A Strange Transition

By: Kanalya Arivalagan 

2L at Syracuse University College of Law 

It was such a strange transition, going from in-person classes to the sudden lockdown on March 16, 2020.

One would think that the frenzy from the rapid sequence of events throughout the world, the nation, and our home would also be reflected in our classes at the law school. However, most of my professors chose to go on as if everything was normal. So, I put myself through the motions as if things were normal such as completing my readings, taking notes, reviewing notes, attending office hours, and meeting with study groups. But things were most definitely not normal.

The abnormality was reflected in my summer internship where I worked as a legal intern at a district attorney’s office in Texas. The impact on the livelihood of the people with awaiting cases, prosecutors, judges, and everyone else in between was immense and obvious. The court hearings were either postponed or held on Zoom. I listened in on juvenile cases where the court had to decide whether to allow the child back with the father who is a drug abuser or let him stay in a facility where being exposed to the virus was a possibility.

Though I had my own space most of the time, I still had to interact with others to complete projects and coordinate timings for the hearings. Soon, when the cases started rising exponentially in Texas and in turn, my anxiety started spiking, I began to wear a mask even in the office as a precaution, especially due to the daily news on the many ways that COVID-19 could damage the lungs.

The cases in the county and my anxiety were both worsening, so much so that I ended my internship a month early after letting them know that I would like to complete my assignments from my home in California. The amount lessened significantly because of my decreased access to confidential files in hard copy. So, I had much more time to explore what I can do to fill in the time.

While I completed the tasks from home, I also learned how to sew holes in my dresses, cook more than just ramen and pasta, kickbox for cardio, meditate for more than just two minutes, and even journal to unravel my emotions and monotonous days.

Quarantining provided me the discomfort of having to deal with just myself, but also the opportunity to truly see the world for what it is, the fragility of life, and the possibility of being whoever I wanted to be if I put just a little bit of effort. Though everything is unprecedented and our lives after COVID-19 will look different from the one we had before March, it will all be okay because we’re all still in this strange transition together.

Charges Amended in Al Hassan Case

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On April 23, 2020, Pre-Trial Chamber I of the International Criminal Court (“ICC”) released a confidential decision amending the charges against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mohamed (Al Hassan). A public redacted version of the decision is not yet available.

Al Hassan looking on in Pre-Trial proceedings. Photo Courtesy of the International Criminal Court.

This decision partially granted the Prosecutor’s request to modify the charges, filed on January 31, 2020.  Al Hassan’s charges of war crimes and crimes against humanity will now be predicated on additional facts. 

In the Prosecutor’s heavily redacted public written submission, she indicated that new witnesses have become available to testify, and their testimony is substantial to the case.   

Modification to charges that have already been confirmed generally occur when essential evidence becomes available to the investigating Prosecutor which was not known or available pre-confirmation.  According to article 61(9) of the Rome Statute, “after the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges.”  While the Prosecutor may not freely conduct investigations post-confirmation, this article has been interpreted by other Pre-Trial Chambers to apply only if it is necessary to establish the truth, or if special circumstances exist.  The Prosecutor must also show that this collection of new evidence will not prejudice the Defense.

In areas where the risk of retaliation against a witness is high, such as in Timbuktu, Mali, identifying witnesses and ensuring their safety is a challenge.  Because of this difficulty, there has been significant delay in gathering witnesses.  In the Al Hassan case, the Prosecutor has sought to avoid unnecessarily exposing individuals to potential risk by contacting them only when absolutely necessary.   Ultimately, volunteer witnesses who would not provide duplicitous evidence and who were in favorable security circumstances were selected to testify. 

With the lengthy Pre-Trial Phase complete, the case will proceed to Trial.  Al Hassan is accused of war crimes and crimes and crimes against humanity allegedly committed in Timbuktu, Mali as member of Ansar Eddine/Al Qaeda between 2012 and 2013.  The opening of the trial is scheduled for July 14, 2020, With the Prosecution’s presentation of evidence commencing on August 25, 2020.

For further information, please see:

International Criminal Court – Al Hassan Case: ICC Pre-Trial Chamber I Accepts Amendments to the Charges – 23 Apr. 2020

International Criminal Court – Al Hassan Case Information Sheet – 4 Feb. 2020

International Criminal Court – ICC Pre-Trial Chamber I Confirms Charges – 30 Sept. 2019

Peru Found Guilty of Torturing Transgender Woman in Custody

By: Elizabeth Wright

Impunity Watch Staff Writer

CASA GRANDE, Peru — On April 6, 2020, the Inter-American Court of Human Rights published a decision which found the country of Peru guilty of torture and rape of a transgender woman while she was in police custody.

Azul Rojas Marin. Photo Courtesy of BBC.

Azul Rojas Marin was arrested in February 2008, for what has now been determined to be an arbitrary and discriminatory purpose. While in police custody her legal team reports that, Azul was stripped naked, beaten, and brutally raped with a police baton by three officers.

Following the incident, Azul filed an initial criminal complaint against the officers involved, but it was dismissed by the state. After hearing about her case, several human rights organizations joined to help and brought her case to the Inter-American Court of Human Rights. The Court ultimately found for Azul. The Court ordered Peruvian government to pay Azul damages and provide her with psychological treatment. Furthermore, the Court ordered Peru to track data regarding violence of those in the LGBT+ community, and to create protocol for investigating such violence.

Evidence shows that LGBT+ individuals experience much higher rates of violence than others. This is the first time the Inter-American Court has made a ruling on torture of any person identifying as LGBT+. Thus, many feel the verdict legal validation for transgender and LGBT+ individuals.

For further information, please see:

NY Daily News – Top Human Rights Court Finds Peru Responsible for Raping, Torturing Transgender Woman – 8 Apr. 2020

PinkNews – Peru is ‘responsible’ for Rape and Torture of Trans Woman While in Custody, Top Human Rights Court Rules – 7 Apr. 2020

BBC NEWS – Azul Rojas Marin: Peru Found Responsible for Torture of LGBT Person – 7 April 2020

Reuters – Top Americas Court Finds Peru Responsible for Torture of Trans Woman – 6 Apr. 2020

ICC Prosecutor Files Response to Ntaganda Appeal

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On April 14, 2020, the International Criminal Court (“ICC”) released the public redacted version of the Prosecutor’s response to Appellant’s brief in the case of The Prosecutor v. Bosco Ntaganda.  ICC Prosecutor Fatou Bensouda presented the appellee’s brief.

Congolese warlord Bosco Ntaganda stands in the ICC courtroom during closing statements of his trial. Photo Courtesy of Reuters.

The Prosecutor’s brief addresses each of Ntaganda’s twelve grounds of appeal in turn.  Whereas Ntaganda attempted to downplay his involvement in crimes of sexual violence and slavery in grounds one through four, the Prosecutor asserted that Ntaganda played an essential role in the commission of these crimes throughout the period of the charges.  Furthermore, the Prosecutor asserted that Ntaganda himself killed and raped, participated in recruitment drives, and used children under 15 years of age as his personal escorts.  The Prosecutor maintained that the Trial Chamber assessed these factors correctly when arriving at Ntaganda’s 30-year prison sentence.  

In addressing Ntaganda’s argument in grounds seven through twelve, that the Trial Chamber failed to properly assess alleged mitigating factors, the Prosecutor asserts that the Ntaganda simply disagrees with the Court’s fair evaluation and rejection of these circumstances.  The Prosecutor stated that the Court correctly considered Ntaganda’s alleged acts of protecting civilians from attacks, saving the lives of enemy soldiers, and contributing to the reconciliation with the Lendu community, among others, however they did not carry enough weight to impact his sentence.  This difference of opinion does not indicate a failure to consider the circumstances properly.

As for grounds five and six, that the Court erred in applying some aggravating circumstances, the Prosecutor argued that Ntaganda misapplied the relevant provisions of the Rome Statute.  While Ntaganda asserted that the Court considered an improper aggravating circumstance in ground 5, the Prosecutor stated that the elements of the uncharged crime allow for it to be considered as an aggravating circumstance.  In ground 6, which Ntaganda accused the court of “double-counting” some factors the Prosecutor argued that Ntaganda failed to understand the “two-step” process the Court uses for sentencing established by article 78(3).

While grounds one through four and seven through twelve are likely based on matters which were at the discretion of the trial court, and therefore likely to be upheld on appeal, the arguments in grounds five and six present reasonably more nuanced legal issues. Particularly interesting is the Court’s “two-step” process for sentencing, in which the individual sentences for each crime is calculated before the appropriate joint sentence is determined.  While sentences are calculated two times using this process, aggravating factors are not “double-counted,” for each sentence.

No scheduling order has been released for the Appeals Hearing of Ntaganda.  Ntaganda also stated to be appealing the judgement of conviction in his notice of appeal, however no brief has been filed yet.

For further information, please see:

International Criminal Court – Prosecution Response to “Sentencing Appeal Brief” – 14 Apr. 2020

International Criminal Court – Case Information Sheet: The Prosecutor v. Bosco Ntaganda – 7 Nov. 2019