan Arab Jamahiriya, pursuant to UNSCR 1970 – 4 May 2011