The Middle East

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

Universal Jurisdiction: Germany’s Conviction of Syrian Officer for Crimes Against Humanity

By: Lauren Della Stua

Impunity Watch Staff Writer 

KOBLENZ, Germany – On February 24, 2021, in the first case of its kind, a German court sentenced a Syrian intelligence officer to four and a half years imprisonment for aiding crimes against humanity.

Defendant Eyad al-Gharib covering his face during sentencing. Photo Courtesy of New York Times.

Gharib was a former low-ranking member of Syria’s intelligence service, serving under President Bashar Assad’s regime. During an uprising in 2011, Gharib was ordered to arrest protestors and bring them to al-Khatib, a prison in Damascus. Gharib has been accused of detaining over 30 prisoners who were tortured.

While Gharib was eligible for a sentence of more than 10 years, the court considered mitigating factors. His attorney argued “necessity as defense”, in that Gharib feared for his life and his family’s lives if he did not follow orders.

The primary defendant Anwar Raslan, Gharib’s ranking supervisor, has also been charged with overseeing the torture but has not yet been sentenced. He is accused of supervising the torture of over 4,000 people, resulting in at least 58 deaths. 

So, how did the German court become involved?

After leaving Syria in 2013, both defendants sought asylum in Germany in 2019. Raslan approached German Police claiming that the Syrian Secret Service was after him. Following an investigation of his claims, the German Police discovered he was accused of torture. A Syrian refugee also came forward after recognizing Raslan on the street. Gharib was originally a witness in the case against Raslan but became a suspect in torture accusations.

Germany is not only home to over 800,000 Syrian refugees, but also has adopted a policy of universal jurisdiction. The policy allows the German courts to prosecute crimes against humanity that occurred anywhere in the world, regardless of whether the plaintiffs or defendants are German citizens.

But there are international implications that have arisen out of the universal jurisdiction policy, including this landmark case decision. Russia and China have blocked attempts by the United Nations Security Council to prosecute Syrian war crimes in the International Criminal Court. Mohammad Al-Abdallah, the director of the Syria Justice and Accountability Center, claimed that the decision will “deter anyone else from defecting or joining the opposition or supplying information to human rights groups.”

Conversely, many believe that the ruling of aiding crimes against humanity will set an international precedent and facilitate more convictions of crimes against humanity.

For further information, please see:

Associated Press News – Conviction in Landmark Case over Syrian Government Torture – 24 Feb. 2021

Deutsche Welle – Defense calls for acquittal of Syrian on trial for torture – 24 Feb. 2021

NPR – Landmark Verdict in Germany Sentences Syrian Official for Crime Against Humanity – 24 Feb. 2021

The New York Times – An Old Legal Doctrine that puts War Criminals in Reach of Justice – 28 Feb. 2021

Turkish Criminal Proceeding Violates the European Convention on Human Rights

By: Genna Amick,

Journal of Global Rights and Organizations, Lead Articles Editor

ISTANBUL, Turkey – The European Court of Human Rights (ECHR) recently released a decision involving a sexual abuse case that began nearly two decades ago. On January 8, 2003, a Turkish individual identified only as N.Ç. filed a complaint against two women who forced N.Ç. to engage in prostitution alongside them.

Chambers within the European Court of Human Rights. Photo Courtesy of Bianet.

After an investigation was conducted, the prosecutor in the case filed a bill of indictment against twenty-eight individuals on various charges, including raping a girl who was under fifteen years old, falsely imprisoning a person to fulfill sexual desires, and inciting someone to prostitution. In 2010, after thirty-five hearings, the Mardin Assize Court acquitted several defendants, struck certain charges, such as “consensual imprisonment” and incitement to prostitution, and held that the sexual acts could not affirmatively be deemed nonconsensual as a psychiatric report found that N.Ç. “had not been totally unwilling.” On this basis, the Mardin Assize Court imposed on defendants the minimum sentence outlined in the Criminal Code.

On March 25, 2011, an application was submitted to the ECHR based on a complaint regarding the manner in which N.Ç.’s case was handled by the Mardin Assize Court. The application sought relief based on Article 3, which prohibits inhumane or degrading treatment, Article 6, which provides for the right to a fair hearing, Article 8, which provides for the right to respect for private and family life, and Article 13, which provides for the right to an effective remedy. A number of events occurred during the criminal proceeding that prompted N.Ç.’s application to the ECHR.

In the early stages of the proceedings, N.Ç. was subjected to ten, extremely intrusive medical examinations. All of the examinations were performed at the request of judicial authorities. The ECHR deemed the number of medical examinations to be excessive. Further, the Court stated that the intrusive nature was an unacceptable interference with N.Ç.’s psychological and physical integrity.

Several other human rights violations arose during the trial. On the same day that the defendants, N.Ç., and her representatives first appeared for a hearing before the Mardin Assize Court, N.Ç. and her representatives were attacked by relatives of some of the defendants as they left the courtroom. The Court ignored their request for protection measures, and later dismissed a request that the trial be transferred for safety reasons. Furthermore, N.Ç. was forced to confront her assailants on numerous occasions at various hearings. She also had to recount in detail the threats that the respondents had made and how she was raped. The Court held that the judicial authorities had not properly balanced the varying interests at play. Their failure resulted in a lack of protection for N.Ç. from the defendants in an extremely serious sexual abuse case.

Numerous other oversights on the part of the Turkish court resulted in the Court holding that the criminal proceedings had not been conducted in a manner that protected the values espoused by Articles 3 and 8 of the Convention. The Court ordered Turkey to pay N.Ç. 25,000 euros for non-pecuniary damages, as well as an additional 3,000 euros for costs and expenses.

For further information, please see:

European Court of Human Rights – Criminal proceedings against persons charged in connection with prostitution of a fourteen-year-old child: violations of the Convention – 09 Feb. 2021

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

Two Female Members of Kurdish-led Administration in Syria Found Beheaded.

By: Christopher Martz

Journal of Global Rights and Organizations, Associate Articles Editor

ERBIL, Kurdistan Region – On January 26th, 2021, Hind Latif Al Khadir and Sa’da Faysal Al Hermas, political leaders of the Kurdish-led autonomous region in northeastern Syria, have been found beheaded after being kidnapped, in an attack blamed on the Islamic State group. The two women, who were found dead in Al Dashisha in the countryside of northeastern Syria’s Hasakah province, were known for their work for local institutions within the Autonomous Administration of North and East Syria (AANES).

Hind Latif Al Khadir and Sa’da Faysal Al Hermas, both officials with the Til Shayir municipality in Hasakah, northeast Syria, were assassinated on January 22, 2021. Photo Courtesy of Rudaw.

A continuous pattern of violence against Kurds, and specifically women in northeastern Syria, culminated in their kidnapping from their homes by unknown men. The Syrian Observatory for Human Rights (SOHR) reported that they were both found dead hours after being kidnapped. Hind Latif Al Khadir was head of the economy committee of the town of Til Shayir, while Sa’da Faysal Al Hermas was co-president of the town’s people’s council.

Local councils in the region and news outlets condemned the crime and blamed their kidnapping and death on ISIS sleeper cells. Crimes of this variety have been common in the region, with the goal of destabilizing security and stability, while spreading terror among the people. Opponents of the autonomous administration, notably ISIS and Turkish backed militias, have targeted politicians involved with the organization in the past. A notable victim of a similar crime was Hevrin Khalaf, a politician with the Future Syria Party. He was assassinated by the Turkish-backed armed group Ahrar Al Sharqiya in October 2019.

According to SOHR, at least 234 people have been killed by ISIS sleeper cells in northeastern Syria since June 2018.

The news of their deaths brings to focus the ongoing ISIS emergence in Syria. Since the organization’s takeover of large swaths of Syria and Iraq in 2014, several US-backed military campaigns whittled away at the terrorist organization. The Kurdish-led Syrian Democratic Forces (SDF), an armed group linked to AANES, expelled the militants from their last patch of land in the Dayr Az Zawr village of Baghouz, located south of Sousa in 2019. Yet violence continues to spread in the name of the organization, often targeting women and those most vulnerable in war-torn Syria.

Since the overthrow of the group, the SDF and AANES have managed tens of thousands of prisoners and displaced people in the region, including ISIS relatives and fighters from around 50 countries. Adding to the crisis, western nations have been largely reluctant to repatriate their ISIS-linked nationals held in northeast Syria, though some have brought home women and children on a case-by-case basis.

While crime has largely targeted political leaders in the region, murder and violence have plagued many of the refugee camps offering protection from similar violence. Just last week, the UN reported that 12 murders had taken place in Al Hol camp in northeast Syria in just over two weeks, sounding the alarm over an increasingly untenable security situation.

While outlets and governments have reported the deterioration of the ISIS presence in the region, violence continues to plague those most vulnerable to the present instability. Women and refugees are still at high risk, requiring more protection and action from the region and the international community at large.

For further information, please see:

Kurdistan24 – Two local female politicians abducted and killed in northeast Syria – 24 Jan. 2021.

MEE And Agencies – Two female members of Kurdish-led administration in Syria found beheaded – 26 Jan. 2021.

Rudaw – Two Rojava municipal council women assassinated: reports – 23 Jan. 2021.

Syrian Observatory for Human Rights –  After threats in 2018, ISIS executes two female officials in the Autonomous Administration in southern Al-Hasakah – 23 Jan. 2021.