ICC Rights Watch

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

Olympic Medals and Championships… at What Cost?

By: Melissa N. Berouty 

Journal of Global Rights and Organizations, Managing Editor of the News

TOKYO, Japan – A glimpse at the dictionary will tell you that a coach is “a person who teaches and trains an athlete or performer.” Yet, any athlete knows that the role of a coach stretches far beyond this simple definition. A coach can serve as a mentor, motivator, or even a catalyst for a young athlete to fall in love with their respective sport. Thus, a coach possesses a great deal of responsibility, power, and influence. However, for decades in Japan, coaches have prioritized Olympic medals and Championships over the safety and well-being of their child athletes, subjecting them to brutal physical and verbal beatings.

Child athlete abuse in the quest for Olympic gold medals. Photo Courtesy of Humanium.

While one might commonly hear tough coaches make tougher players, Japanese coaches utilize a training tactic that far exceeds tough coaching, referred to as taibatsu, or corporal punishment. Japanese child athletes report being “punched in the face, kicked, beaten with objects like bats or bamboo kendo sticks, being deprived of water, choked, whipped with whistles or racquets, and being sexually abused and harassed.” According to Human Rights Watch, in 2020, 425 current and former child athletes reported physical abuse at the hand of their coaches or trainers.

Recently, Japan amended the Child Welfare Act of 1947 to prohibit corporal punishment. While this prohibition does extend to athletics, the protection it offers child athletes is inadequate and irregularly enforced. Similarly, the 2013 Declaration on the Elimination of Violence in Sports and the 2019 government codes put forth by various leading sports organizations fails to specifically address child athlete abuse. Without clear legal implications for a failure to abide, these reforms carry little to no weight in ensuring the safety and welfare of child athletes.

“I was hit so many times I can’t count.” Photo Courtesy of Human Rights Watch.

Under international law, governments are obligated to protect children’s right to not only participate in athletics but to participate in a safe environment, free of both abuse and violence. This right is detailed in the Convention on the Rights of the Child, which Japan is a party to. With this, it is imperative for leading Japanese sports organizations, such as the Japan Sports Agency, the Japan Sport Association, and the Japanese Olympic Committee, to create clear and comprehensive reporting, investigation, and sanction protocols for child athlete abuse. Without the correction of these institutional failures, child athletes will remain vulnerable.

The Olympics are marketed as an idealistic and extraordinary meeting of the world’s most prominent and gifted athletes. To preserve this façade, numerous nations, from Japan to the United States, prioritize the quest for medals over athletes’ basic human rights. Meanwhile, these athletes, child and adult alike, still represent their countries with pride and dignity. But, at what cost?

In a matter of months, we will all sit down in front of our televisions to watch the Olympic and Paralympic Games in Tokyo. Here, the Japanese government has a unique opportunity to set the record straight and “serve as a model for how other countries should end child abuse in sports.” Japan should take the lead in demonstrating that child athletes’ health and well-being do not just simply matter, but that they are the priority.

Participation in athletics should be a root of joy, empowerment, and growth, not fear, abuse, and manipulation. While winning may be the ultimate goal, one day, these child athletes will move on from competition and the global spotlight. As you view the Olympics and Paralympics this summer, keep in mind that behind every uniform is a human being. A human being that should be offered all fundamental human rights both in and out of athletic competition. The abuse of child athletes is not exclusive to Japan and remains a pressing issue worldwide.

For further information, please see:

End Violence – Japan Prohibits all corporal punishment of children – 28 Feb. 2020

Human Rights Watch – Pressure Builds on Japan to Protect Child Athletes – 28 Jan. 2021

Human Rights Watch – I Was Hit So Many Times I Can’t Count: Abuse of Child Athletes in Japan – 20 July 2020

Merriam Webster Dictionary – Coach – 2 Apr. 2021

 

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