Trump Administration Sued Over International Criminal Court Sanctions

By: Hannah Gabbard

Journal of Global Rights and Organizations, Editor-In-Chief

WASHINGTON, District of Columbia – On October 1, 2020, the Open Society Justice Initiative, a public interest law center dedicated to human rights, and four international law professors filed a complaint in federal court against the United States government challenging Executive Order 13928.

International Criminal Court in The Hague, the Netherlands. Photo Courtesy of Human Rights Watch.

Executive Order 13928, Blocking Property of Certain Persons With the International Criminal Court was issued on June 11, 2020, and implemented under the Treasury Department Office of Foreign Assets Control regulation promulgated on September 30, 2020. Citing the U.S. Constitution, the International Emergency Economic Powers Act (IEEPA), the National Emergencies Act, the Immigration and Nationality Act, and Title III of the United States Code, Executive Order 13928 declared a national emergency and threatened sanctions against International Criminal Court (ICC) officials. Executive Order 13928 specifies that the ICC action including “illegitimate assertions of jurisdiction over personnel of the United States and certain of its allies, including the ICC Prosecutor’s investigation into actions allegedly committed by United States military, intelligence, and other personnel in or related to Afghanistan” poses an “unusual and extraordinary threat to the national security and foreign policy of the United States.”

The plaintiffs primarily allege that Executive Order 13928 violates their First Amendment right to freedom of speech. Moreover, plaintiffs allege that the Executive Order is a violation of the Due Process Clause of the Fifth Amendment, is ultra vires under the IEEPA, and is a violation of the Administrative Procedure Act. The plaintiffs’ prayer for relief includes a declaration that the Executive Order violates each of their alleged claims, a request that the Court enjoins the defendants from enforcing the Executive Order against the plaintiffs, and for incurred costs and attorneys’ fees. 

In March 2020, the ICC Appeals Chamber authorized the ICC Prosecutor to begin an investigation into alleged crimes against humanity and war crimes committed during the armed conflict in Afghanistan since May 2003. Afghanistan ratified the Rome Statute in 2003 which establishes the ICC’s jurisdiction over designated crimes committed in Afghanistan or by its citizens. This nexus implicates United States citizens for any conduct impermissible under the Rome Statute committed since 2003. However, due to restrictions in place throughout the coronavirus pandemic, the ICC is not currently taking any investigative steps in Afghanistan.

Since President Trump issued Executive Order 13928, numerous ICC member countries, human rights organizations, and legal scholars have spoken out against this action and indicated their support for the mission and role of the ICC as an independent judicial organization. Markedly, Human Rights Watch highlighted that the ICC is the “latest target of his administration’s contempt for the global rule of law.”

In attacking an institution that aims to provide accountability for the perpetrators of human rights abuses, the Trump administration further weakens its global leadership on human rights and the United States’ relationship with international institutions. As the election in the United States unfolds over the next month, the likely posture assumed towards the ICC hangs in the balance.

For further information, please see:

Human Rights Watch – US: Lawsuit Challenges ICC Sanctions – 2 Oct. 2020

The Guardian – Human rights lawyers sue Trump administration for ‘silencing’ them – 1 Oct. 2020

Human Rights Watch – Donald Trump’s Attack on the ICC Shows His Contempt for the Global Rule of Law – 6 July 2020

Just Security – Dissecting the Executive Order on Int’l Criminal Court Sanctions: Scope, Effectiveness, and Tradeoffs – 15 June 2020

IACHR Refers the Case of the Tagaeri and Taromenane Indigenous Peoples of Ecuador to the Inter-American Court of Human Rights

By: Shane Kelly

Impunity Watch Staff Writer

ECUADOR – On September 30, 2020, the Inter-American Commission on Human Rights (IACHR) referred the case of the Tagaeri and Taromenane Indigenous Peoples in Voluntary Isolation in Ecuador to the Inter-American Court of Human Rights following continuous violations of the tribes’ rights.

Yasuní National Park.

The Tagaeri and Taromenane are indigenous peoples of Ecuador who live in voluntary isolation. While the term “voluntary isolation” has taken on a different meaning in the post-COVID world, in this context it refers to the decision of the Tagaeri and Taromenane to live without contact with the modern world, and continue their traditional lifestyle within the limits of the Tagaeri and Taromenane Intangibility Zone (“TTIZ”). The TTIZ was created in 1999 with a presidential decree that permanently protected a section of Yasuní National Park from oil drilling and logging operations. The isolation provided by the TTIZ allows for the two groups to maintain a nomadic, hunter-gatherer existence and preserve the land of their ancestors.

The IACHR analyzed Ecuador’s obligations to the Tagaeri and Taromenane in its Merits Report. The Report detailed several areas where Ecuador had failed to protect the inviolability of the TTIZ. Specifically, Ecuador has failed in its obligation to prevent interference with the TTIZ by third parties. The IACHR found that title granted to the TTIZ is not a full title, which has led to numerous illegal trespasses of loggers. As a result of these trespasses, members of the Tagaeri and Taromenane people suffered violent deaths in three instances in 2003, 2006, and 2013. The IACHR attributes these altercations between loggers and the tribesmen to Ecuador’s shortcomings in preventing third parties from illegally interfering with the TTIZ.

The IACHR further found that Ecuador was responsible for the violation of personal rights and freedoms of two tribal girls were forcibly taken from their communities following the deaths of their parents. Finally, the IACHR observed that Ecuador did not offer any judicial recourse and that their remedies were ineffective, lacking due diligence in criminal investigations.

Therefore, the IACHR concluded that:

the State of Ecuador is responsible for the violation of the rights set forth in Articles 4(1) (right to life), 5(1) (right to personal integrity), 7(1) (right to liberty), 8(1) (right to judicial guarantees), 11 2 (right to honour and dignity), 19 (rights of the child), 21.1 (right to property), 22.1 (right to freedom of movement and residence), 25.1 (right to judicial protection) and 26 (right to health and cultural rights) of the American Convention on Human Rights, in relation to the obligations set out in its Articles 1.1 and 2.

The Report recommends that Ecuador correctly title the TTIZ with appropriate boundaries, provide necessary rehabilitation for the relocated tribal girls, investigate the deaths of tribesmen at the hands of loggers, and provided mechanisms for non-repetition and other adequate remedies.

For further information, please see:

OAS – IACHR Refers Case on Ecuador to the Inter-American Court – 5 Oct. 2020

WRM – Ecuador: The Tagaeri Taromenane Intangible Zone in Yasuní Park – 2 Oct. 2013

ICC Rejects Bemba’s Request to Appeal Denial of Compensation and Damages Claims

By: Shane Kelly

Impunity Watch Staff Writer

CENTRAL AFRICAN REPUBLIC, Africa – On October 1, 2020, the Pre-Trial Chamber II of the International Criminal Court (“ICC”) rejected the request of Jean-Pierre Bemba Gombo to appeal the decision on his claim for compensation and damages following the overturning of his conviction and subsequent release from prison.

Jean-Pierre Bemba Gombo, President and Commander-in-chief of the Mouvement de libération du Congo (Movement for the Liberation of Congo), sitting before the International Criminal Court.

On June 8, 2018, the Appeals Chamber of the ICC acquitted Bemba from charges of war crimes and crimes against humanity. The acquittal reversed Trial Chamber III’s 2016 majority decision finding Bemba guilty under Article 28(a) of the ICC Rome Statute as a person acting as a military commander with control over Mouvement de Libération du Congo (“MLC”) troops.

The MLC were called in by then-president, Ange-Félix Patassé, to subdue an attempted coup. The MLC troops, under Bemba’s leadership, were alleged of the crimes against humanity of murder and rape and the war crimes of murder, rape, and pillaging. The ICC arrested Bemba and took him into custody in 2008, while also freezing his assets and seizing his property. Bemba remained in custody through his conviction in 2016 and served another two years in prison per his eighteen-year sentence.

After his release from prison, Bemba filed a claim for compensation and damages under Article 85 of the Rome Statute. Bemba sought sixty-nine million euros for his time spent in prison, legal costs, and the loss in value of his frozen assets. On May 18, 2020, the Pre-Trial Chamber II denied Bemba’s claim for compensation and damages. The court ruled that Bemba “failed to establish that he had suffered a grave and manifest miscarriage of justice.” Bemba then requested leave to appeal the decision and submitted that the decision was appealable and gave rise to twelve issues that would meet the appeal requirements of Article 82(1)(d).

The court found that the issue was not appealable. Articles 81 and 82 specifically list issues that are subject to appeal, and decisions under Article 85 do not qualify. The court then considered Bemba’s ability to appeal under Rule 155 which allows a party to request leave to appeal any decision “that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.” However, the court observed that Article 82(1)(d) limits such a route only to interlocutory appeals. Because the decision dismissed the claim in part for lack of jurisdiction, the claim fell outside the scope of appealability in the ICC.

Bemba’s request for leave to appeal the denial of his compensation claim was therefore rejected. The court curiously acknowledged in its original decision denying the claim that “10 years is a significant amount of time to spend in custody, likely to result in personal suffering, which would trigger compensation” in many national legal systems.

For further information, please see:

International Criminal Court – Decision on the Request for Leave to Appeal the ‘Decision on Mr Bemba’s Claim for Compensation and Damages’ – 1 Oct. 2020

International Criminal Court – Case Information Sheet – Updated Mar. 2019

Courthouse News – ICC Rejects Compensation Claim by Former Congo VP Bemba – 18 May 2020

Continued Support of Abortion Rights Guatemala’s Human Rights Ombudsman in Trouble Again

By: Elyse Maugeri

Impunity Watch Staff Writer

GUATEMALA CITY, Guatemala – In Guatemala, abortion is only legal if the woman’s life is in danger. However, if the country determines a woman’s abortion was due to her own negligence, she could face up to four years in prison.

Jordan Rodas, Guatemala’s Human Rights Ombudsperson, speaks during a press conference after a meeting with members of the organization “proud of my PNC” (Civil National Police), formed by relatives of police officers.

In August 2018, the Guatemalan Congress adopted a preliminary version of the “Life and Family Protection” bill which would raise the maximum prison sentence for abortion from three to ten years. It would also move to criminalize miscarriages, impose prison sentences for women who have miscarriages, and criminalize the promotion or facilitation of abortion access. As of right now, this bill is still pending in Guatemala’s Congress.

Regarding abortion, Guatemala’s Human Rights Ombudsman, Jordán Rodas, is facing new troubles with his country’s government. On August 20, 2020, the Supreme Court of Justice in Guatemala ruled in favor of a complaint claiming that Rodas has failed to comply with the Court’s ruling in 2017, which called for him to cease his outward support for abortion.

In the 2017 ruling, the Court ordered Rodas to “suspend the presentation and distribution of the manual of ‘Human Rights, Sexual and Reproductive Rights, and Pregnancy care in Girls and Adolescents.’” His overt openness in advocating for abortion, access to abortion, and the promotion for its legalization has called his compliance with the court order into question. The Court has ordered the Prosecutor’s Office to investigate the claims of non-compliance. If Rodas is found guilty, he could face up to three years in prison.

This is not the first time that Rodas’ job has been threatened. Guatemala’s conservative government has largely opposed his stances on abortion and LGBTQI+ rights and has sought to remove him from office since he assumed his role in 2017. In 2019, the Inter-American Court of Human Rights (IACHR) expressed concern regarding criminal proceedings submitted by the Human Rights Commission of the Congress of the Republic of Guatemala against Rodas. The IACHR acknowledged the repeated attempts by the government to remove Rodas from his position; the government claiming “abuse of authority, misuse of public office, and breach of public duties.”

The current investigation and attempt to remove Rodas stems from the Associación la Familia Importa (Family Matters Association). The association, a Guatemalan pro-life group, requested the Supreme Court revisit the 2017 ruling and address whether Rodas’ recent actions violated their ruling. The issue the group pinpointed was Rodas’ calling for the Guatemalan government to adopt recommendations presented by the United Nations Committee on the Rights of the Child regarding abortion access. Rodas asserts, however, that he called for the adoption of recommendations regarding gender-based violence and discrimination issues, not just abortion access.

While Rodas states that his office has suspended issuance of the disputed manual, the Guatemalan Supreme Court held that he has not done enough, and his office must “make an emphatic and categorical statement that it did not support abortion… in defense of the right of the unborn child.”

For further information, please see:

Human Rights Watch – Guatemala: Reject ‘Life and Family Protection’ Law – 31 Aug. 2020

Human Rights Watch – Guatemala: Rights Official at Risk of Criminal Prosecution – 9 Sept. 2020

Amnesty International – Guatemala: Discriminatory law puts at risk the lives and rights of thousands of women, girls and LGBTI people – 4 Sept. 2018

IACHR – IACHR Expresses Its Concern over a New Attempt to Dismiss the Guatemalan Human Rights Ombudsperson – 19 Nov. 2019

Living Life on Zoom: An Interview with Kevin Belbey

By: Nadia Abed & Melissa Berouty 

3Ls at Syracuse University College of Law

As an agent at The Montag Group, Kevin Belbey represents sports broadcasting clients from national networks to local markets. His clients include play-by-play announcers, analysts, radio hosts, writers and reporters. Kevin is a graduate of Syracuse University, where he received his bachelor’s degree in Broadcast Journalism from the S.I. Newhouse School of Public Communications, his Master’s Degree in New Media Management from Newhouse and his Juris Doctor from Syracuse University’s College of Law.

He currently serves on several Syracuse boards including the Syracuse University Law Alumni Association, The Newhouse 44, and the Generation Orange Leadership Council. In March of 2017, Kevin was named to Front Office Sports’ “Rising 25” list of up-and-coming sports business professionals. In September 2019, Kevin was the recipient of the Generation Orange Award by his alma mater, an award recognizing a young alumnus making major contributions in their field of work.  

How did you become interested in the industry you currently work in?

BELBEY: Honestly, it was trial and error. I spent a lot of time researching online, going to different networking events, and seeing guest speakers on campus. Some of the best advice I ever got was “the key to figuring out what you want to do is first figuring out what you do not want to do.” I had so many conversations with media attorneys, broadcasters, trial attorneys, and agents in different fields. With every conversation, I really tried to learn what their day-to-day was like to see if it was something that might interest me long term.

I tried to collect as much knowledge as I could. After doing so, I looked to get first-hand experience. While in law school, I did the Washington D.C. externship program and interned with the FCC. This position led me to intern with CBS in their legal department. These two opportunities in law school were highly formative in leading me towards what I wanted to do.

How has the sports media industry been impacted by the pandemic?

BELBEY: It has been totally rocked. For a while, there had been no sports. During this time, so many of our clients were sitting on their couch watching Tiger King like the rest of us. They want to work, but when there are no games or stories to report on, it becomes difficult.

Obviously, there are more pressing things going on in the world with more cases and tragic deaths. It’s important to keep that in perspective. A lot of our clients are paid per game and have filed for unemployment after going a span of five months with no games. It’s been a whirlwind and something that is evolving daily. I think our industry is truly taking it day by day.

You mentioned the unemployment rate, which continues to soar. Is this something that has impacted your industry hard?

BELBEY: It’s been very tough. In our business, summer is a very healthy time and full of new job opportunities. Outside of baseball, summer is typically an off time for sports. Basically, at this time, networks would be preparing for sports to come back. Right now, there a lot of changes in terms of talent, new shows being developed, and plans being made for the fresh seasons. Typically, the summer is when we are negotiating a large number of contracts. However, it’s been very quiet on the deals front as many of the networks do not want to offer contracts unless there is a guarantee there will be games.

Even for the people who still have their jobs, nearly everyone in our industry has taken pay cuts. On-air talent for FOX Sports, NBC Sports, ESPN, and NFL Network have all taken pay cuts to salaries that they have already agreed to. While they are voluntary, I think everyone is trying to be a team player and do the right thing.

With the world becoming increasingly more virtual, how has contract negotiation and general client interaction been for you?

BELBEY: We are pretty much living our life on Zoom these days. We have company meetings at 10:30 AM every morning where we provide updates on the deals we are working on, people we are talking to, and clients we are prospecting. At this point, I try to do as many Zoom calls as I can to get closer to the feeling of in-person interaction.

It is interesting to see different companies and organizations use different technology. For example, NBC sports are big Microsoft Teams people. We really are doing everything we can to make up for the lack of in-person interaction.

During the time that games were not being held, what was your concern and what were the concerns of your clients?

BELBEY: Networks are hesitant to make commitments right now. For the last five months, a lot of networks have been paying people to essentially not work. Right now, people who would usually have had new contacts by now are left waiting to see how the NCAA and these networks will operate moving forward. From there, we will be left with the question of where talent fits in.

Talent is being put on the back burner until everything else is figured out. This is tough. They have kids and families to support. Aside from the money, talent relies on the benefits particularly the health insurance during the pandemic as everyone else in the country has been. In this cloud of uncertainty, I give a lot of credit to our clients for being patient.

With more games expected to be televised, do you see an increase in the need for broadcasters?

BELBEY: I genuinely hope that is the case. I hope that this industry starts booming and there are more job opportunities. On the other hand, I can see a continued use of remote production. Typically, sports broadcasters are on sight at the stadium. Now, some games are being called out of the studio or even broadcaster’s own homes.

As we remain virtual in our day-to-day operations, we see the same thing happening with broadcasters. If this continues, it will actually lead to a decrease in jobs. If you are calling one college football game on the weekend and need to travel the day before and after, you are calling just one game. However, if you are just calling it out of your basement, maybe you can call two to three games in a weekend. This may lead to less opportunity and allow networks to save money.

What do you see the future of sports media looking like moving forward?

BELBEY: My hope is that we tread water and stay afloat for the next six to eight months. By then, hopefully, we will be discussing a vaccine, fans returning to stadiums, and the Olympics next summer. In the meantime, we as an industry just need to hang tight.

Is the new norm to have broadcasters conduct their work offsite?

BELBEY: The benefit for broadcasters that are on-site is that there are one to two other people in the radio booth with them. This allows them to practice social distancing. Before our broadcasters go back to work, they want to ensure that there is a health and safety plan. For our broadcasters on-site, they need to be provided with information like how they will get there and where will they stay. This then adds another question of whether the overnight amenities are safe and what is the health and safety plan inside the arena. Thankfully, overall, there are fewer people inside stadiums, so you are able to keep your distance.

Are these safety considerations accounted for contractually? If not, are these considerations that will come into play during contract negotiation moving forward?

BELBEY: I think networks have an inherent responsibility to offer broadcasters a safe work environment. However, this is definitely something that could change moving forward. One thing that we have seen in contracts more than ever is the phrase force majeure.  Frankly, this is something we always reviewed, but never really expected to carry this type of weight. Now, we are reading these clauses twenty times over given their weight.

Do you have any advice for law students trying to network during this time?

BELBEY: In law school and college, I would exchange emails and get on the phone with people in various industries. One thing I always knew was that I was not that memorable to them. There are so many emails and phone calls that are happening all day long. This makes it difficult for people to remember you. The best way to network is to grab lunch or a coffee. Obviously, you cannot do that right now, but what you can do is ask someone to grab coffee over Zoom. Honestly, if someone asked me to meet over Zoom six months ago, I would have thought it was weird. But today, this is the way we conduct our business. While there might be people that say no, I do believe face-to-face interactions are more memorable. I think this is a way you can stand out. This is what I would do.

At the end of the day, the vast majority of jobs are based on who you know, not just applying online. This is how I got my job. So, I would encourage law students to put themselves out there.

This interview has been condensed and edited for length and clarity.