By: Hannah Gavin

Impunity Watch Staff Writer

THE HAAG, The Netherlands – This summer United States President Donald Trump issued an executive order leveling sanctions against the International Criminal Court’s lead prosecutor Fatou Bensouda and officials on the court.

The sanctions were deemed a response to the ICC’s decision to investigate U.S. crimes in Afghanistan since the early 2000s. The ICC’s lead prosecutor asked for an investigation to be opened to examine the U.S.’s role in the country. Specifically, Bensouda wanted to look into the ways in which detainees were interrogated, and whether soldiers had committed war crimes including torture, cruel treatment, and sex crimes. The U.S. use of torture has been under a magnifying glass for decades and was only heightened by several public incidents of torture to detainees in U.S. custody, primarily in the Middle East and U.S. military prisons.   

The sanctions imposed cut off Bensouda and her colleagues from assets in the U.S. as well as from all commercial or financial transactions with U.S. banks and companies. This blow will turn not only American based companies away from the court but will affect the individual’s ability to utilize non-U.S. companies and banks who refuse their service for fear that they may be subject to sanctions for not complying. Sanctions have historically been utilized for terrorists, and to protect international peace and national security. They are not intended to be leveled against prosecutors who are working towards justice for international crimes. In addition, individuals have had severe restrictions placed on them regarding entrance to the U.S. 

This month a group of NGOs, faith-based groups, legal professionals, experts and former government officials released a letter in response to the sanctions. The signatures on the document comprised of 58 of the United States’ most respected organizations, colleges and professionals. They all unequivocally condemned the President’s actions. The group cited their reason for publishing the letter, “[I]t is uniquely dangerous, extreme, and unprecedented to utilize a mechanism designed to penalize criminals, their aiders, and abettors, against an independent judicial institution.” The letter went on to emphasize that the U.S. has placed itself on the side of impunity over justice. This effectively places the U.S. on the world stage against righteousness.  

In the first year of his term, Donald Trump chose the slogan “America First” to represent some of his policies and his ideals for the nation. He has shown this to mean that he protects the America he wants to. Immigrants and “outsiders” are not included. Although his apprehension toward an investigation of U.S. troops is not surprising, it is unsettling. As one of the leading nations in the World, with troops stationed in nearly every country globally, we have a responsibility. If we choose to place ourselves on the world stage as a protector, we have a duty to take responsibility for actions that are contradictory to that. We must stand on the side of justice, or we risk allowing impunity to reign.

For further information, please see:

Human Rights Watch – Non-Governmental Organizations, Faith-Based Groups, Legal Professionals, Experts, and Former Government Officials Unequivocally Oppose U.S. Sanctions Against the International Criminal Court – 21 Sept. 2020

NPR News – Trump Administration Sanctions ICC Prosecutor Investigating Alleged U.S. War Crimes – 2 Sept. 2020

By: Christian González

Journal of Global Rights and Organizations, Associate Articles Editor

THE HAGUE, Netherlands – Ali Muhammad Ali Abd-Al-Rahman, an alleged leader of the Janjaweed militia in Sudan and commonly known as “Ali Kushayb”, has been transferred into International Criminal Court (ICC) custody on June 9^th, 2020. Charges against Abd-Al-Rahman include various crimes against humanity and war crimes. The confirmation hearing for these charges is scheduled provisionally for December 7^th, 2020.

A Sudanese national, Mr. Abd-Al-Rahman has been accused of leading thousands of Janjaweed (Arabic for “mounted gunman”) soldiers in the Darfur region of western Sudan. The Janjaweed, composed mainly of nomadic tribesmen of Arab descent, had been conducting aggressive raids on villages throughout Darfur in 2003 and 2004. Because the villages targeted were known sources of recruitment for the rebel armies involved in the Second Sudanese Civil War, it is believed that the Janjaweed were supported by the government of Sudan.

Mr. Abd-Al-Rahman’s involvement with the Janjaweed allegedly included acting as a mediator between Janjaweed leadership and the Sudanese government, as well as enlisting, arming, supplying, and funding troops. He has been accused of both ordering troops to commit and personally participating in crimes against humanity and war crimes against civilians. These actions were allegedly conducted in a joint government-Janjaweed counter-insurgency campaign.

Two warrants for arrest against Mr. Abd-Al-Rahman had been issued. The first, issued on April 27^th, 2007, lists 50 counts of crime. These crimes were composed of twenty-two counts of crimes against humanity that include deportation, imprisonment, torture, inhumane acts of inflicting serious bodily injury and suffering, and rape; and twenty-eight counts of war crimes that include violence to life and person, outrage upon personal dignity in humiliating and degrading treatment, intentional attacks on a civilian population, pillaging, rape, and destroying or seizing property. These acts were conducted from August 2003 to March 2004 in the towns of Kodoom, Bindisi, Mukjar, and Arawala and constitute violations of articles 25(3)(a) and 25(3)(d) of the Rome Statute respectively. The second warrant, made public on June 11^th, 2020, adds three charges of murder and other inhumane acts done in Deleig in March 2004.

After voluntarily turning himself in to authorities in the Central African Republic, Mr. Abd-Al-Rahman was transferred to ICC custody on June 9^th, 2020, and on June 15^th, 2020 his identity was confirmed at a hearing before Judge Rosario Salvatore Aitala. The judge ensured that Mr. Abd-Al-Rahman was aware of the charges being brought against him. When asked about them, Mr. Abd-Al-Rahman stated that these charges were “untrue.”

The confirmation hearing scheduled for December 7^th will be held to determine if there is sufficient evidence to establish substantial grounds of a belief that Mr. Abd-Al-Rahman did indeed commit each of the alleged crimes. If any or all charges are confirmed, the case will move on to the trial phase. Mr. Cyril Laucci is serving as defense counsel for Mr. Abd-Al-Rahman. There is currently no representation for the victims.

For further information, please see:

International Criminal Court – Case Information Sheet: Situation in Darfur, Sudan – 15 June 2020

UN News – Arrest of Sudanese war crimes suspect ‘extremely significant’: UN rights chief – 9 June 2020

Slate – Who Are the Janjaweed? – 22 July 2004

International Criminal Court – Rome Statute of the International Criminal Court – 17 July 1998

Reuters – Sudan war crimes charges are untrue, suspect say – 15 June 2020

YouTube, IntlCriminalCourt – Ali Muhammad Ali-Al-Rahman case: initial appearance, 15 June 2020 ENGLISH – 15 June 2020

By: Hannah Gabbard

Journal of Global Rights and Organizations, Editor-In-Chief

WASHINGTON, District of Columbia – On October 1, 2020, the Open Society Justice Initiative, a public interest law center dedicated to human rights, and four international law professors filed a complaint in federal court against the United States government challenging Executive Order 13928.

Executive Order 13928, Blocking Property of Certain Persons With the International Criminal Court was issued on June 11, 2020, and implemented under the Treasury Department Office of Foreign Assets Control regulation promulgated on September 30, 2020. Citing the U.S. Constitution, the International Emergency Economic Powers Act (IEEPA), the National Emergencies Act, the Immigration and Nationality Act, and Title III of the United States Code, Executive Order 13928 declared a national emergency and threatened sanctions against International Criminal Court (ICC) officials. Executive Order 13928 specifies that the ICC action including “illegitimate assertions of jurisdiction over personnel of the United States and certain of its allies, including the ICC Prosecutor’s investigation into actions allegedly committed by United States military, intelligence, and other personnel in or related to Afghanistan” poses an “unusual and extraordinary threat to the national security and foreign policy of the United States.”

The plaintiffs primarily allege that Executive Order 13928 violates their First Amendment right to freedom of speech. Moreover, plaintiffs allege that the Executive Order is a violation of the Due Process Clause of the Fifth Amendment, is ultra vires under the IEEPA, and is a violation of the Administrative Procedure Act. The plaintiffs’ prayer for relief includes a declaration that the Executive Order violates each of their alleged claims, a request that the Court enjoins the defendants from enforcing the Executive Order against the plaintiffs, and for incurred costs and attorneys’ fees. 

In March 2020, the ICC Appeals Chamber authorized the ICC Prosecutor to begin an investigation into alleged crimes against humanity and war crimes committed during the armed conflict in Afghanistan since May 2003. Afghanistan ratified the Rome Statute in 2003 which establishes the ICC’s jurisdiction over designated crimes committed in Afghanistan or by its citizens. This nexus implicates United States citizens for any conduct impermissible under the Rome Statute committed since 2003. However, due to restrictions in place throughout the coronavirus pandemic, the ICC is not currently taking any investigative steps in Afghanistan.

Since President Trump issued Executive Order 13928, numerous ICC member countries, human rights organizations, and legal scholars have spoken out against this action and indicated their support for the mission and role of the ICC as an independent judicial organization. Markedly, Human Rights Watch highlighted that the ICC is the “latest target of his administration’s contempt for the global rule of law.”

In attacking an institution that aims to provide accountability for the perpetrators of human rights abuses, the Trump administration further weakens its global leadership on human rights and the United States’ relationship with international institutions. As the election in the United States unfolds over the next month, the likely posture assumed towards the ICC hangs in the balance.

For further information, please see:

Human Rights Watch – US: Lawsuit Challenges ICC Sanctions – 2 Oct. 2020

The Guardian – Human rights lawyers sue Trump administration for ‘silencing’ them – 1 Oct. 2020

Human Rights Watch – Donald Trump’s Attack on the ICC Shows His Contempt for the Global Rule of Law – 6 July 2020

Just Security – Dissecting the Executive Order on Int’l Criminal Court Sanctions: Scope, Effectiveness, and Tradeoffs – 15 June 2020

By: Shane Kelly

Impunity Watch Staff Writer

CENTRAL AFRICAN REPUBLIC, Africa – On October 1, 2020, the Pre-Trial Chamber II of the International Criminal Court (“ICC”) rejected the request of Jean-Pierre Bemba Gombo to appeal the decision on his claim for compensation and damages following the overturning of his conviction and subsequent release from prison.

On June 8, 2018, the Appeals Chamber of the ICC acquitted Bemba from charges of war crimes and crimes against humanity. The acquittal reversed Trial Chamber III’s 2016 majority decision finding Bemba guilty under Article 28(a) of the ICC Rome Statute as a person acting as a military commander with control over Mouvement de Libération du Congo (“MLC”) troops.

The MLC were called in by then-president, Ange-Félix Patassé, to subdue an attempted coup. The MLC troops, under Bemba’s leadership, were alleged of the crimes against humanity of murder and rape and the war crimes of murder, rape, and pillaging. The ICC arrested Bemba and took him into custody in 2008, while also freezing his assets and seizing his property. Bemba remained in custody through his conviction in 2016 and served another two years in prison per his eighteen-year sentence.

After his release from prison, Bemba filed a claim for compensation and damages under Article 85 of the Rome Statute. Bemba sought sixty-nine million euros for his time spent in prison, legal costs, and the loss in value of his frozen assets. On May 18, 2020, the Pre-Trial Chamber II denied Bemba’s claim for compensation and damages. The court ruled that Bemba “failed to establish that he had suffered a grave and manifest miscarriage of justice.” Bemba then requested leave to appeal the decision and submitted that the decision was appealable and gave rise to twelve issues that would meet the appeal requirements of Article 82(1)(d).

The court found that the issue was not appealable. Articles 81 and 82 specifically list issues that are subject to appeal, and decisions under Article 85 do not qualify. The court then considered Bemba’s ability to appeal under Rule 155 which allows a party to request leave to appeal any decision “that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.” However, the court observed that Article 82(1)(d) limits such a route only to interlocutory appeals. Because the decision dismissed the claim in part for lack of jurisdiction, the claim fell outside the scope of appealability in the ICC.

Bemba’s request for leave to appeal the denial of his compensation claim was therefore rejected. The court curiously acknowledged in its original decision denying the claim that “10 years is a significant amount of time to spend in custody, likely to result in personal suffering, which would trigger compensation” in many national legal systems.

For further information, please see:

International Criminal Court – Decision on the Request for Leave to Appeal the ‘Decision on Mr Bemba’s Claim for Compensation and Damages’ – 1 Oct. 2020

International Criminal Court – Case Information Sheet – Updated Mar. 2019

Courthouse News – ICC Rejects Compensation Claim by Former Congo VP Bemba – 18 May 2020

By: William Krueger

Impunity Watch Staff Writer

THE HAGUE, Netherlands – The trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mohamed (Al Hassan) began back on July 14^th, 2020 in the International Criminal Court (ICC) in Trial Chamber X. Al Hassan, an alleged member of Ansar Eddine/Al Qaeda, has been charged with crimes against humanity and various war crimes.

The charges stem from April 2012 to January 2013 where the prosecutor believes that Al Hassan acted as the de facto chief of an Islamic police force that, with his authority, committed acts of violence against civilians in the city of Timbuktu, Mali. Furthermore, the prosecutor believes that Al Hassan had acted in the enforcement of a policy of forced marriages that led to the enslavement and rape of women in the Timbuktu region. The first day of trial consisted of a reading of the charges in the court; after which the Chamber was assured that Al Hassan fully understood what he was being accused of. At this point in the trial, Al Hassan has not plead guilty or not guilty.

On September 8^th, 2020 the court had a witness for the prosecution, Harald Doornbus, sworn in under Rule 66 of the Rules of Procedure and Evidence used by the ICC. Doornbus identified himself as a freelance journalist who had been working in the country of Mali in January 2013. Doornbus had gone into the bank and the Hotel La Maison, which were transformed into a police station and the Sharia court for the Islamic police respectively. In both locations, he had collected documents written in Arabic. Pictures taken by Doornbus and the documents he had collected were entered into evidence by the Prosecutor. One of the documents collected by Doornbus had two women in niqabs with dress code instructions in Arabic and French. The Prosecution then rested their examination of Doornbus.

The Legal Representatives of the Victims then questioned Doornbus about how the population of Timbuktu reacted to the news of the militants fleeing upon action by Malian and French forces. The Defense then had their opportunity to cross-examine Harald Doornbus. The Defense questioned Doornbus on his relationship with the ICC and his conduct and connections in Mali. The factual integrity of the bank was also brought into question as Doornbus had to get entry from an unknown person who had a key to the location. Doornbus also admitted he had to work quickly and as a result, some documents that were not collected or photographed may have been missed in his haste. He also did not take some documents when visiting the Hotel La Maison as the manager was there and Doornbus had concerns about offending him by taking the paperwork. The Defense also brought up how Doornbus had previously recovered documents overlooked by the FBI in Benghazi, Libya.

On September 18^th, 2020, Al Hassan’s associate counsel, Nicoletta Montefusco, has filed a motion to be withdrawn from the defense team without the consent of Al Hassan or lead counsel Melinda Taylor. Currently, the public does not know of the result of this motion by Montefusco. The trial of Al Hassan continues on September 21^st, 2020. As of October 3^rd, 2020 the Prosecution continues to build their case against Al Hassan.

For further information, please see:

International Criminal Court – Case Information Sheet: Situation in Mali – 14 Jul. 2020

International Criminal Court – Al Hassan Trial Opens at International Criminal Court – 14 Jul. 2020

International Criminal Court – 08 September 2020 – Session 19 – 08 Sep. 2020

International Criminal Court – Request for Withdrawal – 18 Sep. 2020