ICC Rights Watch

“The Beauty of the law is that There is no Place to Hide.” Trial of Mahamat Said Opens

By: Nikolaus Merz

Impunity Watch News Staff Writer

THE HAGUE, Netherlands – On Monday September 26th, 2022, the trial of Mahamat Said Abdel Kani began in the sixth chamber of the International Criminal Court with opening remarks by the prosecution.

Mr. Said at the opening of his trial. For his role as de facto commander of the Central Office for the Repression of Banditry, Mr. Said is accused of War Crimes and Crimes Against Humanity under the Rome Statute. Photo courtesy of the International Criminal Court.

The Central African Republic (“CAR”) devolved into civil conflict in 2012, as the anti-government militia group the “Seleka” began armed resistance against President François Bozizé’s government. As the Seleka advanced and occupied the CAR capital of Bangui, they incorporated existing institutions and structures into their organization. In particular, the Central Office for the Repression of Banditry, or “OCRB,” was repurposed by the Seleka to suppress perceived resistance to the militia. Mr. Said, having been appointed de-facto commander of the OCRB by his superiors, had full authority over the Seleka elements within the OCRB in Bangui.

Shortly after establishing a basis of control, Seleka began persecuting people believed to be threats to its power; predominantly targeting Christians, members of the Gbaya tribe, and others with perceived ties to the government of François Bozizé. The OCRB under Seleka control is accused of extorting, harassing, and abducting civilians – often without evidence or justification.

Once in OCRB custody, victims would be held under inhumane conditions, including cramped, overcrowded cells, as well as pits in the earth. Witnesses are expected to testify that the few times they could leave the cells were to be beaten by members of the Seleka. Victims were frequently tortured by a variety of methods, including (but not limited to): being whipped while having gravel on their backs (so as to enhance the pain of the whipping), having their body parts be pulled with pliers, and having their limbs bound in such positions to cause extreme agony and even partial paralysis.

The arrest warrant for Mr. Said was issued in 2019, and he only recently entered International Criminal Court (“ICC”) custody in late 2021. Following a pre-trial decision confirming the charges, Mr. Said stands accused of seven counts of War Crimes and Crimes Against Humanity stemming from eighteen instances of “attritional violence.” The counts include deprivation of liberty, torture, outrages upon personal dignity, and persecution among others.

At the beginning of his trial, Mr. Said pled not guilty to all charges against him.

Prosecutor Khan, delivering the opening statement of the prosecution, highlighted the resolve of Mr. Said’s victims, as well as the long and arduous journey the case has endured to date. Prosecutor Khan further emphasized the sense of justice the case invoked, which reverberated to the core principles of the ICC, saying in simple yet powerful terms “the beauty of the law is that there is no place to hide.” The prosecution is expected to call 43 witnesses during the course of the trial.

The Court will convict Mr. Said only if the charges have been proven beyond a reasonable doubt.

For further information, please see:

ICC – Case Information Sheet – The Prosecution v. Mahamat Said Abdel Kani – Aug. 2022

ICC – Decision on the confirmation of charges against Mahamat Said Abdel Kani – 9 Dec. 2021

ICC – Public Redacted Version of ‘Warrant of Arrest for Mahamat Said Abdel Kani’ – 7 Jan. 2019

ICC – Said trial opens at International Criminal Court – 26 Sept. 2022

IntlCriminalCourt – Said case: Trial opening, 26 September 2022 – 1st session FLOOR – 26 Sept. 2022

Prosecution of Islamic Republic of Afghanistan Continues After United States Is Dropped from Investigation

By: Cody Lee Nagle

Journal of Global Rights and Organizations, Associate Articles Editor

THE HAGUE, Netherlands — Proceedings are currently underway at the International Criminal Court (ICC) to determine whether the Court’s investigations into war crimes in Afghanistan are allowed to resume. The initial investigation began March 5, 2020, when the ICC prosecutor, Karim A. Khan, requested permission from the court to look into reported war crimes in Afghanistan by both Afghanistan and the United States.  Crimes alleged against the Taliban and ISIS affiliates include extreme deprivations of physical liberty, sexual abuse, and persecution of specific groups based on gender or political affiliation. The United States is accused of torture, sexual abuse and offenses to personal dignity both within Afghanistan and in “black sites” around the world.

Karim Khan being sworn in as ICC Prosecutor. Photo courtesy of the International Criminal Court.

Prosecution of Islamic Republic of Afghanistan Continues After United States is Dropped from Investigation

Despite extreme opposition and a lack of cooperation by the U.S., the investigation was approved unanimously by the Court. Some may remember the strong rebuke by former Secretary of State Mike Pompeo upon learning of the investigation into U.S. actions overseas.

Shortly after the investigation began, on March 26, 2020, the process was halted when the Afghanistan government appealed to the court for a chance to investigate internally, instead of using ICC resources. Prosecutor Khan commended the cooperation and constructive engagement by the Government of Afghanistan, noting the enhanced accountability being enjoyed by victims of the atrocities in Afghan territories.

When Afghanistan’s government fell to the Taliban in August of 2021, cooperation with the investigation ended abruptly. At that time the Prosecutor requested the Pre-Trial Chamber allow the investigation by his office to resume. However, Khan only requested authority to investigate the allegations of war crimes against Islamic State- Khorasan Province and the Taliban. Meaning other investigations previously included, such as those into the United States and CIA use of torture, would be deprioritized.

In his request Khan pointed to the gravity and scale of continuing crimes within Afghanistan, especially since the takeover of the Taliban. He also noted that doing any sort of on the ground investigation would likely be inadequate and ineffective given the lack of access to victims and information from the new government.

The decision has received widespread condemnation across human rights organizations who had hopes of holding the United States accountable for its actions within the borders of Afghanistan as well as in offshore sites in Poland, Romania and Lithuania. Even the Pre-Trial Chamber, in a separate decision, offered a slight rebuke to Khan for choosing to investigate specific parties instead of focusing on crimes first to then determine who was responsible.

While it is unclear exactly how the Chambers will rule on this request, recent developments in the court point to a decision coming soon. In October the Chamber requested the UN Secretary General to submit to the court a statement regarding who is currently representing the Islamic State of Afghanistan in order to determine procedures and set timelines for a possible resumption of the investigation.

For further information, please see:

Al Jazeera – ICC prosecutor defends dropping US from Afghan war crime probe – 6 Dec. 2021

Al Jazeera- Analysis: Can the ICC deliver justice in Afghanistan? – 4 Nov 2021

Foreign Affairs – The ICC’s Flawed Afghan Investigation: Why the Court Shouldn’t Let America Off the Hook – 3 Nov. 2021

ICC- Afghanistan: ICC Pre-Trial Chamber II requests the UNSG and the Bureau of the ASP of the ICC to submit information on the identification of the authorities currently representing the Islamic Republic of Afghanistan- 8 Oct. 2021

ICC- Decision on submissions received and order to the Registry regarding the filing of documents in the proceedings pursuant to articles 18(2) and 68(3) of the Statute – 8 Nov. 2021

ICC- Situation in the Islamic Republic of Afghanistan

ICC- Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan QC, following the application for an expedited order under article 18(2) seeking authorisation to resume investigations in the Situation in Afghanistan – 27 Sept. 2021

International Federation for Human Rights – Resumption of the ICC investigation into Afghanistan, while welcome, should not exclude groups of victims or crimes within the Court’s jurisdiction – 28 Sept 2021

ICC Closes 17-Year-Long Investigation into Colombia for War Crimes and Crimes Against Humanity

By: Veronica Devries

Journal of Global Rights and Organizations, Senior Associate Editor

COLOMBIA – On October 28, 2021, the International Criminal Court (ICC) said that it would close a preliminary examination into Colombia for war crimes and crimes against humanity. The preliminary examination was originally opened in 2004 and was the longest in the history of the court.

Colombian President Ivan Duque (left) with ICC Prosecutor Karim Kahn (left). Photo courtesy of ICC.

ICC prosecutor Karim Kahn arrived at a formal agreement with Colombian President Ivan Duque, in which Kahn states that Colombia “lives up to its international obligations as well as its regulatory obligations based on the principle of complementarity.” Through this agreement, Duque formally commits to supporting Colombia’s war crimes tribunal and to continue sharing information with the ICC.

The ongoing Colombian armed conflict has spanned nearly six decades. A peace deal was struck in 2016 with the Revolutionary Armed Forces of Colombia (FARC) rebels, but the conflict continues. As a result of the FARC deal, however, the Special Jurisdiction for Peace (JEP) was created. The JEP is a justice tribunal, trying ex-rebels and military officials for crimes related to the decades-long conflict. Khan stated his support for the JEP, announcing that this new cooperation agreement would help the JEP to function. Some have criticized the JEP for being too lenient, while Duque has also been criticized for not providing enough support to the JEP.

Khan noted that closing the preliminary examination does not equate to and end of the Office of the Prosecutor’s (OTP) engagement with Colombia. He also pointed out that the OTP can reassess its decision to close the investigation, should Colombia not comply with its responsibilities.

This decision has concerned members of the international community. For example, Human Rights Watch (HRW) Americas director, Jose Miguel Vivanco, criticized the decision to close the preliminary examination. He wrote on Twitter, “The ICC prosecutor’s decision to close the Columbia preliminary examination…is premature, misinformed, and detrimental to justice… The country’s transitional justice system may now be an easier target.” HRW also submitted a letter to the ICC prosecutor on September 30, advocating against the closing of the preliminary examination into the situation into Colombia.

For further information, please see:

Colombia Reports – International Criminal Court closes Colombia probe – 28 Oct. 2021  

Human Rights Watch – Colombia: Letter to the Prosecutor of the International Criminal Court – 30 Sept. 2021  

ICC – ICC Prosecutor, Mr. Karim A. A. Khan QC, concludes the preliminary examination of the Situation in Colombia with a Cooperation Agreement with the Government charting the next stage in support of domestic efforts to advance transitional justice – 28 Oct. 2021

Reuters – ICC Closes Preliminary War Crimes Examination into Colombia After 17 Years – 28 Oct. 2021  

Ireland Signals Continued Commitment to ICC through Artwork Donation

By: Jamie McLennan

Impunity Watch Staff Writer

THE HAGUE, Netherlands – On March 18, 2021, the Ambassador of The Netherlands and the Ambassador of Ireland unveiled a new artwork that will stand at the International Criminal Court. The newly elected ICC President, Judge Piotr Hofmanski accepted the sculpture at a ceremony. President Judge Piotr Hofmanski will serve as President for a three-year term, alongside two other Vice Presidents. Responsibilities of the ICC President include attendance of all ceremonial events of the ICC, including the unveiling of such art.

President Judge Hofmanski and Ambassador Kelly at the ICC. Photo Courtesy of the ICC.

The ICC holds a series of art pieces from other member countries that reflect each country’s cultural heritage and the international community’s fight against impunity. The donated artwork includes of the Government of Belgium, Canada, Cyprus, Denmark, Japan, Mexico, and The Netherlands.

The newly donated artwork is a set of two green benches sculpted by Irish artist Fergus Martin. The benches titled “Oak” were placed alongside the Court’s landscape and signify an oak tree’s strength, a traditional symbol of justice in Ireland. 

Ireland has a longstanding relationship with the ICC. In 1998, the country signed the Court’s founding treaty, the Rome Statute, and ratified their membership in 2002. Despite recent criticism of the ICC, Ireland vocalizes their support of the Court by commissioning the art piece.

As one of the founding State Parties, Irish Ambassador Kevin Kelly spoke about the importance of peace and justice to achieve stability and development. He also spoke about Ireland’s continual approval of the ICC and their commitment to ending impunity for those who commit grave crimes against humanity. Kelly commended the many victorious cases of the ICC that punished individuals involved in war crimes and genocide.

In response, President Judge Piotr Hofmanski thanked Ireland for its generosity to the ICC and other related institutions. Since 2004, Ireland has donated nearly 1.3 million euros for the Trust Fund for Victims (TFV). The TFV advocates and assists the most vulnerable victims of crimes within the jurisdiction of the ICC. The fund provides court-ordered reparation awards and other payments for victims of genocide and war crimes.

Ambassador Kelly promised that Ireland would continue to aid and support the ICC in its endeavor for peace, justice, and mediation. 

For further information, please see:

ICC – Ireland Continues its Support of Reparative Justice – 14 Dec. 2020

ICC – Irish Delegation Unveils Artwork Donation – 18 Mar. 2021

ICC – New ICC Presidents Elected for 2021-2024  – 11 Mar. 2021

ICC Closes Preliminary Examination into War Crimes Committed by British Troops in Iraq

By: Rebecca Buchanan

Impunity Watch Staff Writer

THE HAGUE, Netherlands – On December 9, 2020, the Prosecutor for the International Criminal Court (ICC) closed the preliminary examination into alleged war crimes committed by British troops in Iraq from 2003 to 2008. The Prosecutor’s decision to close this examination marks an end to a long and tumultuous push for justice by Iraqi civilians and international human rights organizations.

British Troops in Iraq during Operation Telic. Photo Courtesy of Anadolu Agency.

The preliminary examination into the situation in Iraq was filed in 2004 but was closed by the ICC on February 9, 2006, when it failed to unearth a sufficient number of claims to meet the gravity threshold of the Rome Statute. The requirements of the gravity threshold established in Article 17(1)(d) of the Rome Statute are indistinct. Historically, the Court has considered whether the alleged conduct is systematic or large scale, the number and severity of the complaints, and the position of the persons or institutions responsible for the harm.

On May 13, 2014, ICC Prosecutor Fatou Bensouda announced the re-opening of the Iraq/United Kingdom examination after reports from the European Center for Constitutional and Human Rights (ECCHR) and the Public Interest Lawyers (PIL) alleged that the detainee abuse, rape, and torture by British troops in Iraq was widespread and systematic. In its 2017 Report on Preliminary Examination Activities, the ICC Office of the Prosecutor announced that the examination had yielded enough evidence to believe that members of the British armed forces had committed war crimes within the Court’s jurisdiction against Iraqi civilians in their custody.

The Final Report on the Situation in Iraq/UK issued by the Office of the Prosecutor on December 9, 2020 affirmed the findings of the 2017 report. The Prosecutor underscored the believability of the allegations of willful killing, murder, torture, cruel and inhumane treatment, and rape and sexual violence by British forces against Iraqi detainees. The Final Report highlighted the failure of the British Government to effectively address these reports at the time of the alleged offenses and noted the Army’s “lack of genuine effort” to carry out active investigations during the conflict. The report stated that ongoing national efforts to investigate and prosecute these crimes were largely insufficient.

According to the Prosecutor, the decision to close the preliminary examination was an issue of the charter, not of the sufficiency of evidence. The Rome Statute allows the ICC to pursue an investigation only if evidence shows that no relevant proceedings have been undertaken by the responsible nation, or that proceedings have been disingenuous as a result of the Nation’s unwillingness to prosecute or its desire to protect perpetrators from justice. Although the nature, severity, and prevalence of the crimes committed by British troops fell within the ICC’s jurisdiction, the Prosecutor could not find sufficient evidence that the United Kingdom was disingenuous or obstructionist in its domestic proceedings.

This decision has angered the international community. Human Rights Watch said the decision not to open an investigation would “fuel perceptions of an ugly double standard in justice, with one approach for powerful states and quite another for those with less clout.” Amnesty International called the decision a “road-map for obstructionism” that “rewards bad faith and delays” in the prosecution of war crimes. In the conclusion of the Final Report, the ICC Prosecutor noted that although the UK’s domestic legal process fell short of unwillingness or disingenuity, there “continue to be areas of concern.”

For further information, please see:

Amnesty International – ICC Decision on UK Military in Iraq Rewards Obstructionism – 10 Dec. 2020

Human Rights Watch – United Kingdom: ICC Prosecutor Ends Scrutiny of Iraq Abuses – 10 Dec. 2020

International Crimes Database – Gravity Threshold Before the International Criminal Court: An Overview of the Court’s Practice – Jan. 2016

International Criminal Court – Preliminary Examination Iraq/UK Closed – 9 Dec. 2020

International Criminal Court – Prosecutor of the International Criminal Court, Fatou Bensouda, Re-opens the Preliminary Examination of the Situation in Iraq – 13 May 2014

International Criminal Court – Situation in Iraq/UK Final Report – 9 Dec. 2020