ICC Office of the Prosecutor Aims to Strengthen the Investigation and Prosecution of Gender-Based Crimes Through New Policy

By: Remy Kane

Impunity Watch News Staff Writer

THE HAGUE, Netherlands – On December 4, 2023 the International Criminal Court (ICC) Office of the Prosecutor (OTP) published a new policy focused on gender-based crimes (GBC), including those that are sexual and reproductive in nature, along with crimes that may not traditionally be considered GBC. These crimes often manifest as war crimes, crimes against humanity, and acts of genocide. The Policy takes a “survivor-centered, trauma-informed approach” to the investigation and prosecution of GBC, aiming to keep victims, survivors, and witnesses at the forefront.

 
Cover Page of the Office of the Prosecutor’s recent policy on addressing and combating gender based violence | Photo Courtesy of the ICC, Office of the Prosecutor
  

Article 54 of the Rome Statute imposes a duty upon the ICC Prosecutor when investigating and prosecuting crimes to “take into account the nature of the crime, in particular where it involves sexual violence, gender violence, or violence against children.” In the near-decade since the 2014 OTP Policy Paper on Sexual and Gender-Based Crimes, it has become evident that fulfillment of this mandate requires greater attention.

Unfortunately, the vast majority of gender-based crimes go without redress. The Policy’s executive summary refers to a “myriad factors including discrimination, stigma, underreporting, and survivors’ reservations about law enforcement and judicial systems” as the reason. In addition, the Policy acknowledges that GBC is often taken less seriously and prosecuted with less zeal than other crimes.

To combat this lack of accountability, the new Policy presents a revamped version of its 2014 counterpart offering greater guidance on how to effectively handle GBC. The Policy sets forth the following objectives:

  1. “to affirm the Prosecutor’s commitment to the rigorous investigation and prosecution of GBC, to help remedy the historical neglect of these crimes;
  2. to clarify key concepts and articulate fundamental principles underlying the Office’s work on GBC, mainstreaming a gender perspective and gender competence throughout the Office;
  3. to integrate a survivor-centred and trauma-informed approach in the Office’s work with victims and witnesses exposed to GBC and other atrocity crimes;
  4. to provide clarity and broad direction as to the interpretation and application of the Statute, the Elements of Crimes and the Rules, at all stages of the Office’s work, so as to ensure the effective investigation and prosecution of GBC throughout;
  5. to contribute to the development of international jurisprudence and best practice regarding accountability for GBC at the ICC and beyond.”

Kim Thuy Seelinger, former Special Adviser on Sexual Violence in Conflict, and the Office of the Prosecutor’s first Senior Coordinator for Gender-based Crimes and Crimes Against or Affecting Children, led the review and drafting process for the Policy. Seelinger is a research associate professor at Washington University in St. Louis’s Brown School as well as a visiting professor at the University’s School of Law. In addition, she is the director of the Center for Human Rights, Gender and Migration at the University’s institute for Public Health. Seelinger noted that the Policy’s survivor-centered, trauma-informed approach is “critical for the well-being of those we engage and also the quality of the evidence we put forward.”

For further information, please see:

ICC – Statement by Prosecutor Karim A.A. Khan KC on New Policy – 5 Dec. 2023

ICC – Policy on Gender-Based Crimes –  Dec. 2023

ICC – Policy Paper on Sexual and Gender-Based Crimes – June, 2014

Seelinger Helps Draft New ICC Policy on Gender Crimes – Dec 11, 2023

German Court Finds Gambian Man Guilty of Crimes Against Humanity Under Universal Jurisdiction

By: Rafael Sbeghen Freitas 

Impunity Watch Staff Writer 

 CELLE, Germany – A former participant in the Gambian death squad, an infamous paramilitary group called “The Junglers,” has been handed a life sentence following the Celle Higher Regional Court’s determination of his guilt for crimes against humanity. 

 
The Gambian defendant, identified as Bai Lowe, in line with German privacy rules, holds a folder in front of his face at the Celle Higher Regional Court in Celle, Germany | Photo courtesy of Associated Press.
  

The paramilitary organization was established by the former president Yahya Jammeh in the mid-1990s. Jammeh’s 22-year regime was characterized by systematic oppression and pervasive human rights abuses, encompassing torture, extrajudicial executions, enforced disappearances, and sexual violence targeting both real and perceived adversaries. 

Court proceedings in Germany revolved around Bai Lowe, a 48-year-old man who was found to be the driver for the “Patrol Team,” a unit of the assassination squad in several of its attacks. Lowe was found guilty of participating in two homicides and one attempted homicide. The latter incident occurred in December 2003, when the court determined that he drove the unit to the location of the attempted assassination of a lawyer who was defending an individual who had fallen out of favor with Jammeh. The victim suffered the loss of a kidney but ultimately survived. 

In 2004, the unit, utilizing two vehicles camouflaged as taxis, was responsible for the killing of a prominent journalist, with one of the vehicles being driven by the accused, as per the court’s findings. Subsequently, before the conclusion of 2006, the unit compelled a former soldier, purportedly in opposition to Jammeh, into a vehicle operated by the defendant. They then transported him to an isolated location, where he was shot and buried, according to a court statement. 

Bai Lowe’s trial in Germany was made possible by the nation’s legal recognition of universal jurisdiction for severe crimes under international law. This allows the investigation and prosecution of such crimes regardless of where they occurred and the nationalities of the suspects or victims. Given Lowe’s residence in Germany, German authorities were obligated to pursue the case. 

The significance of universal jurisdiction cases is growing in international efforts to hold individuals accountable for atrocities, deliver justice to victims lacking alternative recourse, deter future crimes, and prevent countries from becoming safe havens for human rights violators. Numerous European countries are actively engaged in ongoing investigations and prosecutions related to egregious abuses committed abroad, spanning regions such as the Democratic Republic of Congo, Iraq, Liberia, Syria, and Ukraine. 

It is expected that authorities in Gambia request Bai Lowe’s extradition from Germany to stand trial. However, the principle of double jeopardy (ne bis in idem) established in international law and the Gambian constitution could preclude Gambia’s judiciary system from bringing charges against him for any of the acts outlined in the current trial indictment. 

For further information, please see: 

ABC News – Gambian man convicted in Germany for role in killings under Gambia’s former ruler – November, 2023 

ECCHR – Verdict in Gambia Atrocity Case – 28 Nov. 2023

Human Rights Watch – Germany: Verdict in Gambia Atrocity Case – November, 2023 

Oberlandesgericht Celle – State security proceedings on the suspicion of crimes against humanity in Gambia – March, 2023 

The Globe and Mail – German court finds Gambian man guilty of crimes against humanity for death-squad role – November, 2023 

 

U.K. Government Responds to British Supreme Court Decision on Migrant Policy with New Treaty

By: Christina Bradic

Impunity Watch News Staff Writer

 UNITED KINGDOM – On December 5, 2023, the government of the United Kingdom responded to a November Supreme Court decision, declaring the UK and Rwanda Migration and Economic Development Partnership unlawful. They signed a new treaty that will relocate migrants arriving in the United Kingdom to Rwanda for asylum processing and thereby barring their return to the United Kingdom.

 
Migrants claiming to be from Darfur, Sudan cross the English Channel in an inflatable boat near Dover, Britain, 8/4/21 | Photo courtesy of Reuters.
  

According to The Migration Observatory at the University of Oxford, approximately 46,000 people crossed the English Channel in 2022 in small boats, with over 90 percent of those people making claims for asylum. In response to the large number of migrants crossing the English Channel, the British Government proposed a plan in April 2022 that would deport migrants arriving in the United Kingdom to the country of Rwanda for asylum processing and relocation. There, Rwandan officials would oversee Asylum conditions and decisions. Under the UK and Rwanda Migration and Economic Development Partnership, the United Kingdom would provide Rwanda up to £120 million ($152 million USD) over five years.

The first flight to deport migrants to Rwanda was scheduled for June 14, 2022. However, on the morning that the flight was scheduled to depart for Kigali, the European Court for Human Rights issued an injunction against the United Kingdom, prohibiting the flight until there was further investigation into the legality of the policy.

On December 19, 2022, the High Court of England and Wales ruled that the policy was legal and did not breach Britain’s obligations under the U.N. Refugee Convention or other international agreements. On June 29, 2023, a Court of Appeals of England and Wales overruled the lower court decision, declaring the deportation plan as unlawful and violating the European Convention on Human Rights (ECHR). This decision was unanimously upheld by the U.K. Supreme Court on Nov. 15, 2023.

At the heart of the decision is not whether relocation to a third country is lawful; the Supreme court has affirmed that sending migrants to a safe third country is not illegal in itself. However, the European Court for Human Rights has declared that when asylum applicants can arguably claim that there is no guarantee that their asylum applications would be seriously examined by the authorities in the third country, and that there could be a possible violation of Article 3 of the U.N. Refugee Convention, that relocation is unlawful. This is the stance the U.K. Supreme court has taken regarding Rwanda.

The U.K. Supreme Court ruled that current Rwandan policy risks violations of Section 3 of the United Kingdom’s Immigration Act of 1971. The Act states that a country is only considered a “safe third country” if there is not a policy of refoulment. The act of returning asylum seekers to a country where their life or freedom would be threatened on the basis of race, religion, nationality, membership of a particular social group or political opinion, there is risk of inhumane torture or treatment. The court also stated the policy was at risk of violating Section 6 of the Human Rights Act 1998 requiring asylum claims to be properly determined under human rights law.

The court cited political repression in Rwanda, political killings, Rwanda’s total rejection of all asylum applications from Afghanistan, Syria, and Yemen between 2020 and 2022.

In response to the Supreme Court ruling, on December 5, the British Home Secretary, James Cleverly, and the Rwandan Foreign Minister, Vincent Biruta, signed a migration treaty that is binding under international law. The treaty addresses concerns raised by the U.K. Supreme Court, including prohibiting refoulment, setting up an independent monitoring committee and an Appeal Body, comprised of judges with humanitarian protection expertise, representing multiple nationalities. Cleverly stated, “Rwanda cares deeply about the rights of refugees.”

Critics say that the treaty is the British government’s plan to circumvent a human rights ruling of the Supreme Court, making it discreditable and susceptible to being overturned.

For further information, please see:

Aljazeera – UK home secretary signs new asylum treaty in Rwanda – 5 Dec. 2023

Associated Press – UK top court says a plan to send migrants to Rwanda is illegal. The government still wants to do it – 15 Nov. 2023

Barron’s –The UK’s Rwanda Migration Policy: A Timeline – 5 Dec. 2023

BBC News – Supreme Court rules Rwanda asylum policy unlawful – 15 Nov. 2023

BBC News – What is the UK’s plan to send asylum seekers to Rwanda? – 5 Dec. 2023

CNN – UK’s Rwanda deportation plan ‘unlawful,’ court of appeal rules – 29 Jun. 2023

European Court of Human Rights – Guide on case-law of the European Convention of Human Rights-Immigration – 31 Aug. 2022

GOV.UK – Treaty signed to strengthen UK-Rwanda Migration Partnership – 5 Dec. 2023

Royal Courts of Justice – AA-v-SSHD judgment – 29 Jun. 2023

The Guardian – What is the ECHR and how did it intervene in UK’s Rwanda flight plans? – 15 Jun. 2022

The Migration Observatory – People crossing the English Channel in small boats – 21 Jul. 2023

United Kingdom Supreme Court – R (on the application of AAA (Syria) and others) v Secretary of State for the Home Department – 15 Nov. 2023

Family Requests IACHR Recognition of Columbian Human Rights Violations

By: Paola Andrea Suárez Luján

Impunity Watch Staff Writer

BOGOTÁ, Columbia – It has been 39 years since the imprisonment and murder of Luis Fernando Lalinde, a young college student from Colombia and member of the Communist Party. He was detained without due process on October 3rd, 1984, tortured, and executed by members of the Colombian military. In November 2023, his family petitioned the Inter-American Commission on Human Rights to recognize the human rights violations committed by the Columbian state.

 
Photo of Luis Fernando Lalinde Lalinde | Photo courtesy of Comisión Intereclesial de Justicia y Paz.
  

The truth of the circumstances of his death was the life search of his mother Fabiola Lalinde, who spearheaded Operation Siriri, a search campaign for the truth of his disappearance that lasted more than 30 years. Fabiola Lalinde’s efforts come to life in the hundreds of handwritten notebooks, family photos, and more than 1200 documents recording all information regarding the disappearance of his son. Almost four decades after his death, Luis Fernando Lalinde’s family continues their search for the truth. 

In 1988, the Inter-American Commission on Human Rights adopted Resolution 24/87, declaring the Colombian State responsible for the detention, torture, and extra-judicial murder of Luis Fernando Lalinde. They urged Colombian authorities to investigate and find the people responsible for his murder. However, it was not until 1992 that Lalinde’s family was presented with his remains, and it was in 1996, exactly 4,428 days after his disappearance, when American scientists confirmed with 99.999% certainty that those remains belonged to Luis Fernando Lalinde. The identity of the perpetrators of his detention and extra-judicial execution, however, remains unknown to the Lalinde family.

For the lack of action from the Colombian government, in 1999 the Colombian Commission of Jurists requested the Inter-American Commission on Human Rights to declare the State responsible for the harm to the psychological and moral integrity of Lalinde’s family members. They alleged that the State deliberately obstructed Lalinde’s family’s access to adequate remedies for the investigation and punishment of those responsible for his detention and execution, depriving them of their right to obtain justice.

Lalinde’s case investigation was performed mainly under military criminal jurisdiction. The Commission stated in its Merits Report No. 292/21 that, by leaving the investigation to military jurisdiction, the Colombian State violated judicial guarantees and protections. There was no independent and impartial authority in the case that could allow for a fair investigation and adequate sanction of the people responsible for the acts committed against Luis Fernando Lalinde.

Following that petition, the Colombian Commission of Jurists, representing Luis Fernando Lalinde’s family members and following his mother’s lifelong mission, has requested the Inter-American Court on Human Rights on November 6th of this year, on behalf of the Commission, to declare the Colombian State responsible for the violation of the right to personal integrity, judicial guarantees and judicial protection in detriment to Fabiola Lalinde, Jorge Iván Lalinde, Mauricio Lalinde, and Adriana Lalinde.

Lalinde’s family is requesting that the Court order the Colombian State to fully redress the human rights violations committed against them and that measures be adopted so they can receive comprehensive medical care. Following a 40-year-long plea, they also ask that the Colombian government conduct and conclude an impartial and effective judicial investigation to establish the circumstances of the disappearance and death of Luis Fernando Lalinde, as well as identify and sanction all individuals involved in the events.

The ongoing fight for truth by the Lalinde family is accompanied by the families of more than 60,000 disappeared individuals in Colombia in the last 45 years. The request to the Court calls for an analysis of the impact of the prolonged impunity of serious human rights violations on the personal integrity of the victim’s families.

For further information, please see:

IACHR – Petition Before the Inter-American Court Of Human Rights Case 12,362 – 6 Nov. 2023

CCJ – Luis Fernando Lalinde was Disappeared 37 Years Ago by Military Forces – 3 Oct. 2021

El Colombiano – The Long Flight of the Ciriri, the History of Fabiola Lalinde – 13 May 2022

Hacemos Memoria – “The Archive of a Ciriri Has to be Uncomfortable for a Country as Unjust and Violent as Ours”: Fabiola Lalinde – 17 Apr. 2018

Cero Setenta – Operation Siriri or How to Find a Missing Child – 30 Apr. 2018

Centro Nacional de Memoria Histórica – Until We Find Them. The Drama of Forced Disappearance in Colombia – 2016

UNAL – Data base: The Fabiola Lalinde and Family Fund – 20 Apr. 2022

Dissenting Opinion Issued in Three Tanzanian Capital Punishment Cases

By: Rachel Wallisky

Impunity Watch News Staff Writer

DODOMA, Tanzania — Of the nine new judgments the African Court on Human and Peoples’ Rights (AfCHPR) issued during its opening ceremony on November 7, 2023, three are appeals of capital sentences imposed in the United Republic of Tanzania. Arguments for these cases were all heard by the AfCHPR during its September 2023 term.

 
Gavel in the African Court on Human and Peoples’ Rights | Photo Courtesy of the AfCHPR.
  

Background

In Tanzania, a person convicted of murder or treason must be sentenced to death with few exceptions. While murder convictions are relatively rare, courts in Tanzania have interpreted the law to say that a capital sentence is mandatory for these cases. Tanzania has taken an abolitionist stance on the death penalty, having not carried out an execution since 1994. However, the law mandating capital punishment is still codified in statute and many are sentenced to death. Most murder sentences are commuted to life imprisonment. The AfCHPR has held in the past that mandatory death penalty statutes violates the right to life as guaranteed under Article 4 of the African Charter on Human and Peoples’ Rights (the Charter). Additionally, Article 6 of the International Covenant on Civil and Political Rights (ICCPR) condemns mandatory capital punishment.

The Cases

The first case, John Lazaro v. United Republic of Tanzania, is an appeal from the murder conviction of Mr. Lazaro, a Tanzanian national. Mr. Lazaro argued that several of his rights were violated during his trial by the domestic courts, including his right to life under Article 4 and right to dignity under Article 5 of the Charter. The Court agreed that Mr. Lazaro’s right to life under Article 4 had been violated by the mandatory imposition of the death penalty, and his right to dignity under Article 5 had been violated due to the method of execution prescribed by the domestic courts, namely hanging.

The second case, Makungu Misalaba v. United Republic of Tanania, is an appeal from the murder conviction of Mr. Misalaba, a Tanzanian national. Mr. Misalaba was granted a presidential pardon, and his capital sentences was commuted to life imprisonment. Mr. Misalaba stated several of his rights were violated during his trial by the domestic courts, despite his pardon, including his right to life and right to dignity under Article 4 and Article 5 of the Charter, respectively. The Court agreed that Mr. Misalaba’s right to life was violated but disagreed that his Article 5 rights were violated, awarding him with TZS 500,000 in moral damages.

The third case, Chrizant John v. United Republic of Tanania, is an appeal from the murder conviction of Mr. John, a Tanzanian national. Mr. John also argued his Article 4 and 5 rRight to Life and Right to Dignity, among other rights, were violated during his trial by domestic courts. Uniquely, Mr. John called upon the Court to order Tanzania to remove the mandatory death sentence provision for the offense of murder. The Court agreed that Mr. John’s Article 4 and 5 rights were violated and ordered Tanzania to pay TZS 500,000 in moral damages.

The Dissenting Opinion

The dissenting opinion was written by Judge Blaise Tchikaya regarding all three cases. Judge Tchikaya criticizes the court for “retreat[ing]” from the AfCHPR’s power to interpret the law. He argues that the court should have taken the initiative to state that the death penalty is contrary to Articles 4 and 5 of the Charter and States should take measures to remove it from their national legislation.

Additionally, Judge Tchikaya argues these decisions are contradictory. In the Chrizant John judgment, Judge Tchikaya criticizes the Court for finding that Mr. John’s Article 7 right to be heard was not violated because the right requires the sentence imposed to be “legally unobjectionable.” Because the death penalty is not a “legally unobjectionable” sentence, Judge Tchikaya finds Mr. John’s Article 7 rights to have been violated. In the Makungu Misalaba judgment, Judge Tchikaya argues that the majority contradicted itself by finding that Mr. Misalaba’s Article 5 right to dignity was not violated while at the same time finding his Article 4 right to life was violated, because to sentence someone to death is to violate both Article 4 and Article 5 of the Charter. For similar reasons, Judge Tchikaya argues the John Lazaro judgment is subject to the same criticisms.

For further information, please see:

AfCHPR – Dissenting Opinion of Judge Blaise Tchikaya, John Lazaro v. United Republic of Tanzania, Makungu Misalaba v. United Republic of Tanzania, Chrizant John v. United Republic of Tanzania – 7 Nov. 2023

AfCHR – Judgment on Merits and Reparations, Makungu Misalaba v. United Republic of Tanzania – 7 Nov. 2023

AfCHR – Judgment on Merits and Reparations, Chrizant John v. United Republic of Tanzania – 7 Nov. 2023

AfCHR – Judgment on Merits and Reparations, John Lazaro v. United Republic of Tanzania – 7 Nov. 2023

Amnesty International – Case on death-row detainees challenging mandatory death penalty – 25 June 2023

Parlementarians for Global Action – Tanzania and the Death Penalty