British Lawyer Elected Chief Prosecutor of the ICC

By: Jamie McLennan

Impunity Watch Staff Writer

THE HAGUE, Netherlands – Karim Khan, a lawyer from the United Kingdom, was recently elected Chief Prosecutor of the International Criminal Court (ICC). Mr. Khan won 72 out of the 123 represented countries, beating out individuals from Spain, Italy, and Ireland. The previous Chief Prosecutor, Gambian judge Fatou Bensouda, completed his six-year term in June. Diplomatic correspondents believe that the victory will frame the United Kingdom positively among other foreign nations. After Britain’s recent withdrawal from the European Union (EU), the country is attempting to form diplomatic relations in other legal arenas. Karim Khan’s election to the ICC will likely show Britain’s continued commitment to foreign relations, despite their recent departure from the EU. The United Kingdom’s Foreign Secretary, Dominic Raab, celebrated the election and commended Mr. Khan’s commitment to international justice. 

Mr. Karim Khan speaking at the United Nations. Photo Courtesy of the United Nations.

Mr. Khan’s experience in the international legal system is extensive. During his 27 years as a lawyer, he worked for the prosecution in the International Criminal Tribunals for Yugoslavia and the Rwandan genocide. In 2018, he began an investigation of war crimes in Iraq. Mr. Khan aimed to identify perpetrators that committed heinous crimes during the Iraq War with support from the United Nations. He also represented politically notorious figures at the ICC- such as Kenya’s Deputy President William Ruto. During the trial, Mr. Khan successfully argued for the ICC to drop all charges against President Ruto, including murder, deportation, and persecution following Kenya’s 2007 election. 

Among his first tasks as Chief Prosecutor, Mr. Khan must decide how to move forward with existing controversial investigations, including war crimes in Afghanistan. Currently, the United States does not recognize court-imposed sanctions by the ICC for the American occupation of Afghanistan during the early 2000s. As a result, Mr. Khan may face difficulty if he intends to further investigate the alleged war crimes. 

Political representatives from Israel recently vocalized their criticisms when they accused the court of impeding domestic issues that the country should resolve internally. In the past, Mr. Khan also expressed interest in the investigation of war disputes in Palestinian territories. Although Israel is not a member of the ICC, the country is likely to protest the ICC’s external involvement in the Israeli – Palestinian conflict. The United States also expressed concern about the court’s efforts to exercise jurisdiction in the disputed area. However, the ICC recently decided by a majority that the court’s jurisdiction extends to territories occupied by Israel since 1967, including East Jerusalem. In sum, Mr. Khan’s legal experience combined with his new position as Chief Prosecutor may interestingly shape policy for the International Criminal Court.

For further information, please see:

BBC News – ICC rules it has jurisdictions over West Bank and Gaza abuses – 6 Feb. 2021

BBC News – Karim Khan: UK Lawyer Elected Chief Prosecutor at ICC – 13 Feb. 2021

International Criminal Court – Office of the Prosecutor – 19 Feb. 2021

United Nations – Karim Asad Ahmad Khan – 12 Feb. 2021

International Criminal Court Convicts Dominic Ongwen of 61 Crimes Against Humanity and War Crimes

By: William P. Hendon

Journal of Global Rights and Organizations, Associate Articles Editor

THE HAGUE, Netherlands – On February 4, 2021, the International Criminal Court (ICC) found Dominic Ongwen guilty of 61 crimes against humanity, including four counts of rape, 4 counts of sexual slavery, 2 counts of forced pregnancy, and one count of forced marriage.  Ongwen was a leader of the Lord’s Salvation Army in Uganda.

Dominic Ongwen. Photo Courtesy of ICC.

The ICC had been looking for Ongwen for crimes committed in Uganda from July 2002 to December 2005. In December 2014, Ongwen gave himself up to the Central African Republic’s government who then turned him over to the ICC within ten days. Ongwen’s trial began December 6, 2016.

In 2010, the ICC issued the first warrant for a sex crime committed in furtherance of genocide. Critics say the lack of sex crime prosecutions is because the ICC’s prosecutor, Luis Moreno Ocampo, needed quick and easy cases to build the organization’s reputation. Others say the organization doesn’t prosecute sex crimes because of cultural stigmas and differences among peoples.

Acts of sexual violence have historically been brought under charges of war crimes or crimes against humanity. The ICC has expanded the definition of crimes against humanity to include crimes such as rape or forced pregnancy. Yet, the ICC has only indicted 44 people in its history. Sex crimes remain ignored and overlooked in favor of easier cases with easier evidence.

Seven witnesses testified at trial about their forced sexual encounters with Ongwen. Three of the women were Ongwen’s “wives.” One witness said, “When I started crying he asked me ‘between death and life, what do you choose?’” Another witness said, “I was only crying. I did not say anything nor refuse to sleep with him because I was fearful because he was commander and if I said anything or refused I would be killed.”

The pursuance of convictions of gender-based crimes against women and girls, under Article 7 of the Rome Statute, is pivotal for the ICC. The decision recognizes that biological females are affected by sex crimes differently than their biological male counterparts. It also allows for the organization to publicly announce that sex crimes are mainly gender-based. While this doesn’t mean to discredit other forms of sex crimes (namely, those committed against same-sex people and those committed against non-cisgender people), it is a step forward.

Ongwen was kidnapped by the LRA on his way to school as a boy. A psychiatrist at trial said Ongwen tried to escape the LRA with a few others; upon their capture, Ongwen was forced to skin another kidnappee alive. At trial, he said, “I’m one of the people against whom the LRA committed atrocities.”

For further information, please see:

BBC – Dominic Ongwen – from Child Abductee to LRA Rebel Commander – 4 Feb. 2021

BBC – LRA Commander Dominic Ongwen Appears Before ICC in The Hague – 26 Jan. 2015

ICC – Dominic Ongwen Declared Guilty of War Crimes and Crimes Against Humanity Committed in Uganda – 4 Feb. 2021

ICC – Decision Scheduling a Hearing on Sentence and Setting the Related Procedural Calendar – 4 Feb. 2021

ICC – Rome Statute of the International Criminal Court – 1 July 2002

Modern Ghana — ICC Confirms 70 Charges Against Ugandan LRA Rebel Leader — 21 Jan. 2016

Explicit Red-Tagging Escalates in the Philippines

By: Thea Bonifacio

Journal of Global Rights and Organizations, Associate Articles Editor

MANILA, Philippines – With national elections approaching in 2022, the Philippine government, under President Rodrigo Duterte, has escalated its red-tagging efforts in a bid to silence opposition. As a result, the current government’s propaganda has led to increased deaths in the past year.

Woman holds sign protesting against Red-Tagging after a famous celebrity had been red-tagged by government officials for expressing dissent. Photo Courtesy of LiCAS News Philippines.

Red-tagging is the act of accusing a group of persons as communists, or sympathizers, and publicizing these persons as “Enemies of the State,” attempting to violently overthrow the government. However, these accusations are commonly baseless and are targeted at dissenters or at civilians aiding minority or indigenous groups.

Last December 2020, a doctor and her husband were gunned down in broad daylight. Prior to her death, Dr. Mary Rose Sancelan had appeared on an unverified list from the local militia group “Kagubak,” which linked Sancelan to the New People’s Army (NPA). Sancelan had spearheaded her community’s response to COVID-19. In January 2021, the Armed Forces of the Philippines (AFP) published a list of alumni and academics from the University of the Philippines, the national university, claiming they were current NPA rebels. Recently, a lieutenant general accused a journalist of “aiding terrorists by spreading lies” when the journalist had earlier reported on a Supreme Court petition that alleged that soldiers tortured members of an Indigenous community.

Under the Philippine 1987 Constitution Article II Section 2, the Philippines adopts the generally accepted principles of international law as part of the law of the land. Additionally, the Philippines is one of the first countries to support the Universal Declaration of Human Rights (UDHR). Thus, the country has accepted Article 18 of the UDHR—the right to freedom of opinion and expression, including the right to hold opinions without interference.

Red-tagging is an indirect attempt to suppress civilians’ freedom of expression. The activity criminalizes the perpetuation of socialist practices that have helped society to various degrees. Dissent towards ineffective government responses and clamors for change becomes more challenging to continue when a label could lead to one’s death. A June 2020 report by the UN Office of the High Commissioner for Human Rights found that red-tagging in the Philippines has “posed a serious threat to civil society and freedom of expression.”

According to Neri Colmenares, a former House Representative, the escalated red-tagging of government critics is directly linked to the upcoming 2022 elections. Two specific reasons are connected to this escalation. First, dissent and criticisms towards the government’s COVID-19 response and the killings of human rights activists are mounting, which require more active tagging to stifle dissent. Second, the government fears that their candidates for the upcoming elections are not fairing well in surveys, which start as early as 2 years before elections.

As the Philippine national elections start closing in, there is a need to stay vigilant of the government’s attempts to monopolize and police free expression. The upcoming months will be a test to see whether the act of red-tagging will be penalized, with the Philippine Senate spearheading the efforts to combat the repressive act.

For further information, please see:

Human Rights Watch – Philippine General Should Answer for ‘Red-Tagging’ – 10 Feb. 2021

Philippine Inquirer.net – Red-tagging, as explained by an AFP top brass and a premier activist – 25 Jan. 2021

LiCAS.News Philippines – Yes, let’s talk about red-tagging as censorship – 31 Oct. 2020

Official Gazette – 1987 Philippine ConstitutionConstitution of the Republic of the Philippines -–  2 Feb. 1987

United Nations Universal Declaration of Human Rights -–  10 Dec. 1948

Voice of America – Deadly ‘Red-Tagging’ Campaign Ramps Up in Philippines – 18 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

Brazil’s Indigenous Communities Need Immediate Access to COVID-19 Vaccinations

Dedication:

The Journal of Global Rights & Organizations and Impunity Watch News dedicates this article to Zaiden Geraige Neto, Ph.D., who passed away from COVID-19. Zaiden was pursuing his LL.M. at the College of Law and had joined the Impunity Watch News team in 2021. Zaiden was a highly regarded class action lawyer and law professor in Brazil. He also leaves his legacy in numerous articles and books about law theory and practice. We extend our deepest sympathy to Zaiden’s wife, family, friends, and loved ones.

 Rest In Peace, Zaiden

 

BRASILIA, Brazil – As COVID-19 deaths continue to rise to their highest levels yet, and a dangerous new variant stalks Brazil, President Jair Bolsonaro tells Brazilians to “stop whining.” Currently, Brazil ranks third amongst all countries in confirmed COVID-19 cases. President Jair Bolsonaro’s “lack of a cohesive and rigorous” COVID-19 policy and other “geographic and governmental challenges” threaten all Brazilians, but particularly the vulnerable communities like the Indigenous populations.

Nurse from the Special Indigenous Health District of Mato Grosso do Sul treats patient in the Lagoinha Village. Photo Courtesy of ReliefWeb.

According to Survival International, Brazil is made of nearly 305 Indigenous tribes which are composed of 900,000 people. Amongst these Indigenous communities, there have been 50,000 confirmed COVID-19 cases and 900 deaths. “Those who have died include people working in health care, traditional healing, politics and education, as well as chiefs and leaders of their own tribes.”

Health experts warn that Indigenous people are particularly vulnerable to COVID-19 due to “factors ranging from lack of consistent healthcare to their culture of shared housing and food.” Additionally, due to the isolated nature of their communities, Indigenous people have not developed the same immunity to pathogens like the rest of the Brazilian population. While Brazil’s health ministry claimed that Indigenous communities would be some of the first to be inoculated, many Indigenous leaders of territories not recognized by the Brazilian government have stated that their community members have not been vaccinated.  According to the University of São Palo, it will take over four years for Brazil to immunize its entire population if Brazil’s current rate of vaccination is maintained. Today, only 3.8 percent of Brazilians have been vaccinated. Meanwhile, the U.S. is administering over 2 million vaccinations a day.

Indigenous healthcare workers conducting examinations and educating relatives that work in the city on quarantine protocol. Photo Courtesy of Conselho Terena Archives.

Four years is far too long. Historically, Indigenous communities have been disproportionately impacted by pandemics, such as the measles and now COVID-19. The Brazilian government must act now to protect its most vulnerable, including those who reside on land outside the Amazon that is not legally recognized. With this, Brazil should support the proposed World Trade Organization (“WTO”) Trade-Related Aspects of Intellectual Property Rights waiver (“TRIPS”).

In October 2020, India and South Africa proposed the waiver that would allow all countries “to collaborate on the COVID-19 response, including vaccine development and distribution, without being unduly hampered by the complexity of laws and restrictions governing intellectual property.” Since then, over one hundred countries globally have endorsed the proposal while President Jair Bolsonaro’s administration has remained in opposition.

During the HIV/AIDS epidemic, Brazil supported a similar proposal that allowed the global distribution of treatment.  Once again, Brazil should take the lead in “prioritizing public health over intellectual property rules” and pharmaceutical companies’ profits. Inequitable access to vaccinations is a clear human rights issue.

For further information, please see:

Reuters – Slow rollout of COVID-19 vaccine in Brazil leaves indigenous at risk – 4 Mar. 2021

BBC News – Covid: Bolsonaro tells Brazilians to ‘stop whining’ as death spike – 5 Mar. 2021

Human Rights Watch – Brazil: Support Wider Vaccine Production at WTO – 9 Mar. 2021

Just Security – Fair Shots for All: At WTO US Must Prioritize Vaccine Access for Lower-Income Countries Over Drug Company Profits – 9 Mar. 2021

NBC News – Survival of Brazil’s Indigenous groups hinges on urgent Covid response, human rights groups warn – 12 Mar. 2021

Yahoo! News – ‘History is dying’: Brazils’ Indigenous urgently need Covid vaccines, protection, groups say – 12 Mar. 2021