THE HAGUE, Netherlands – On December 29, 2023, South Africa initiated proceedings in the International Court of Justice against the state of Israel for its actions in the Gaza Strip, accusing Israel of violating the 1948 Genocide Convention due to its treatment of Palestinians throughout the conflict with Hamas. Israel has confirmed it will appear at the proceedings to fight the allegations.
Judges at the International Court of Justice at The Hague | Photo Courtesy of Al Jazeera, Remko De Waalepa/EFE/EPA
South Africa pointed to the ongoing humanitarian crisis and magnitude of death and destruction in Gaza, stating such action meets the threshold of the 1948 Convention under international law. South Africa has also requested the Court order an injunction on any further Israeli attacks in the region.
Israel’s actions in the Gaza Strip have been a part of a three-month long campaign against Hamas, the perpetrators of the October 7, 2023, terrorist attack in Israel which led to the deaths of approximately 1,200 Israelis. Israel responded by launching a series of airstrikes into Gaza, targeting suspected Hamas strongholds, prior to launching a full-scale ground invasion of the Gaza Strip on October 27, 2023. Since the start of the invasion, the Palestinian Ministry of Health in Gaza has reported the death toll to exceed 22,000.
South Africa claims Israel’s actions violate obligations set under the 1948 Genocide Convention. The Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
Israel has pushed diplomatic cables requesting countries to denounce the claims and pointed to its effort to increase humanitarian support in the region to refute the idea of genocide. The United States has already stated its support for Israel, calling South Africa’s submission “meritless, counterproductive, and completely without any basis in fact whatsoever.” However, pro-Palestine countries such as Turkey and Jordan have both expressed their support for South Africa’s challenge.
Israel has boycotted the ICJ and its rulings for decades, and its participation in this instance as a signee to the 1948 Genocide Convention speaks volumes of the importance of this issue to Israel. The case is set to be heard by the ICJ on January 11, 2024.
Journal of Global Rights and Organizations, Associate Articles Editor
THE HAGUE, The Netherlands – On December 8, 2023, the ICC Office of the Prosecutor implemented the “Policy on Children” to address the worldwide suffering that children face regarding their historic underrepresentation and lack of appropriate engagement with the criminal justice process.
Cover Page of the ICC Office of the Prosecutor Policy on Children | Photo courtesy of ICC Office of the Prosecutor.
The ICC’s Rome Statue grants the ICC jurisdiction over international crimes involving genocide, crimes against humanity, war crimes, and crimes of aggression. Article 54 of the Rome Statute mandates that the Office of the Prosecutor devote special consideration to investigations and prosecutions against children. Children have the right to partake in the criminal justice process, just as adults are. However, the ICC has acknowledged the routine failure of tribunals to appropriately include children in international criminal justice processes, which in turn violates their human rights.
Addressing children’s participation in the international criminal justice processes is crucial. Nearly one third of the global population is under eighteen years of age, yet children’s experiences and their key roles within the accountability processes are largely overlooked or otherwise ignored based on misconceptions, stereotypes, and failures to devote appropriate resources to support proper methodologies that account for the specific needs of each child. For example, tribunals traditionally have an adult-centric view which largely excludes children and often stereotype them as a homogenous group, regardless of their unique needs and capacities. Moreover, crimes impacting children are routinely under-reported, under-investigated and under-prosecuted.
The ICC has recognized the necessity of improving the understandings of and adaptation to children’s experiences and facilitating their engagement in the international criminal justice processes. The Court has committed to increasing children’s access to justice by implementing a children’s rights approach. It will ensure that children’s voices will be affirmatively heard in each case and situation that they are involved in under the Rome Statute so that their unique vulnerabilities and the manners in which they are targeted and ultimately impacted based on their status in society regarding their physical, mental, psychological development, and ability to engage with criminal justice process, can be better understood.
The Prosecutor’s new has specific objectives to:
Remedy the historic lack of representation and engagement of children in the international criminal justice process.
Bring attention to the viewpoint that crimes under the Rome Statute can be committed against and impact children.
Ensure that, in all dealings with children, the Office of the Prosecutor takes a child rights, child-sensitive, and child-competent approach that is guided by the child’s best interests.
Actively adapt and reflect topics including intersectionality, children’s developmental stages, their capacities and abilities.
Re-emphasize the Office of the Prosecutor’s commitment to building an international community that facilitates effective investigation and prosecution of crimes against children.
Promote the exchange of knowledge regarding best practices and accountability efforts.
The Policy focuses on recruitment, training, external collaboration, implementation, monitoring, and evaluation, with the goal of promoting a more effective and equitable system for prosecuting crimes against and impacting children. The Policy also reflects the ICC’s awareness of their place within a global ecosystem of accountability, and specifically, the Office of the Prosecutor’s commitment to broadening and then reflecting its understanding as to the unique impacts of Rome Statute crimes involving children, and to improving the processes for effectively including children in the international criminal justice processes.
STRASBOURG, France – On December 13, 2023, the European Court of Human Rights (ECHR) held a Grand Chamber Hearing in the case of Ukraine v. Russia (re Crimea). However, the Russian Government failed to notify the court of the names of their representatives prior to the hearing, nor did any representatives appear on its behalf. The ECHR elected to continue with the hearing, pursuant to Rules 64 and 65 of the Rules of the Court. The Ukrainian Government is represented by Marharyta Sokorenko, Ben Emmerson, Iyrna Mudra, Andrii Luksha, and Oleksii Yakubenko.
The ECHR Grand Chamber Hearing of December 13, 2023, in the case of Ukraine v. Russia (re Crimea) | Photo Courtesy of the ECHR.
The Complaints
The Hearing relates to three inter-state applications filed by Ukraine in the ECHR over the past decade. Two applications submitted to the Court by Ukraine in 2014 and 2015 were joined in 2018. The ECHR issued a decision establishing its jurisdiction over the application on December 16, 2020.
The Ukrainian Government argues in its application that Russia has exercised “effective control” over Crimea, the City of Sevastopol, and integral parts of Ukraine since February 27, 2014. By doing so, the Ukrainian Government argues that Russia has violated several Articles of the Convention including Article 2 and Article 3, the Right to Life and Prohibition of Inhuman Treatment and Torture, respectively.
Specifically, Ukraine argues that between February 27, 2014 and August 16, 2015, Russia exercised an administrative practice of “enforced disappearances” of “perceived opponents to Russia,” especially Ukrainian soldiers, ethnic Ukrainians, and Tartars, and that Russia failed to engage in any adequate investigation of those disappearances.
The Hearing
The Hearing began with a reading of a summary of the applications being considered and the complaints surrounding them. The President of the ECHR, Síofra O’Leary, noted that Russia ceased to be a party to the ECHR on September 16, 2022. However, because Russia was a member of the Counsel of Europe at the time of the complaints, it cannot escape its obligations under the Convention. President O’Leary noted that though the ECHR had maintained communication with Russia regarding the allegations made against it by Ukraine, Russia has not communicated with the Court since leaving the ECHR.
When addressing the Court, Mr. Emmerson remarked that it was “unprecedented” that a Hearing continued though only one party was present for arguments. Mr. Emmerson argued that Russia’s “enforced disappearance” practices during its occupation of Crimea fell under Article 2 because the failure of the Russian government to acknowledge that a person had been imprisoned or killed increased the likelihood that they would be subject to inhumane treatment, regardless of if the person is later released or their killing acknowledged.
A ruling from the ECHR can be expected “at a later stage” but a recording of the Grand Chamber Hearing is available on the ECHR’s website.
UNITED KINGDOM – The British Government is facing multiple lawsuits both domestically and internationally that challenge the legality of the recently passed Northern Ireland Troubles Legacy Act (Act).
A protest outside of Westminster Square, Westminster against the Northern Ireland Troubles (Legacy and Reconciliation) Bill | Photo Courtesy of Belfast Times
The Act, which was passed by British Parliament in September 2023, is an attempt to bring finality and closure to the Troubles in Northern Ireland. The Troubles was a three-decade long period of sectarian violence between Irish republican paramilitaries, the British army, and unionist paramilitaries which resulted in more than 3,500 deaths and over 47,000 injuries. The Troubles effectively ended with the signing of the Good Friday Agreement in 1998, however over 1,000 deaths from that era remain unsolved.
The Northern Ireland Troubles Legacy Act is modeled after the South African Truth and Reconciliation Commission established by Nelson Mandela after the fall of apartheid. The Act will be implemented by the Independent Commission for Reconciliation and Information Recovery (ICRIR), which will seek to find information on the circumstances of the deaths or injuries of victims of the Troubles and share the information with the families of the victims. Under the Act, perpetrators who provide truthful accounts of their actions to the ICRIR can be granted immunity from prosecution. Additionally, the Act will prevent any new civil cases and inquiries about the Troubles from starting. The Act received fierce opposition from all political parties in Northern Ireland, as well as many victims’ groups and organizations, but was supported by U.K. veteran’s groups and Britain’s governing Conservative party.
Shortly after the Act was passed in September, sixteen separate legal challenges were filed with the U.K. High Court in Belfast, Northern Ireland. Legal representatives of the parties, mostly made up of the families of victims from the Troubles, argue that the Act is unlawful because it is incompatible with international human rights standards, including the European Convention on Human Rights. The parties state that the Act interferes with the justice system by denying victims access to the courts which had been a viable avenue open to victims and their families before the Act’s passage. For example, in 2021 an inquest through the previous system found that ten individuals killed in Belfast in 1971 were unarmed at the time of their deaths and that the use of force by the British army was “clearly disproportionate.” Petitioners also indicated their intention to file applications with the European Court of Human Rights (ECHR).
In addition to domestic legal challenges, the Act is now facing challenges on the international stage. The Republic of Ireland has announced that it will be bringing a case against the United Kingdom at the ECHR. The Irish government’s main concern is the grants of immunity given under the Act which will create a barrier to any other action by victims or their families. Grants of immunity have previously been found by the ECHR to be incompatible with a country’s obligation to maintain means to investigate unnatural deaths and torture, a provision of the Good Friday Agreement signed by the United Kingdom. According to Irish Prime Minister Leo Varadkar, both the United Nations and the Council of Europe support Ireland’s position in bringing this challenge. Conversely, the U.K. government states that Act complies with the ECHR and the Good Friday Agreement because it balances grants of immunity with the investigative powers of the ICRIR.
Further details on the filings and decisions of these cases are forthcoming as the cases progress through their respective domestic and international channels.
THE HAGUE, The Netherlands – The International Criminal Court (ICC) has taken bold steps towards addressing alleged war crimes in Ukraine. It first dispatched a 42-member team for a comprehensive investigation in 2022. This move was particularly noteworthy considering Ukraine’s status as a non-member state of the ICC.
Prosecutor General of Ukraine Andriy Kostin and ICC Registrar Peter Lewis during the signing of the agreement on 23 March 2023 in The Hague, The Netherlands | Photo Courtesy ICC-CPI
The ICC also filed charges against Russian President Vladimir Putin and Russian bureaucrat, Maria Lvova-Belova, for the unlawful deportation and transfer of Ukrainian children from occupied areas of Ukraine to the Russian Federation, in violation of Article 8(2)(a)(vii) and Article 8(2)(b)(viii) of the Rome Statute. Most recently, ICC established of a country office in Ukraine in March of last year, marking a pivotal moment in the Court’s engagement with non-member states.
Despite Ukraine’s status as a non-party to the Rome Statute, under Article 12(3) of the Statute, it has twice exercised its prerogatives to accept the jurisdiction of the Court over alleged crimes under the Rome Statute that have allegedly occurred on its territory. In its initial declaration, the Ukrainian government acknowledged the International Criminal Court’s jurisdiction over crimes allegedly committed on its territory between November 21, 2013, and February 22, 2014. The second declaration expanded this period indefinitely to include ongoing accusations of crimes committed across the entirety of Ukraine starting on February 20, 2014. The ICC’s decision underscores its commitment to fostering cooperation and addressing alleged human rights abuses even in the absence of formal membership.
The establishment of a country office signifies a strategic effort by the ICC to enhance its presence on the ground, facilitating direct collaboration with local authorities, civil society, and other stakeholders. This development reflects the ICC’s dedication to transcending geopolitical boundaries and ensuring the pursuit of justice is not confined by legal technicalities.
The ICC’s mandate is primarily rooted in the Rome Statute, an international treaty that governs the Court’s jurisdiction over the most serious crimes of international concern. Early February 2023, the ICC Prosecutor submitted applications to Pre-Trial Chamber II of the International Criminal Court for warrants of arrest in violation of Article 8(2)(a)(vii) and Article 8(2)(b)(viii) of the Rome Statute. To be classed as crimes against humanity, attacks must be part of what the ICC’s founding treaty, the Rome Statute, calls “a widespread or systematic attack directed against any civilian population”. While Ukraine is not a party to the Rome Statute, the ICC can exercise jurisdiction under specific circumstances, such as when the alleged crimes were committed on the territory of a state that is a party to the Statute or when the United Nations Security Council refers a situation to the ICC.
The decision to investigate a non-member state raises important legal and diplomatic questions. It underscores the ICC’s willingness to address alleged crimes even in the absence of formal membership, emphasizing the Court’s role as a global arbiter of justice. However, it also brings to the forefront the delicate balance between the ICC’s pursuit of justice and the principles of state sovereignty.
The ICC’s actions in Ukraine may set a precedent for future cases involving non-member states, encouraging a collaborative approach to address impunity and hold perpetrators accountable. On the contrary, the ICC must navigate potential diplomatic challenges and ensure that its investigations are conducted impartially to maintain credibility and legitimacy. The Court’s success hinges on its ability to gather evidence, cooperation with local authorities, cooperation by states around the world, and protection of witnesses and victims. It provides an opportunity for Ukraine to actively participate in the pursuit of justice for alleged crimes committed within its borders, fostering a sense of shared responsibility in upholding international human rights norms. This investigation showcases the ICC’s commitment to its mandate, even in the face of geopolitical complexities. The outcome may not only shape the trajectory of justice in Ukraine but also influence the ICC’s approach to non-member states in the years to come.
