ICC Office of the Prosecutor Launches New Policy to Bolster Principles of Complementarity and Cooperation

By: Remy Kane

Impunity Watch News Staff Writer

THE HAGUE, Netherlands – On April 25, 2024, in accordance with several new policies released recently, the International Criminal Court (ICC) Office of the Prosecutor launched a new Policy on Complementarity and Cooperation. The Policy is the product of a global consultation process that began in October of last year that engaged States parties, civic society, academic institutions, and affected communities.

 
ICC Prosecutor Karim A.A. Khan during a visit to Bangladesh. | Photo courtesy of ICC.
 

The goal of the Policy is to fortify the ICC’s application of the Rome Statute’s principles of complementarity and cooperation. The principle of complementarity calls for collaboration between national criminal jurisdictions and the ICC. In essence, while states have primary authority to investigate and prosecute international crimes, the ICC may step in on a case-by-case basis to ensure that these crimes are justly addressed.

The new Policy is aimed toward strengthening the ICC’s relationship with other criminal jurisdictions to serve the ultimate goal of investigating and prosecuting global atrocities. To effectuate this, the Policy proposes a two-track strategy that will promote cooperation and partnership with states as well as frequent complementary action, while remaining faithful to the ICC’s mandate to independently and impartially handle Rome Statute crimes.

This approach reflects the important balance the ICC seeks to maintain between its duties and that of other jurisdictions. If this equilibrium is disrupted, however, the principle of complementarity, which is bolstered by this new Policy, allows the ICC to take action. This notion is forthright in the body of the Policy which states, “if States step up, the Office will step out. But equally, the reverse is also true. If states do not step up, the Office will not hesitate to fulfill its mandate.”

The Policy, which is referred to as a “renewed partnership for accountability,” suggests four pillars for enhanced cooperation and complementarity: (1) creating a community of practice, (2) technology as an accelerant, (3) bringing justice closer to communities, and (4) harnessing cooperation mechanisms.

Each of the new ICC policies launched in recent months have put victims and survivors of crimes at the forefront, and this one is no exception. The Deputy Prosecutor, Mame Mandiaye Niang, expressed that the Policy’s partnership-centered approach stands to deliver more for victims by way of further increased vigilance to global atrocities.

To aid in the implementation of the Policy, the Office of the Prosecutor has established a trust fund specifically dedicated to complementarity and cooperation. Contributions to this fund will support complementarity activities, such as providing information and assistance to national authorities in the implementation of their Rome Statute obligations. Further methods of deepening the ICC’s relationships with other jurisdictions will be supported by the trust fund as well, including a Complementarity and Cooperation Forum and other accountability efforts.

For Further Information, please see:

ICC – ICC Office of the Prosecutor launches policy on Complementarity and Cooperation – 25 Apr. 2024

ICC – Policy on Complementarity and Cooperation – Apr. 2024

Legal Information Institute – Complementarity defined – ND

 

ECHR Finds Russia Violated Multiple Human Rights Following 2008 Conflict with Georgia

By: Johannah Brown

Impunity Watch News Staff Writer

STRASBOURG, France – On April 9, 2024, the European Court of Human Rights (ECHR) delivered a judgment in the case of Georgia v. Russia (IV), where it unanimously found that Russia had committed multiple violations of human rights following its 2008 conflict between Georgia.  Specifically, Russia violated Article 2, 3, 5 § 1 and 8, Article 1 and 2 of Protocol No. 1 and Article 2 of Protocol No. 4 of the European Convention on Human Rights.

 
EU observers at the “administrative boundary line” between Georgia and South Ossetia. | Photo courtesy of Sergey Ponomarev for The New York Times.
 

The conflict began in 2008 when Russia invaded Georgia and began occupying the regions of Abkhazia and South Ossetia.  What followed is what is referred to as the “borderiszation” process, which restricted freedom of movement between the occupied territories and Georgia and resulted in numerous human rights abuses.

Russia erected physical barriers, installed surveillance equipment and deployed Russian border guards to the new administrative boundary line (ABL). The measures severely impacted the local Georgian population and people living near or trying to cross the administrative boundaries faced arrests, detentions, and sometimes even fatal incidents if found violating crossing rules. These barriers disrupted daily life, caused families to be separated, denied families access to their farmlands, and restricted children from accessing education in their Georgian language.

The Georgian government filed its application with the ECHR on August 22, 2018, ten years after the conflict began. The Georgian Government alleged that systematic harassment, unlawful arrests, and detention of its citizens led to widespread human rights abuses and violations of rights contrary to several Articles in the Convention of Human Rights.

The ECHR examined evidence, including victim lists, testimonies, forensic reports, and international observations and found a broader pattern of abuse that amounted to an administrative practice. In its decision, the Court noted that the complaints fell under an “administrative practice” of human rights violations, meaning a “repetition of acts incompatible with the Convention” that included an element of ‘official tolerance’ by the State.” The Court held that the Georgian Government had established beyond a reasonable doubt that these violations were officially tolerated by the Russian Government, taking note in its decision that the Russian Government had failed to participate in the proceedings and therefore there was no dispute of the facts.

With regards to Articles 2 and 3 the Court, pointed to evidence of the torture and extra-judicial killings of several residents trying to cross the border as well as the killing of seven pensioners trying to cross the ABL to collect their pension. In finding violations of Article 5, the Court pointed to evidence of at least 2,800 cases of arrest and detention for “illegally crossing.”

The ECHR’s decision comes one year after the Court ordered Russia to pay $134 Million to Georgia in compensation for the 2008 conflict. Georgian Minister of Justice Rati Bregadze commenting on the court’s decision, stated the ruling “underscored Georgia’s territorial integrity and the unlawfulness of the borderization process” and went on to say the ruling was “an important step toward the ultimate goal of achieving the complete de-occupation” of Georgia.

For further information, please see:

European Court of Human Rights – Judgment Georgia v. Russia (IV) – 9 Apr. 2024

European Court of Human Rights – Summary Judgment Georgia v. Russia – 9 Apr. 2024

Georgian Public Broadcaster – Justice Minister: On this symbolic day, Georgia takes another big step towards de-occupation – 9 Apr. 2024

Jurist – ECHR rules Russia violated Georgia citizens’ humans rights following 2008 conflict – 10 Apr. 2024

ECHR Rules that Coercive Methods Used to Recruit and Exploit “Web Models” Constituted Human Trafficking

By: Karla Lellis

Visiting Impunity Watch News Writer

STRASBOURG, France – On March 12, 2024, the European Court of Human Rights (ECHR) ruled in the case of Jasuitis And Šimaitis V. Lithuania, finding that coercing women to work as “web models” constituted as human trafficking. This decision highlights the importance of legal clarity and a victim-centred approach to dealing with such exploitation, aligning with Article 7(1) of the Convention.

 
A person’s hands held up facing the camera in a dark background. | Photo courtesy of Vecteezy.
 

The proliferation of internet technologies has profoundly transformed the dynamics of human trafficking. The UNODC’s 2020 Global Human Trafficking Report characterizes cyberspace as “digital hunting grounds” for traffickers, who exploit the expansive reach and anonymity of online platforms. Traffickers have skillfully leveraged digital tools to advertise deceptive job offers, promote exploitative services, and identify vulnerable individuals through social media. The rise of webcams and live streaming has further facilitated new forms of exploitation, as traffickers demonstrate a disturbing aptitude for using digital spaces to perpetuate their illicit activities.

This disturbing trend is exemplified in the Jasuitis and Šimaitis v. Lithuania case, where young women were recruited through deceptive online advertisements to work as “web models.” The victims were coerced into performing sexual acts on camera, including nudity and using sex toys, facing threats and psychological manipulation. Police investigation revealed multiple cases of exploitation, with the perpetrators providing equipment and apartments, then demanding debt repayment while closely monitoring and pressuring the women to generate income through long, exploitative work hours. Vulnerable young women facing financial, or family difficulties were specifically targeted and subjected to these abusive practices, leading to legal action against the traffickers.

In their defense, the Jasuitis and Šimaitis applicants argued that their convictions for trafficking were unpredictable, thus violating Article 7 of the European Convention on Human Rights. Article 7 reflects the principle of nulla poena sine lege (no punishment without law), which prohibits criminal sanctions for acts not clearly defined as offenses. The applicants claimed the national courts’ interpretation of trafficking laws was overly broad and lacked clarity, leading to uncertainty about the scope of liability. They argued this lack of foreseeability undermined their right to a fair trial and legal certainty under Article 7.

However, the European Court of Human Rights unanimously rejected this argument. The Court found the relevant criminal law provision, Article 147 § 1 of the Lithuanian Criminal Code, did not give rise to ambiguity, and the domestic courts’ interpretation was consistent and sufficiently precise. Crucially, the Court determined the applicants could foresee that their actions of deceiving victims and exploiting them for pornographic services would constitute a trafficking offense. The Court did not find the application of the law to be overly expansive or lacking in safeguards against arbitrary prosecution.

This ruling reinforces the ability of European states to effectively prosecute human trafficking, even as traffickers adapt their methods to the digital realm. As technology continues to transform the landscape of exploitation, robust legal frameworks and victim-centered approaches will be essential in combating this evolving menace.

For further information, please see:

ECHR – Jasuitis and Šimaitis V. Lithuania, App No. 28186/19 and 29092/19 – 12 Mar. 2024

ECHR, Guide on Article 7of the European Convention on Human Rights – No punishment without law:
the principle that only the law can define a crime and prescribe a penalty31 Aug. 2022

UNDOC, Global Report on Trafficking in Perso, U.N. Doc. Sales No. E.20.IV.3 – 2020

ICHR Finds Ecuador Responsible for Violating Whistleblower’s Freedom of Expression

By: Carlos Dominguez Scheid

Impunity Watch News Staff Writer

SAN JOSE, Costa Rica – The Inter-American Court of Human Rights (ICHR) issued a decision on November 27, 2023, with formal notification delivered on March 22, 2024, ruling that Ecuador is responsible for violating the freedom of expression of a whistleblower who reported corruption within the country’s Armed Forces.

 
Julio Rogelio Viteri Ungaretti | Photo courtesy of BBC News.
 

The Court’s judgment emphasizes the critical role of freedom of speech in ensuring transparency and accountability in government operations. It brings to light the significant challenges faced by individuals exposing misconduct, especially within military contexts, and establishes an important precedent for handling similar cases across the region.

The case involves Mr. Julio Rogelio Viteri Ungaretti, who reported suspected corruption within the Armed Forces in 2000, resulting in several sanctions against him. The Court reviewed the effects of corruption on democracy and human rights, emphasizing the necessity for states to create a supportive environment for whistleblowers and individuals engaged in anti-corruption activities.

The Court discussed the responsibility following the exercise of free speech concerning corruption allegations, noting that such cases are of public interest due to their impact on human rights. It affirmed the importance of society’s right to be informed about corruption, making such disclosures a protected form of speech under Article 13 of the American Convention on Human Rights.

The Court stressed that public officials have both the right and duty to report corruption based on reasonable belief and are expected to verify the accuracy of their information as much as possible, without having to confirm its authenticity at the time of reporting. The state is urged to provide adequate channels to facilitate reporting and ensure the protection of whistleblowers, including safeguarding their identity and personal integrity.

Finally, the Court assessed the repercussions of penalizing individuals for exercising their freedom of expression in reporting suspected corruption. It recognized that allegations of corruption involving public officials hold significant public interest and affect human rights, warranting special protection under Article 13 of the Convention. The Court stressed the importance of providing adequate channels for reporting corruption, underscoring the need to facilitate these disclosures and protect those who come forward.

For further information, please see:

Caso Viteri Ungaretti y Otros vs. Ecuador—2022  

Corte Interamericana De Derechos Humanos Caso Viteri Ungaretti Y Otros Vs. Ecuador—27 Nov. 2023

Diplomat Flees To Market Town—26 Nov. 2022

IACHR refers case on Ecuador to the Inter-American Court—16 July 2021

 

 

 

 

 

Supreme Court of New Zealand Rules that Individuals Have Standing to Bring Climate Actions

By: Suzan Elzawahry

Journal of Global Rights and Organizations, Associate Articles Editor

WELLINGTON, New Zealand – On February 7th, 2024, the Supreme Court of New Zealand unanimously reversed a Court of Appeals decision that denied standing to a private citizen attempting to bring a tort action against New Zealand’s biggest carbon emitters. As a result, individuals in New Zealand now have standing to bring tort claims based on carbon emissions and potentially broader claims of man-made climate change. New Zealand may become the first common law jurisdiction to issue damages for a climate tort. If other jurisdictions follow suit, legal protections surrounding the right to life and freedom of belief may be significantly expanded. 

 
Power lines running through beautiful New Zealand landscapes. | Photo courtesy of Stewart Watson, Getty Images.
 

Plaintiff, Michael John Smith, is a Maori elder and the climate change spokesperson for his tribe. Initial pleadings stated that the release of greenhouse gas emissions by seven corporations in New Zealand (who made up one third of the country’s total greenhouse gas producers) risked adverse effects upon humankind and irreparable damage to the Maori’s customary and cultural interest in land. The claims were for negligence, tort of nuisance, and a novel claim of the tort of climate damage. 

The Court of Appeals struck down all three claims, stating that they did not amount to a reasonably arguable cause of action. In American Jurisprudence, this is equivalent to granting summary judgement to the defendant for the plaintiff’s failure to state a claim. 

The Supreme Court unanimously reversed this decision and reinstated Smith’s claim, reasoning that, procedurally, the Court is required to assume that the consequence of Defendant’s carbon emissions is Plaintiff’s harm and that it is the job of the trial court to hear further evidence. 

Most notably, the Court paid particular attention to the fact that Mr. Smith’s claim is partially tikanga based. Tikanga is the principle of a genealogical and kinship-based connection to land, fresh water, and sea possessed by the Maori people. Mr. Smith alleges tikanga can form the basis of a tort because an injury to the land is also an injury to himself and his descendants; he argues that the respondent’s actions are the cause of injury to his cultural, spiritual, and nutritional connection to the environment. In their analysis, the Court accepted this argument and expressly recognized the importance of allowing tikanga to inform New Zealand’s body of common law. In recognizing the importance of tikanga and extending legal protections based on it, the Court took a major step towards protecting the freedom of belief. 

Whether Mr. Smith will prevail in his tort claim is something only time will tell. However, the fact that a private citizen now has standing to sue major carbon emitters for tortious conduct is an astounding leap forward in expanding legal protection of the right to life. As carbon emissions continue to unfavorably impact global climates and human life, individuals may begin to find reprieve in their local courts. 

For further information, please see:

Climate Case Chart – Smith v Fonterra – 12 Apr. 2024 

NZSC – Smith v. Fonterra Co-Operative Group – 2024 

Supreme Court of New Zealand – Media Release Michael John Smith v Fonterra Co-Operative Group Limited and Others – 7 Feb. 2024