New Public Redacted Documents available on Al Hassan Trial

By: Rebecca Buchanan

Impunity Watch Staff Writer

THE HAGUE, Netherlands – On October 21st, 2020, Trial Chamber X of The International Criminal Court (ICC) released new public redacted versions of key trial decisions in the case of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mohamed (Al Hassan).

Al Hassan during pre-trial discussions at the International Criminal Court. Photo Courtesy of the ICC.

The Al Hassan trial began on July 14th, 2020, following a lengthy Pre-Trial Phase. Al Hassan is accused of war crimes and crimes against humanity committed in Timbuktu, Mali between 2012 and 2013. On September 8th, 2020, the prosecution began its ongoing presentation of evidence and witness testimony.

The newly released trial documents address the inclusion of prior recorded testimony, the validity of expert witnesses for the prosecution, and the late addition of evidence to the Final List of Evidence by the prosecution. The documents, originally dated August 5th, 2020, provide valuable insight into the ongoing witness testimony brought by the prosecution, and shed light on the Chamber’s application of its own Rules of Procedure and Evidence.

On June 1st-2nd, 2020, the prosecution filed multiple requests regarding 27 proposed expert witnesses. They sought to authorize the validity and use of specific expert witnesses (noted in the document by number, rather than name), and the introduction of previously recorded testimony by additional expert witnesses pursuant to Rule 68(3). Rule 68(3) of the ICC Rules of Procedure and Evidence allows the introduction of previously recorded testimony so long as the witness is present before the Trial Chamber, the witness does not object to the inclusion of the testimony, and all parties have the opportunity to examine the witness during the trial.

The defense filed a response to the request challenging the relevance and probative value of 6 expert witnesses and objecting to the inclusion of previously recorded testimony by 8 of the prosecution’s witnesses. In its ruling, the Chamber noted that it would not determine the admissibility of evidence until the end of the trial but would offer preliminary decisions relating to Rule 68(3) and the general permissibility of certain expert testimony. The Chamber determined that 21 of the 27 proposed expert witnesses for the Prosecution would be allowed to testify. The Chamber deemed the previously recorded testimony of 12 expert witnesses admissible under 68(3) but, in service of fairness to the defense, limited the prosecution’s examination to one hour.

The June 1st-2nd, requests also included an appeal for late additions to the prosecution’s Final List of Evidence pursuant to Regulation 35 of the Regulations of the Court. Regulation 35 allows the court to extend any time limit placed upon parties when good reason is shown, or when a party can prove they were unable to file their application within the time limit for reasons beyond their control. The defense filed a response opposing portions of the prosecution’s request, noting that the prosecution had already been granted an extension on the deadline to produce evidence from April 14, 2020, to May 12, 2020. The Chamber judgment granted the addition of 11 items into the prosecution’s Final List of Evidence, none of which were objected to by the defense.

The prosecution’s presentation of evidence and witness testimony is ongoing. The defense and Legal Representatives of Victims will give their opening statements when the prosecution concludes its presentation of the case.

For further information, please see:

International Criminal Court – Al Hassan Case: Decision on the Prosecution’s Proposed Expert Witnesses – 21 Oct. 2020

International Criminal Court – Al Hassan Case: Decision on the Prosecution Requests Pursuant to Regulation 35 Regarding P-0660 and P-0661 and to add 12 items to its Final List of Evidence – 21 Oct. 2020

International Criminal Court – Al Hassan Case: Case Information Sheet – Oct. 2020

Impunity Watch – First Witness of the Prosecution Testifies at Al Hassan’s Trial – 5 Oct. 2020

The IACHR Brings Freedom of Expression Violations, Against Indigenous Broadcasters, to the Attention of the Inter-American Court and the Government of Guatemala

By: Christian González

Journal of Global Rights and Organizations, Associate Articles Editor

GUATEMALA – Two recent cases involving actions of the Guatemalan government against local indigenous radio stations have been reported and brought to the Inter-American Court of Human Rights (hereinafter “the Inter-American Court”) and the Government of Guatemala, by the Inter-American Commission on Human Rights (IACHR).

Anastasia Mejía Triquiz, the director of Xolabaj Radio and TV, was arrested by police on September 22nd, 2020. Photo Courtesy of The Coalition For Women In Journalism.

The first involves the legal obstacles faced by four local stations operated by indigenous people, including access to radio frequencies and criminal consequences imposed on any unauthorized operations. The second involves the arrest, detention, and delayed hearing process of indigenous journalist Anastasia Mejía Triquiz.

On April 3rd, 2020, the IACHR presented a merits report to the Inter-American Court regarding four Guatemalan radio stations, each operated by a different indigenous ethnic group. These four are: a station based in Sumpango operated by Kaqchikel Maya, a station based in San Miguel Chicai operated by the Achí Maya, a station based in Cajolá operated by Mam Maya, and a station based in Todos Santos Cuchumatán operated primarily by Maya of Mam heritage. The IACHR found that the Guatemalan government placed legal barriers that prevent access of radio frequencies to local indigenous communities and caused indirect discrimination against them.

Guatemalan law dictates that radio frequencies are assigned to parties that can produce the highest financial offer, making it essentially a bidding process. The IACHR asserts that this burdens indigenous communities due to the fact that many suffer from poverty and cannot afford to make competitive offers. This in turn disenfranchises these communities from lawful radio broadcasting. Article 13.3 of the American Convention states that “[t]he right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies…. or by any other means tending to impede the communication and circulation of ideas and opinions.” According the IACHR, the Guatemalan government has violated Article 13.3 by imposing these funds-based restrictions, effectively preventing indigenous communities from preserving and sharing their culture and language through community radio stations.

Furthermore, Guatemalan law criminalizes unauthorized operation of radio broadcasts as a theft offense, which the IACHR views as an additional burden on indigenous communities and as government censorship, a violation of Article 13.2 of the American Convention. The IACHR has compiled a list of remedial recommendations for the government to follow that include increased access to radio frequencies, refraining from the use of criminal law against indigenous communities, and full reparations to those communities already harmed. The case is pending in the Inter-American Court, which is currently waiting on receipt of written arguments from parties.

On October 22nd, 2020, the IACHR Office of the Special Rapporteur for Freedom of Expression released a statement to the Guatemalan government regarding the arrest and detention of Anastasia Mejía Triquiz. Mejía Triquiz is a journalist of K’iche Maya heritage and the director of the Xolabaj Radio and TV stations based in Joyabaj. On September 22nd, she was arrested by the National Civil Police on charges of sedition and attempt with aggravated arson and aggravated robbery, though further justification of these charges has not been given by the government.

The Office believes that Mejía Triquiz’s arrest is possibly linked to her coverage of local demonstrations against the alleged corruption surrounding Joyabal Mayor Francisco Carrascosa’s use of COVID-19 relief funds. Her coverage and criticisms of Carrascosa were broadcasted on Xolabaj’s Facebook page.

Mejía Triquez has been detained for 31 days without a judge’s official order of pre-trial detention. Her first statement hearing has been postponed twice, and it seems she will have been detained for a total of 37 days before her first hearing. The Office alleged that this is a deprivation of her personal liberty and freedom of political speech, and acknowledges the indirect censorship effects this has on other indigenous broadcasters. In its press release, the Office called on the Guatemalan government to respect the expression and liberty rights of Mejía Triquez and to guarantee her a diligent investigation of the charges brought against her.

The Office stated that it believes that Mejía Triquez’s arrest and the above pending case in the Inter-American Court constitute an ongoing effort by the government to quash the freedom of expression rights of indigenous community broadcasters throughout Guatemala.

For further information, please see:

Inter-American Commission on Human Rights – Press Release: The IACHR presents case involving Guatemala before the Inter-American Court (Spanish) – 25 Sep. 2020

Inter-American Commission on Human Rights – Report No. 51/18, Petition 1779-12: Indigenous Kaqhikel Maya People of Sumpango and Others vs. Guatemala (Spanish) – 5 May 2018

Inter-American Commission on Human Rights – American Convention on Human Rights – 22 Nov. 1969

Inter-American Court of Human Rights – Case Information: Indigenous Kaqhikel Maya People of Sumpango and Others vs. Guatemala (Spanish) – 5 Aug. 2020

Inter-American Commission on Human Rights, Special Rapporteurship for Freedom of Expression – Press Relese: The Office of the Special Rapporteur considers inadmissible the delay in the detention process of indigenous journalist Anastasia Mejía Triquis in a pandemic context and calls on the State of Guatemala to respect and guarantee her right to personal liberty and due process of law – 22 Oct. 2020

Iniciativa Mesoamericana de Mujeres Defensoras de Derechos Humanos – We demand the release of the journalist Anastasia Mejía in Guatemala (Spanish) – 21 Oct. 2020

Facebook – Xolabaj Radio – Last Updated Oct. 19, 2002

Yacouba Traore’s Case Dismissed by the African Court

By: William Krueger

Impunity Watch Staff Writer

ARUSHA, Tanzania – On February 20, 2018, Yacouba Traore filed an application before the African Court on Human and Peoples’ Rights against the Republic of Mali alleging a violation of his rights to “respect for life and physical and moral integrity” and “work under fair and satisfactory conditions” as granted to citizens under the jurisdiction of the Court in section 4 and Article 15 of the Charter respectively.

The Eleven Honorable Justices of the African Court on Human and Peoples’ Rights Seated Outside of the Courthouse. Photo Courtesy of the AfCHPR.

 

The allegations stem from what Traore alleges was an unfair dismissal on August 31, 2012, from his position as a Chief Chemist with ANALAB Exploitation, a company that is a member of the ALS Mali SARL Laboratory Group. Traore stated that he was not classified in a category that responded to his profession and was underpaid for his work. Traore made claims to be reclassified but was met with retribution, one such act being sent to work in Bamako for training. While Traore worked in Bamako he continued to face acts of retribution cumulating in being summoned before a disciplinary board, being laid off, and having his work obstructed by coworkers at the employer’s request.

Traore first attended the Bamako Labour Court as he alleged that his dismissal violated Article L 277 of the Labour Code where his position required that an employer seek authorization from the Regional Director of Labor before dismissing him. The Bamako Labour Court ruled that his dismissal was unlawful on January 7, 2013, but saw no further action taken against his employer. The case would rise up to the Supreme Court of the Republic of Mali who would remand the case to the Bamako Court of Appeals on the basis there was a failure to recognize Traore’s rights. Traore had also filed a complaint with the Bamako Public Prosecutor on February 22, 2017, alleging forgery by the former National Director of Labour, the former Regional Director of Labour in Bamako, and an employee of a Bamako labor service who he believes was involved in his dismissal from ANALAB Exploitation. However, the Public Prosecutor of Bamako dismissed these complaints as the office believed there had been no violation of criminal law. Traore requested that he receive reimbursement for contributions to social security, payment of eighty million CFA francs in damages in accordance with a letter filed with the Bamako Labour Court, the remaining eight million CFA francs of a housing bonus, reimbursement of medical costs stemming from treatment of his spouse and children, payment of one million CFA francs for overtime, and the issuance of a work certificate. The Republic of Mali requested the Court declare the Application as inadmissible and baseless and for Traore to pay his own court costs.

The Republic of Mali objected to Traore’s application on the basis that Traore had failed to exhaust local remedies before filing with the Court. The Republic of Mali argued that Traore failed to produce any evidence illustrating his exhaustion of local remedies, having only provided copies of decisions. Upon investigation, the Court found that the Supreme Court of the Republic of Mali overturned a judgment on September 12, 2017, and referred it back to the Bamako Court of Appeals which led to his win in Bamako Labour Court. However, Traore never saw action taken against his employer because he had filed his application well before the case was decided in a local remedy. Thus, the Court had found that Traore’s application did not comply with Article 56 of the Charter and Rule 40.

Specifically, Traore’s application failed to comply with Article 56.5 and Rule 40.5 as both require an applicant to only file after an “exhaustion” of local remedies. In a unanimous decision, Traore’s application was found inadmissible and was dismissed.

For further information, please see:

African Court on Human and Peoples’ Rights – African (Banjul) Charter on Human and Peoples’ Rights – 27 June 1987

African Court on Human and Peoples’ Rights – Judgment (25 Sept. 2020) – 25 Sept. 2020

African Court on Human and Peoples’ Rights – Rules of Court – 2 June 2010

Nicaragua’s Proposed Foreign Agent and Cybercrime Bills Target Independent Media and Human Rights Organizations

By: Elyse Maugeri 

Impunity Watch Staff Writer

MANAGUA, Nicaragua – In late September of this year, President Daniel Ortega’s ruling party introduced two new bills to Nicaragua’s National Assembly. These bills are the Proposed Foreign Agent bill and Cybercrime bills. The aim of the new legislation is to severely restrict freedom of speech and limit the critics of the Sandinista party.

Inside of the Nicaragua National Assembly. Photo Courtesy of Prensa Latina

Human Rights Watch has noted the bills’ likeness to similar laws in Russia. Those laws have notably been condemned by the Commissioner for Human Rights of the Council of Europe, as a violation of international norms; and have been the subject of litigation in the European Court of Human Rights more than once.

The Law for the Regulation of Foreign Agents is aimed at human rights organizations and media outlets operating in Nicaragua. These organizations fear that this law targets them specifically as many of them depend on foreign-based funding.

This bill requires any person or entity receiving funding directly or indirectly from abroad to register with the government as a “foreign agent.” They also must register if they work for or represent the interests of a foreign government, foundation, or business. If they fail to do so, the consequences include fines, cancellation of registration, and seizure of property. Furthermore, if these “foreign agents” are found to have intervened in any domestic political affairs, they will face unspecified legal sanctions.

The Special Law on Cybercrimes is aimed at criminalizing those who spread “fake news” and other critical speech on the internet. Its provisions include lengthy criminal sentences for anyone found “publishing or disseminating false or distorted information” or any expression that “promotes hate and violence.” Prison sentences are also outlined for any person using technology to disclose classified or “personal” information and for anyone “praising” criminal activity. The terms used are not further defined in the bill, leaving them up to interpretation.

Nicaragua has ratified both the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights (ACHR). Under these, countries may only limit free speech when necessary, and the limitations must be done proportionately. Both of the new bills work directly against the goals of the ICCPR and ACHR and are largely inconsistent with international law.

The Inter-American Commission on Human Rights (IACHR) expressed its concern in a statement in which it highlighted Article 13 of the ACHR, which establishes the right to freedom of thought and expression. They further point to the 2011 Joint Declaration on Freedom of Expression and the Internet of the IACHR and UN Special Rapporteurs that promotes freedom of expression as it applies to the internet, allowing only for limitations in circumstances in which international law would allow such as national security.

The decision by the Nicaraguan government to introduce these bills has only intensified international concern. Since 2018, journalists and independent media outlets have been targeted by the government. Emmanuel Colombié, of Reporters Without Borders stated recently, “we totally condemn this outrageous and unconstitutional bill designed to step up censorship and intimidation of Nicaragua’s independent media. The national assembly must reject this draconian legislation, which would provide Daniel Ortega’s government with a new repressive tool for silencing its critics.”

For further information, please see:

Associated Press – Proposed Nicaragua law could muffle dissent – 23 Sept. 2020

Human Rights Watch – Nicaragua: Ortega Tightening Authoritarian Grip – 8 Oct. 2020

IACHR – The IACHR and its Office of the Special Rapporteur for Freedom of Expression express concern about new legal threats to freedom of expression and indirect measures against the media and journalists in Nicaragua – 7 Oct. 2020

Reporters Without Borders – RSF and PEN urge Nicaraguan legislators to reject “foreign agents” bill – 29 Sept. 2020

ICC’s Prosecutor Visits the Central African Republic Ahead of the Trial Against Two Alleged War Criminals

By: Thomas Harrington

Journal of Global Rights and Organizations, Lead News Editor

BANGUI, Central African Republic – Fatou Bensouda, International Criminal Court’s (ICC) chief prosecutor in its investigation into the Central African Republic (CAR), met with CAR’s president to discuss the progress of the ICC’s investigations and the upcoming trials of two of the accused. Bensouda concluded her third trip to the CAR since the ICC’s investigations into the conflict began in 2014.

ICC Prosecutor Fatou Bensouda concludes her trip to the Central African Republic. Photo Courtesy of the ICC.

The conflict in the CAR has been going on since March of 2013 and is between ex-Seleka Muslims and anti-Balaka Christians. The fighting has caused the displacement of millions and has resulted in numerous war crimes. While the CAR is predominantly Christian, Seleka rebels overthrew the government in 2013 and held power until 2014. The Seleka president was forced to step down due to international pressure and disbanded the Seleka. Since then, the country has largely been separated into a Muslim North and Christian South. The Christian anti-Balaka militias and ex-Seleka groups have since continued the fighting. The United Nations Security Council and the ICC began investigations into human rights abuses back in 2014, and two cases are about to begin in the ICC.

On February 9th, 2021, the trial against Alfred Yekatom and Patrice-Edouard Ngaïssona, is set to begin in the ICC. The charges against them are a result of the ICC’s investigation, asked for by the CAR’s government, into both sides of the conflict. Yekatom and Ngaïssona are both accused of being anti-Balaka leaders who committed various crimes against humanity and war crimes against Muslim Seleka’s. While the investigation is into both sides of the conflict, the ICC has so far not charged any Seleka fighters.

Alfred Yekatom is an alleged former commander in the anti-Balaka movement who commanded around 3,000 soldiers. He is accused of committing the war crimes of murder, torture, directing attacks against a civilian population, “enlistment and conscription of children under the age of 15 years to participate in hostilities,” amongst other crimes. Yekatom is also accused of multiple crimes against humanity in various locations throughout the CAR.

The ICC stated that Patrice-Edouard Ngaïssona was the National General Coordinator of the anti-Balaka militia, and that he aided, abetted, or otherwise assisted in crimes against humanity and war crimes in the CAR. Ngaïssona was the former head of the CAR’s football federation and committee member of the Confederation of African Football. Because of his position, many in the CAR believed him to be “untouchable.” He was arrested in France in 2018 and charged with similar war crimes and crimes against humanity as Yekatom, with the addition of rape.

The Pre-trial Chamber II joined the cases of Yekatom and Ngaïssona in February of 2019. The decision was made in order to enhance and expedite the proceedings and avoid duplication of evidence. At the time of the joinder, 1,085 victims had been permitted to participate in the hearing through legal representation.

Bensouda’s trip to the CAR, along with the ICC’s launch of an assistance pilot project from the Trust Fund for Victims (TFV), are important visible steps toward justice from the horrific violence from this conflict. The ICC is showing that it is continuing to keep its promise, from 2014, to investigate the crimes against humanity committed in the CAR between the ex-Seleka and anti-Balaka groups.

For more information, please see:

International Criminal Court – Statement of the Prosecutor, Fatou Bensouda – 1 Oct. 2020

International Criminal Court – Case Information Sheet: Situation in Central African Republic II – 17 Mar. 2020

AP News – ICC: Former Central African Republic militia leader arrested – 12 Dec. 2018

Aljazeera – UN launches CAR probe to prevent genocide – 10 Mar. 2014

BBC NEWS – Central African football official Ngaïssona faces war crimes trial – 12 Dec. 2018

Reuters – Central African Republic rebels demand partition in Brazzaville talks – 22 Jul. 2014

International Criminal Court – Press Release – 8 Oct. 2020