The Middle East

ICC Authorizes Investigation into Afghanistan

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On March 5, 2020, the Appeals Chamber of the International Criminal Court (“ICC”) authorized the Prosecutor to begin investigations into alleged war crimes and crimes against humanity committed in Afghanistan dating back to May 1, 2003.  All sides of the armed conflict may now be subject to investigation.

A crater caused by a car bombing in Kabul, Afghanistan. The Taliban claimed responsibility for the attack. Photo Courtesy of the New York Times.

This judgement amended a previous decision of Pre-Trial Chamber II, which had unanimously rejected the Prosecutor’s previous request for authorization to conduct an investigation on April 12, 2019.  Pre-Trial Chamber II determined that an investigation into the Situation in Afghanistan would not serve the interests of justice, and successful investigation and prosecution would be unlikely.  In the resulting appeal of this decision, the Appeals Chamber found that the Pre-Trial Chamber erred in considering the “interests of justice” factor.  According to the Appeals Chamber, the Pre-Trial Chamber should have addressed only whether there was a reasonable factual basis for the Prosecutor to proceed with an investigation. Additionally, the Appeals Chamber found that the Prosecutor had indeed met that burden during the Pre-Trial proceedings.

This decision has drawn criticism from the United States government, who may now be the subject of prosecution in the Court.  The United States is not a state party to the ICC and has never been since the Court’s inception. While speaking with reporters in Washington, U.S. Secretary of State Mike Pompeo called the ruling a “truly breathtaking action by an unaccountable, political institution masquerading as a legal body.”  Last year, the United States government revoked the visa of ICC chief prosecutor Fatou Bensouda after she indicated her intentions to pursue the case. Pompeo previously stated the United States would revoke the visas of any staff involved with prosecuting war crimes in Israel, as well.

The Appeals Chamber decision has furthered the Court’s goal of becoming a truly independent body, and holding any nation accountable for its actions, however upsetting the United States may cause allied nations to distance itself from the Court.  While other United States administrations have been cautiously neutral in supporting the ICC, the Trump administration has taken a firm stance against the Court and its legitimacy. The absence of any significant enforcement mechanism in the Court leaves the ICC only as powerful as the member nations deem it to be.  If the United States chooses to not comply with ICC demands, it may frustrate prosecution attempts with little recourse, and delegitimize the Court.

For further information, please see:

International Criminal Court – Appeals Chamber Decision on the Situation in Afghanistan – 5 Mar. 2020

International Criminal Court – ICC Appeals Chamber Authorises the Opening of an Investigation – 5 Mar. 2020

The New York Times – I.C.C. Allows Afghanistan War Crimes Inquiry to Proceed, Angering U.S. – 5 Mar. 2019

International Criminal Court – ICC Judges Reject Opening of an Investigation Regarding Afghanistan Situation – 12 Apr. 2019

Man In Turkmenistan Is Missing After Revealing Sexual Orientation

By: Melissa Berouty

Journal of Global Rights and Organizations, Associate Articles Editor

ASHGABAT, Turkmenistan — According to Freedom House’s index of basic freedoms, Turkmenistan is rated below North Korea and only above Syria. Under Turkmen law, the government has the authority to regulate behavior in an attempt to “construct the model Turkmen citizen.” Turkmen authorities exercise its control by brutally punishing any form of religious or political expression that does not align with the Turkmen government. Additionally, the Turkmen government limits the nature of print and electronic media available to its citizens.

The Turkmen government has a long history of enforced disappearances, where individuals’ whereabouts or fates serving long sentences in Turkmenistan are unknown. For more than ten years, the Turkmen government has prohibited loved ones, lawyers, and the outside world access to the imprisoned. Prove They Are Alive, a campaign committed to ending enforced disappearances in Turkmenistan, has reported at least 121 cases of enforced disappearances. Of these 121 cases, many are suspected to be detained in the Ovadanepe prison, which has a reputation for extreme conditions.

On October 24, 2019, it was reported that Kasymberdy Garayev was feared to be missing after allegedly revealing his sexual orientation, under a pseudonym, on Radio Free Europe/Radio Liberty. In Turkmenistan, homosexual conduct is a criminal act that can result in up to a two-year prison sentence. Today, approximately sixty-eight countries have laws that criminalize homosexual conduct between consenting adults. According to Human Rights Watch, sentencing in these sixty-eight countries “range from fines to life imprisonment and even the death penalty.” Rachel Denber, the deputy Europe and Central Asia director at Human Rights Watch, expressed her extreme concern for Garayev stating that “given Turkmenistan’s appalling human rights record, including enforced disappearances, we have every reason to fear for his safety and well-being.”

Kasymberdy Garayev is a 24-year-old cardiologist, who was employed at an elite clinic in Turkmenistan. On October 21, 2019, Radio Free Europe/Radio Liberty released a narrative, where Garayev allegedly reflected on his life in Turkmenistan stating that “since childhood, I knew that I was gay and it was hard for me to accept.” In 2018, Garayev was allegedly detained by Turkmen authorities upon a scheduled meeting with an online male love interest, which turned out to be a police officer. Here, Garayev allegedly stated that on the way to the police station, officers beat him, used a stun gun, and demanded that he make a statement on camera confirming his sexual orientation.

On October 24, 2019, Turkmen authorities allegedly requested Garayev’s presence for a background check.  From October 24, 2019 to November 6, 2019, Garayev’s whereabouts were unknown. Radio Free Europe/Radio Liberty was also unable to locate Garayev’s family. According to Human Rights Watch, when an individual summoned by Turkmen authorities goes missing, “there is a real risk they could be the victim of an enforced disappearance.”

On October 31, 2019, Radio Free Europe/Radio Liberty released a video recording of Garayev2 speaking, where he disclosed his real name, expressed his fear of going missing, and begged for his family’s forgiveness.

During the time Garayev was feared to be missing, Gurbanguly Berdymukhamedov, the president of Turkmenistan, visited Rome. During Berdymukhamedov’s visit, several Italian LGBTQ+ activist groups urged Rome to speak out on Garayev’s disappearance. On November 6th, Italian Senator Monica Cirinna released a statement demanding the government press Berdymukhamedov on the details of Garayev’s disappearance. Later that day, Garayev returned home.

Since then, Garayev denies any communication with Free Europe/Radio Liberty. Garayev claims that the video farewell was recorded for a different purpose and sent mistakenly to Radio Free Europe/Radio Liberty. Additionally, after the release of Radio Free Europe/Radio Free Liberty’s narrative, Garayev is no longer employed by the prestigious clinic in Turkmenistan where he once worked. Since Garayev’s alleged return home, several LGBTQ+ activist groups have started campaigns seeking to protect Garayev.

For further information, please see:

Human Rights Watch – Turkmenistan: Gay Man Missing After Coming Out Online – 1 Nov. 2019

Radio Free Europe/Radio Free Liberty – ‘If I Disappear, Forgive Me’: Missing Gay Turkmen’s Plea – 31 Oct. 2019

Radio Free Europe/Radio Free Liberty – Gay man from Turkmenistan wants to make a statement to start a discussion – 21 Oct. 2019

Radio Free Europe/Radio Free Liberty – The Turkmen President Is Alive, But What About His Prisoners? –  20 Aug. 2019

Human Rights Watch – Turkmenistan Events of 2018

Human Rights Watch –#OUTLAWED “THE LOVE THAT DARE NOT SPEAK ITS NAME”

Egyptian Authorities Crackdown on Anti-Government Protestors

By: Alexandra Casey

Journal of Global Rights and Organizations, Associate Articles Editor

CAIRO, Egypt — On September 20, 2019, anti-government protests were held in several Egyptian cities, violating the country’s ban on protesting without a permit. Protesters called on President Abdel Fattah al-Sisi to step down following allegations of government corruption. Egyptian authorities have since detained more than 2,000 people in a government crackdown. This response is significant even in a regime that has long targeted dissenters.

Protestors in Cairo, Egypt. Photo Courtesy of NPR.

According to Amnesty International, authorities have arrested everyone from street protestors to prominent government critics and have accused detainees of breaking the country’s broad anti-terrorism laws, spreading fake news, protesting without a license, and joining an illegal organization. Many of the arrests appear to have no connection to the recent protests. After September 20, al-Sisi moved swiftly to rally support. He organized state backed demonstrations praising his current rule and had authorities set up check points to search all cell phones for signs of government criticism.

Prominent journalist and activist, Esraa Abdelfattah, was reportedly arrested by plain-clothes officers and beaten after refusing to unlock her cell phone. Aaron Boehm, a U.S. citizen who had recently arrived in Egypt for a University of Edinburgh study abroad program, was also detained after police officers stopped him in the street and searched his phone. Upon discovering that Boehm sent articles to his friends about the protests, he was put in a vehicle, blindfolded for about 16 hours and interrogated by authorities. While Boehm did not suffer physical abuse, he reported seeing signs of violence against detainees.

The sheer volume of arrests following the September 20 protests combined with al-Sisi’s meager gestures towards addressing citizens’ economic grievances suggest that while Egypt appears stable, unrest may lie just below the surface. Analysts say that al-Sisi’s promise to reinstate subsidies for staples such as rice and pasta will do little to rectify citizens’ disapproval.

Mass arrests have resulted in overcrowding of detention centers, and allegations of torture and ill treatment in detention centers has received attention from the United Nations Human Rights Office. The UN High Commissioner for Human Rights, Michelle Bachelet, has also expressed concerns about significant due process violations.

In a statement to press, OHCHR spokesperson, Ravina Shamdasani, reminded the Egyptian government that “under international law people have a right to protest peacefully, and a right to express their opinions, including on social media. They should never be arrested, detained – let alone charged with serious offences such as terrorism – simply for exercising those rights.”

Shamdasani called for immediate release of those who have been arrested and detained solely for exercising their rights and prompt, effective investigation into the allegations of torture and mistreatment.

For further information, please see:

Reuters – U.N. rights office urges Egypt to free blogger, lawyer, journalist – 18 Oct. 2019

UN News – UN human rights office urges Egypt to immediately release detained protestors – 18 Oct. 2019

NPR – Major Crackdown In Egypt Sweeps Up Activists, Children and At Least 1 U.S. Citizen – 12 Oct. 2019

NY Times – Egypt’s Harsh Crackdown Quashes Protest Movement – 4 Oct. 2019

Reuters – More than 1,100 detained in Egypt after protests: rights monitors – 25 Sept. 2019

What is Happening Along the Border of Turkey and Syria?

By: Madison Kenyon 

Impunity Watch Staff Writer 

DAMASCUS, Syria — On Sunday, October 20, Syrian Kurdish forces began their withdrawal from Ras al-Ayn, a town along the Syrian border. This withdrawal is part of a cease-fire negotiated by the United States’ Vice President, Mike Pence, and Secretary of State, Michael Pompeo with Turkey’s President, Recep Tayyip Erdogan. This cease-fire began Thursday, October 17, and will end on Tuesday, October 22. By Tuesday evening, the Kurdish forces must not only have all soldiers removed from Ras al-Ayn, but also, they must withdraw from a zone about 75 miles wide and 20 miles deep between Ras al-Ayn and the town of Tel Abyad.

The aftermath of a shelling by Turkish forces on a target in Das al-Ayn. Photo courtesy of NPR.

Despite the Kurdish forces’ withdrawal from this zone, Turkey states that this is not enough. Rather, Erdogan wants the Kurdish forces to withdraw more than 260 miles from the Syrian border.  He has vowed that if the forces fail to do so, he will “continue to crush the terrorists’ heads.” Erdogan’s persistency to remove the Kurds from the Syrian border comes from his belief that the presence of any Kurds along the Turkey border is an “existential threat” to Turkey.

This tension between Turkey and the Kurds stems from years of conflict. The Kurds, a largely Muslim ethnic group, are one of the largest groups of people without a state of their own (despite being promised one after World War I). Due to this, for years, a Kurdish militant group has launched attacks throughout Turkey in an attempt to achieve autonomy. Therefore, Turkey sees the Kurdish forces located in northern Syria as linked to this militant group. Thus, Turkey argues that it wants to create a “safe zone” between the Turkey-Syrian border. It also argues that it wants to resettle at least a million refugees living in Turkey who were displaced by the Syrian war into this zone.

Previously, the U.S. has backed the Kurds in their defense against Turkey. However, recently, President Donald Trump signed an executive order withdrawing U.S. troops from northern Syria. The Kurds have now had to turn to Bashar al-Assad, Syria’s leader, and Vladimir Putin, Russia’s President, for help in this conflict.

Since President Trump’s decision to withdraw troops from Syria, over 200,000 people have been displaced. Many of these people blame President Trump for this displacement. One 70-year-old Kurdish man, forced to flee from his home in Ras al-Ayn, stated, “This was a clear betrayal by the Americans. The Turks never would have done what they did had the Americans stayed.”

This criticism is what led the U.S. to negotiate this cease-fire. However, despite the Kurds’ current withdrawal, both sides claim that the other side still repeatedly violates the cease-fire. For example, Turkey’s Defense Ministry stated that the Kurds killed one of its soldiers today during an attack.

It is hard to believe that this cease-fire will make any real difference in this conflict. Rather, the world is awaiting to see what happens at the Turkey-Syrian border Tuesday evening once the cease-fire ends.

For further information, please see: 

Time – Kurds Begin to Evacuate Besieged Syrian Border Town – 20 Oct. 2019

Washington Post – The Latest: Kurdish Fighters Pull Out of Syrian Border Town – 20 Oct. 2019

Bloomberg – Syrian and Kurdi News: Trump Approach to Turkey Syria Incursion – 20 Oct. 2019

Los Angeles Times – ‘How Long Can We Live Like This?’: Kurds in Growing Refugee Camp Plead for Help, End to Losses, Suffering – 20 Oct. 2019

CBS News – Turkey’s Involvement in Syria’s Civil War: The Complicated History of How We Got Here – 15 Oct. 2019

The ICC Prosecutor’s Road to Justice for Afghanistan

By: Madison Kenyon 

Impunity Watch Staff Writer 

KABUL, Afghanistan — On September 17, 2019, the Pre-Trial Chamber II of the International Criminal Court (ICC) granted in part the request of the prosecutor for Leave to Appeal the Chamber’s earlier decision, which rejected the prosecutor’s request for authorization to investigate into the situation in the Islamic Republic of Afghanistan. The Pre-Trial Chamber originally rejected this authorization because it believed that an investigation at the current stage of the situation would not serve the interests of justice. Thus, on June 7, 2019, the prosecutor, Fatou Bensouda, filed for leave to appeal this decision.

International Criminal Court’s prosecutor, Fatou Bensouda. Photo courtesy of the ICC.

This procedural history stems from the preliminary examination, which began in 2006, by the Office of the Prosecutor of the situation in Afghanistan. Specifically, the prosecutor examined alleged crimes against humanity and war crimes that have occurred in Afghanistan since July 1, 2002, with particular focus on alleged crimes that occurred on May 1, 2003. The prosecutor asserts that the results of this examination prove the following: (1) crimes against humanity and war crimes by the Taliban and their affiliated network; (2) war crimes by the Afghan National Security Forces, and in particular, members of the National Directorate for Security and the Afghan National Police; (3) and war crimes by members of the United States’ armed forces and the United States Central Intelligence Agency (CIA). Overall, through this examination, the prosecutor determined that there is a reasonable basis to proceed with an investigation into this situation and thus made the request for authorization to investigate on November 20, 2017.

The prosecutor asserts that, at a minimum, the crimes against humanity that have been committed include: murder; imprisonment or other severe deprivation of physical liberty; and persecution against an identifiable group or collectivity on political and gender grounds. Along with this, the prosecutor states that the war crimes that have been committed include: murder; cruel treatment and torture; outrages upon personal dignity; intentionally directing attacks against civilians; intentionally directing attacks against personnel or objects involved in a humanitarian assistance or peacekeeping mission; internationally directing attacks against protected objects; rape and other forms of sexual violence; using, conscripting or enlisting children under the age of fifteen; and killing or wounding treacherously a combatant adversary. Further, regarding the United States’ involvement in the situation in Afghanistan, the prosecutor states that there is a reasonable basis to believe that members of the U.S. armed forces and members of the CIA committed acts of torture, cruel treatment, outrages upon personal dignity, and rape and sexual violence against conflict-related detainees in Afghanistan and other locations.

Although the Pre-Trial Chamber granted the prosecutor leave to appeal its earlier decision, this does not mean that it will also grant the prosecutor authorization to investigate further into the situation in Afghanistan. Due to the evidence produced by the prosecutor from her preliminary examination, if the Chamber again refuses to grant authorization to investigate further, it may leave many to wonder if the court is actually concerned about the “interests of justice” or if it is actually trying to avoid upsetting an international powerhouse like the United States.

For further information, please see: 

International Criminal Court – Afghanistan: ICC Pre-Trial Chamber II Authorises Prosecutor to Appeal Decision Refusing Investigation – 17 Sept. 2019

International Criminal Court – Situation in Afghanistan: Summary of the Prosecutor’s Request for Authorisation of an Investigation Pursuant to Article 15 – 20 Nov. 2017

International Criminal Court – The Prosecutor of the International Criminal Court, Fatou Bensouda, Requests Judicial Authorisation to Commence an Investigation into the Situation in the Islamic Republic of Afghanistan – 20 Nov. 2017