ICC Rights Watch

U.S. Sanctions on ICC Officials on Hold

By: Andreas Munguia

Journal of Global Rights and Organizations, Associate Articles Editor

NEW YORK, United States – On November 4, 2021, a federal judge in the Southern District of New York granted a preliminary injunction blocking an executive order issued by the Trump Administration in June of last year, which threatened to impose sanctions on the International Criminal Court’s (ICC) officials and “any foreign person” assisting ongoing investigations by the court into suspected human rights abuses and other crimes by U.S. military personnel in Afghanistan between 2003 and 2014. The ICC, which holds jurisdiction over investigations and prosecutions of individuals accused of war crimes, called the Trump Administration’s move an attack on international criminal justice and referred to it as an attempt to interfere with the court’s independence and its responsibility to investigate suspected war crimes. The European Union had also expressed its opposition to the move.

Former U.S. Secretary of State Mike Pompeo spoke about a Trump administration executive order on the International Criminal Court as Former Defense Secretary Mark Esper listens during a joint news conference at the State Department in Washington, U.S. on June 11, 2020. Photo Courtesy of Yuri Gripas and Reuters.

Four dual-national U.S. international law professors and the Open Society Justice Initiative, a human rights organization based in New York, challenged the executive order on the ground that it was a violation of their First Amendment right to free speech. The plaintiffs – both of whom often interact with the ICC and the Office of the Prosecutor through, for example, trainings, advice, or amicus briefs – were concerned that their interactions with the court would potentially be considered “prohibited transactions” with ICC Prosecutor Fatou Bensouda and Phakiso Mochochoko, a senior member of the prosecutor’s office. If these interactions were in fact considered “prohibited transactions” with Bensouda and Mochochoko, both of whom faced sanctions under the executive order, the plaintiffs would be subject to prosecution. In addition, because the executive order allows for sanctions to be imposed on “entities that have materially assisted designated persons,” the plaintiffs were also concerned that they would face sanctions themselves.   

The district court granted the preliminary injunction on the ground that there was a high likelihood that the plaintiffs would succeed on their First Amendment claim. According to the court, the regulations under the executive order are “content-based restrictions on free speech,” because speech in support of Bensouda or Mochochoko is prohibited while speech against them is not. Therefore, such regulations are subject to strict scrutiny under which the government must show that the regulations are narrowly tailored to a compelling state interest.   

While the court did not question the government’s stated interest in “protecting the personnel of the United States and its allies from investigation, arrest, detention, and prosecution by the ICC without the consent of the United States or its allies,” the court found that the restrictions were not narrowly tailored toward such stated interest due to the fact they also prohibited speech that was not relevant to that interest. For example, the regulations also prohibited speech pertaining to ICC investigations that did not involve the U.S. and its allies.

The litigation is ongoing, and the government must respond to the plaintiff’s complaint by January 19, 2021. However, there is a chance that President Biden may rescind former President Trump’s executive order, and thus eliminate the need for further litigation.

For further information, please see:

Human Rights Watch – US Sanctions on the International Criminal Court – 14 Dec. 2020

Just Security – ICC Associates Win Temporary Reprieve from Draconian US Sanctions – 05 Jan. 2021

Law360 Legal News – Trump’s Move to Sanction ICC Officials On Hold, For Now – 04 Jan.  2021

Reuters – U.S. judge blocks Trump’s sanctions targeting human rights lawyers, war crimes tribunal – 04 Jan. 2021

British Lawyer Elected Chief Prosecutor of the ICC

By: Jamie McLennan

Impunity Watch Staff Writer

THE HAGUE, Netherlands – Karim Khan, a lawyer from the United Kingdom, was recently elected Chief Prosecutor of the International Criminal Court (ICC). Mr. Khan won 72 out of the 123 represented countries, beating out individuals from Spain, Italy, and Ireland. The previous Chief Prosecutor, Gambian judge Fatou Bensouda, completed his six-year term in June. Diplomatic correspondents believe that the victory will frame the United Kingdom positively among other foreign nations. After Britain’s recent withdrawal from the European Union (EU), the country is attempting to form diplomatic relations in other legal arenas. Karim Khan’s election to the ICC will likely show Britain’s continued commitment to foreign relations, despite their recent departure from the EU. The United Kingdom’s Foreign Secretary, Dominic Raab, celebrated the election and commended Mr. Khan’s commitment to international justice. 

Mr. Karim Khan speaking at the United Nations. Photo Courtesy of the United Nations.

Mr. Khan’s experience in the international legal system is extensive. During his 27 years as a lawyer, he worked for the prosecution in the International Criminal Tribunals for Yugoslavia and the Rwandan genocide. In 2018, he began an investigation of war crimes in Iraq. Mr. Khan aimed to identify perpetrators that committed heinous crimes during the Iraq War with support from the United Nations. He also represented politically notorious figures at the ICC- such as Kenya’s Deputy President William Ruto. During the trial, Mr. Khan successfully argued for the ICC to drop all charges against President Ruto, including murder, deportation, and persecution following Kenya’s 2007 election. 

Among his first tasks as Chief Prosecutor, Mr. Khan must decide how to move forward with existing controversial investigations, including war crimes in Afghanistan. Currently, the United States does not recognize court-imposed sanctions by the ICC for the American occupation of Afghanistan during the early 2000s. As a result, Mr. Khan may face difficulty if he intends to further investigate the alleged war crimes. 

Political representatives from Israel recently vocalized their criticisms when they accused the court of impeding domestic issues that the country should resolve internally. In the past, Mr. Khan also expressed interest in the investigation of war disputes in Palestinian territories. Although Israel is not a member of the ICC, the country is likely to protest the ICC’s external involvement in the Israeli – Palestinian conflict. The United States also expressed concern about the court’s efforts to exercise jurisdiction in the disputed area. However, the ICC recently decided by a majority that the court’s jurisdiction extends to territories occupied by Israel since 1967, including East Jerusalem. In sum, Mr. Khan’s legal experience combined with his new position as Chief Prosecutor may interestingly shape policy for the International Criminal Court.

For further information, please see:

BBC News – ICC rules it has jurisdictions over West Bank and Gaza abuses – 6 Feb. 2021

BBC News – Karim Khan: UK Lawyer Elected Chief Prosecutor at ICC – 13 Feb. 2021

International Criminal Court – Office of the Prosecutor – 19 Feb. 2021

United Nations – Karim Asad Ahmad Khan – 12 Feb. 2021

International Criminal Court Convicts Dominic Ongwen of 61 Crimes Against Humanity and War Crimes

By: William P. Hendon

Journal of Global Rights and Organizations, Associate Articles Editor

THE HAGUE, Netherlands – On February 4, 2021, the International Criminal Court (ICC) found Dominic Ongwen guilty of 61 crimes against humanity, including four counts of rape, 4 counts of sexual slavery, 2 counts of forced pregnancy, and one count of forced marriage.  Ongwen was a leader of the Lord’s Salvation Army in Uganda.

Dominic Ongwen. Photo Courtesy of ICC.

The ICC had been looking for Ongwen for crimes committed in Uganda from July 2002 to December 2005. In December 2014, Ongwen gave himself up to the Central African Republic’s government who then turned him over to the ICC within ten days. Ongwen’s trial began December 6, 2016.

In 2010, the ICC issued the first warrant for a sex crime committed in furtherance of genocide. Critics say the lack of sex crime prosecutions is because the ICC’s prosecutor, Luis Moreno Ocampo, needed quick and easy cases to build the organization’s reputation. Others say the organization doesn’t prosecute sex crimes because of cultural stigmas and differences among peoples.

Acts of sexual violence have historically been brought under charges of war crimes or crimes against humanity. The ICC has expanded the definition of crimes against humanity to include crimes such as rape or forced pregnancy. Yet, the ICC has only indicted 44 people in its history. Sex crimes remain ignored and overlooked in favor of easier cases with easier evidence.

Seven witnesses testified at trial about their forced sexual encounters with Ongwen. Three of the women were Ongwen’s “wives.” One witness said, “When I started crying he asked me ‘between death and life, what do you choose?’” Another witness said, “I was only crying. I did not say anything nor refuse to sleep with him because I was fearful because he was commander and if I said anything or refused I would be killed.”

The pursuance of convictions of gender-based crimes against women and girls, under Article 7 of the Rome Statute, is pivotal for the ICC. The decision recognizes that biological females are affected by sex crimes differently than their biological male counterparts. It also allows for the organization to publicly announce that sex crimes are mainly gender-based. While this doesn’t mean to discredit other forms of sex crimes (namely, those committed against same-sex people and those committed against non-cisgender people), it is a step forward.

Ongwen was kidnapped by the LRA on his way to school as a boy. A psychiatrist at trial said Ongwen tried to escape the LRA with a few others; upon their capture, Ongwen was forced to skin another kidnappee alive. At trial, he said, “I’m one of the people against whom the LRA committed atrocities.”

For further information, please see:

BBC – Dominic Ongwen – from Child Abductee to LRA Rebel Commander – 4 Feb. 2021

BBC – LRA Commander Dominic Ongwen Appears Before ICC in The Hague – 26 Jan. 2015

ICC – Dominic Ongwen Declared Guilty of War Crimes and Crimes Against Humanity Committed in Uganda – 4 Feb. 2021

ICC – Decision Scheduling a Hearing on Sentence and Setting the Related Procedural Calendar – 4 Feb. 2021

ICC – Rome Statute of the International Criminal Court – 1 July 2002

Modern Ghana — ICC Confirms 70 Charges Against Ugandan LRA Rebel Leader — 21 Jan. 2016

ICC Holds That Their Jurisdictional Authority Extends to Palestine

By: Elizabeth Maugeri

Impunity Watch Staff Writer

THE HAUGE, The Netherlands – The International Criminal Court (ICC) delivered a landmark ruling in response to a request by the ICC Office of the Prosecutor (the Office) to clarify jurisdictional authority in Israeli-occupied Palestine. By a majority vote, the presiding judges held that the Court’s jurisdiction extends to the occupied West Bank areas of East Jerusalem and Gaza.

The panel of the pre-trial chamber judges assigned to the Situation of the State of Palestine – Marc Perrin de Brichambaut, Péter Kovács, and Reine Alapini-Gansou pictured in 2019. Photo Courtesy of Human Rights Watch.

This decision came after the end of a nearly 5-year-long preliminary inquiry as to the possibility of opening an investigation into human rights abuses in the West Bank. Palestine made a formal request for an investigation in 2018, which allowed the Office to initiate one outright. However, the Office still sought guidance from the ICC before doing so.

The preliminary inquiry concluded that Rome Statute Article 53(1), detailing the ability of the Prosecutor’s Office to initiate an investigation, had been satisfied. Through the inquiry, the Office found that: [1] war crimes were being committed in the West Bank, East Jerusalem, and Gaza; [2] potential cases arising would be admissible; [3] there is no reason the investigation would not serve to provide justice.

ICC Prosecutor Fatou Bensouda called upon the Court using Article 19(3) which concludes that the Prosecutor may seek the Court’s ruling regarding questions of jurisdiction or admissibility. She called for a ruling on jurisdiction based on Article 12(2)(a) which states that the Court may grant jurisdiction because Palestine is a party to the Rome Statute and it made a formal request for an investigation in its own territory. She marked the significance of the ruling as a foundational answer to the potential for future litigation. The Prosecutor’s request was then submitted to Pre-Trial Chamber I for the ruling.

The Pre-Trial Chamber I invited Israel and other interested countries to submit relevant observations of human rights abuses to the Chamber for review. These submitted observations, compiled with testimony of victims and an amicus curiae, helped to determine the final decision.

The Chamber held that, despite countervailing international law and recognition, Palestine is a signatory party to the Rome Statute and is therefore governed by ICC terms and must be treated as any other signatory state. UN General Assembly Resolution 67/19, which reaffirmed Palestinians right to self-determination and independence in the occupied Palestinian territory also guided the ruling.

For further information, please see:

Human Rights Watch – Israel/Palestine: ICC Judges Open Door to Formal Probe – 6 Feb. 2021

International Criminal Court – ICC Pre-Trial Chamber I issues its decision on the Prosecutor’s request related to territorial jurisdiction over Palestine – 5 Feb. 2021

International Criminal Court – ICC Pre-Trial Chamber invites Palestine, Israel, interested States and others to submit observations – 28 Jan. 2020

International Criminal Court – Pre-Trial Chamber I: Situation in the State of Palestine – 5 Feb. 2021

International Criminal Court – Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the Situation in Palestine, and seeking a ruling on the scope of the Court’s territorial jurisdiction – 20 Dec. 2019

The Prosecutor v. Ali Muhammad

By: Jamie McLennan 

Impunity Watch Staff Writer

THE HAUGE, Netherlands – Ali Muhammad Ali Abd-Al-Rahman was transferred to the International Criminal Court’s custody on June 9th, 2020, after voluntarily surrendering himself in the Central African Republic. Ali Muhammad is the alleged leader of the Janjaweed, a militia civilian group in Africa.

Ali Muhammad Ali Abd-Al-Rahman at the ICC on October 8, 2020. Photo Courtesy of the ICC.

The first arrest warrant against him lists fifty criminal counts of alleged attacks against civilians in the towns of Kodoom, Bindisi, Mukjar and Arawala between August 2003 and March 2004. The alleged crimes include twenty-two counts of crimes against humanity, murder, forcible transfer of population, imprisonment, rape, torture, persecution and inhumane acts of inflicting serious bodily injury. The list continues with a total of fifty-three counts for his individual criminal responsibility for crimes against humanity allegedly committed in Sudan.

The ICC will not hear a case without the accused individual in custody and present at the hearings. At the time of arrest, there were 27 international warrants for Ali Muhammad that spanned from April 2007 to June 2020. After Ali Muhammad was placed in custody, the initial hearing was scheduled to take place on December 7th, 2020. However, the confirmation of charges has been delayed until February 22nd, 2021. The court reviewed each party’s stance, taking into account the fairness and efficiency of the court’s proceedings, the rights of the suspects and victims, and the overall safety and security of the proceedings moving forward. The prosecutor requested an extended timeline to collect more evidence against Ali Muhammad. After much consideration, the court determined that there should be a later date for the confirmation of charges and later deadlines for the disclosure of evidence by the prosecutor.

The purpose of the confirmation of charges hearing is for the court to evaluate the evidence of the crimes to establish if there are substantial grounds to believe that the accused individual committed the alleged crimes. If the court believes that the evidence is sufficient, the case will then be transferred to the Trial Chamber, where the proceedings will move to the trial phase. Due to COVID-19, the ICC is using a web streaming service to broadcast all hearings with a thirty-minute delay for any private information that may need to be redacted.

For further information, please see:

International Criminal Court- Decision on the Prosecutor’s Request for Postponement- 2 Nov. 2020

International Criminal Court- Press Release- 2 Nov. 2020

International Criminal Court- Redacted First Warrant of Arrest- 27 April 2020

International Criminal Court- Redacted Second Warrant of Arrest- 11 June 2020