ICC Authorizes Investigation into Afghanistan

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On March 5, 2020, the Appeals Chamber of the International Criminal Court (“ICC”) authorized the Prosecutor to begin investigations into alleged war crimes and crimes against humanity committed in Afghanistan dating back to May 1, 2003.  All sides of the armed conflict may now be subject to investigation.

A crater caused by a car bombing in Kabul, Afghanistan. The Taliban claimed responsibility for the attack. Photo Courtesy of the New York Times.

This judgement amended a previous decision of Pre-Trial Chamber II, which had unanimously rejected the Prosecutor’s previous request for authorization to conduct an investigation on April 12, 2019.  Pre-Trial Chamber II determined that an investigation into the Situation in Afghanistan would not serve the interests of justice, and successful investigation and prosecution would be unlikely.  In the resulting appeal of this decision, the Appeals Chamber found that the Pre-Trial Chamber erred in considering the “interests of justice” factor.  According to the Appeals Chamber, the Pre-Trial Chamber should have addressed only whether there was a reasonable factual basis for the Prosecutor to proceed with an investigation. Additionally, the Appeals Chamber found that the Prosecutor had indeed met that burden during the Pre-Trial proceedings.

This decision has drawn criticism from the United States government, who may now be the subject of prosecution in the Court.  The United States is not a state party to the ICC and has never been since the Court’s inception. While speaking with reporters in Washington, U.S. Secretary of State Mike Pompeo called the ruling a “truly breathtaking action by an unaccountable, political institution masquerading as a legal body.”  Last year, the United States government revoked the visa of ICC chief prosecutor Fatou Bensouda after she indicated her intentions to pursue the case. Pompeo previously stated the United States would revoke the visas of any staff involved with prosecuting war crimes in Israel, as well.

The Appeals Chamber decision has furthered the Court’s goal of becoming a truly independent body, and holding any nation accountable for its actions, however upsetting the United States may cause allied nations to distance itself from the Court.  While other United States administrations have been cautiously neutral in supporting the ICC, the Trump administration has taken a firm stance against the Court and its legitimacy. The absence of any significant enforcement mechanism in the Court leaves the ICC only as powerful as the member nations deem it to be.  If the United States chooses to not comply with ICC demands, it may frustrate prosecution attempts with little recourse, and delegitimize the Court.

For further information, please see:

International Criminal Court – Appeals Chamber Decision on the Situation in Afghanistan – 5 Mar. 2020

International Criminal Court – ICC Appeals Chamber Authorises the Opening of an Investigation – 5 Mar. 2020

The New York Times – I.C.C. Allows Afghanistan War Crimes Inquiry to Proceed, Angering U.S. – 5 Mar. 2019

International Criminal Court – ICC Judges Reject Opening of an Investigation Regarding Afghanistan Situation – 12 Apr. 2019

African Commission Seeks Justice in South Sudan Despite Non-Cooperation by State Government

By: Eronmwon Joyce Irogue

Impunity Watch Staff Writer

JUBA, South Sudan – The African Commission on Human and Peoples’ Rights (“ACHPR”) expressed its fears concerning the “non-implementation of the Revitalized Peace Agreement on the Resolution of Conflict in South Sudan of September 2018” in a press statement released in February 2020. The war crimes court of South Sudan was established through the 2015 and 2018 peace deals with the goal of bringing violators to justice and providing retribution for victims of the atrocities committed during the South Sudan Civil War. This court is now threatened by the South Sudan government’s use of “US-based lobbyists” to prevent the court’s creation.  

South Sudanese soldier walks past group of women. Photo Courtesy of Reuters/Siegfried Modola.

Many human rights violations have occurred in South Sudan, but they peaked in 2013 during the armed conflict between President Salva Kirr Mayardit’s forces and opposition forces led by former Vice President Riek Machar. In 2014, South Sudanese Civil Organizations wrote an open letter to ACHPR to address the incessant violations of human rights and humanitarian law in Sudan, urging ACHPR to issue a resolution and establish a Commission of Inquiry.

In 2018, the Commissioner Rapporteur on the Human Rights Situation in South Sudan sent a Letter of Concern to the President of South Sudan. The letter highlighted the increase in violations of women’s right to security and cited the more than 150 women who have been attacked and raped in the Northern region of South Sudan between November and December 2018. This demonstrates the continuing high rate of human rights violations in South Sudan despite the civil war having ended.

The ACHPR is substantially limited in South Sudan because it is the only African Union country which does not permit the ACHPR to hear cases. Due to this arrangement, human rights violations, especially those perpetrated against women, will continue unless the South Sudanese government stops delaying the creation of the war crimes court and recognizes the importance of the brokered peace deal. This will be the first step in the right direction for South Sudan and Africa.

For further information, please see:

African Commission on Human and Peoples’ Rights – Press Statement on the Human and Peoples’ Rights Situation in South Sudan – 21 Feb. 2020

Human Rights Watch – South Sudan Cynical Bid to Block War Crimes Court – 30 Apr. 2019

African Commission on Human and Peoples’ Rights – Letter of Concern to The Republic of South Sudan – 28 Dec. 2018

Human Rights Watch – Open letter To The Members of The African Commission on Human and Peoples’ Rights From South Sudanese Civil Society Organizations – 7 Mar. 2014

Open Society Justice Initiative – African Commission on Human and Peoples’ Rights – June 2013

Russia’s Criminal Investigation Procedures Don’t Comply with Convention on Human Rights

By: Jacob Tyson

Impunity Watch Staff Writer

STRASBOURG, France – On February 4, 2020, the European Court of Human Rights (“ECHR”) found the Russian government responsible for 29 cases of torture and inhuman or degrading treatment by police officers, violations of Article 3 and Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and awarded 835,000 euros in pecuniary damages to the victims. The treatment the victims received included electric shock, strangulation, needles being placed under fingernails, rape, and threats of torture toward family members.

Man is arrested by Russian law enforcement. Photo Courtesy of The Moscow Times/AP.

The case revolved around whether the complaints were credible and admissible even though they relied on faulty investigations. The Court opined that medical examinations, especially in cases of ill-treatment toward prisoners and detainees, are an essential safeguard of human life and the justice process. However, without this information, human rights investigations can be inadmissible in court. Here, multiple applicants were not examined until weeks after their complaints of torture. Upon examination, the forensic experts were not provided with enough information which made it impracticable for the experts to create an accurate picture of what happened to these prisoners. The experts, instead, relied on the pre-investigation inquiry by the Russian authorities.

According to the Court, this was an inadequate effort by the Russian government. The Court held that the mere carrying out of a pre-investigation inquiry under the Code of Criminal Procedure of the Russian Federation is insufficient to comply with Article 3 of the Convention. “It is incumbent on the authorities to institute criminal proceedings and conduct a proper criminal investigation in which a full range of investigative measures are carried out,” the Court wrote.

This could have a significant impact on criminal procedure in Russia, as well as other Council of Europe member states, to ensure more thorough and accurate investigations into police brutality and inhumane prison practices. However, since 2015, Russian President, Vladimir Putin, signed a bill allowing the Constitutional Court to circumvent rulings of the ECHR and any other rulings by international human rights bodies in an effort to protect Russian legal sovereignty. It is unlikely this ruling will affect the way Russia conducts its investigations in the future or in its 15,000 currently pending ECHR applications.

For further information, please see:

European Court of Human Rights – Applications nos. 47821/09 against Russia – 4 Feb. 2020

МБХ – ЕСПЧ Присудил Россиянам 1 Млн Евро за Незаконные Обыски и Пытки в Полиции – 4 Feb. 2020

The Moscow Times – Russia Ordered to Pay $1M to Police Brutality Victims – 5 Feb. 2020

ECHR Rules Spain Did Not Breach the Convention in Returning Migrants to Morocco

By: Nadia Abed

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — On February 13, 2020, the European Court of Human Rights (“ECHR”) ruled that Spain did not breach the European Convention on Human Rights (“the Convention”) in returning migrants to Morocco for attempting to cross the fences onto European Union territory in the case of N.D. and N.T. v. Spain.

Police office scales fence climbed by migrants at Melilla border. Photo Courtesy of AFP.

On August 13, 2014, hundreds of migrants attempted to storm their way onto European Union territory by scaling fences to reach the city of Melilla, a Spanish enclave surrounded by Moroccan territory. Moroccan police were able to prevent about 500 migrants from scaling the outer fence, but around a hundred migrants succeeded, with 75 migrants reaching the top of the fence and a few landing on the other side on Spanish soil. Those who reached the soil were met by members of the Guardia Civil, the Spanish law enforcement, while others remained at the top of the fence.

Two individuals, N.D., a national of Mali, and N.T., a national of Côte d’Ivoire (“the applicants”), were of the few that remained at the top of the fence. After a few hours, the two climbed down and were apprehended by the Guardia Civil who “reportedly handcuffed them, took them back to Morocco and handed them over to the Moroccan authorities.”

The applicants lodged applications with the ECHR on February 12, 2015 alleging that there had been a violation of Protocol No. 4 Article 4 which prohibits collective expulsion of aliens and Article 13 which secures the right to an effective remedy. Through both Articles, the applicants claim that they were forced back to Morocco with “no chance to explain their circumstances, no chance to request asylum, and no chance to appeal their expulsion.”

On October 2, 2017, in its Chamber judgment, the Court held that there was a violation of Article 4 of Protocol No. 4 and a violation of Article 13 in conjunction with Article 4 of Protocol No. 4. On December 14, 2017, the Spanish Government requested the case be referred to the Grand Chamber under Article 43 of the Convention. On January 29, 2018 the Grand Chamber accepted and a hearing was held on September 26, 2018.

The Court reasoned that the applicants had attempted to enter Spanish territory in an unauthorized manner by taking advantage of a large crowd. In accordance with the Convention, States are required to “make available genuine and effective access to means of legal entry [and] should allow all persons who faced persecution to submit an application for protection.” As a result of not using the proper channels, States can refuse entry to their territories to aliens and asylum-seekers who fail, without convincing reason, to follow such requirements.

Regarding the applicants Article 4 of Protocol No. 4 claim, the Court noted that Spanish law had several possible means available to those seeking admission to their territory, such as applications for visas or international protection, therefore the State had provided genuine and effective access to its territory. Applicants’ did not allege they tried to enter Spanish territory by any legal means. The court concluded that the applicants had “placed themselves in jeopardy by participating in the storming of the border fences [and their expulsion was a] consequence of their own conduct.”

Regarding the applicants’ Article 13 claim taken in conjunction with Article 4 of Protocol No. 4, the Court explains that “the lack of an [individualized] procedure for [the applicants’] procedure for their removal had been the consequence of the applicants’ own conduct in placing themselves in an unlawful situation by crossing the Melilla border protection structures… at an [unauthorized] location.” Further, the Court concluded that there had not been a violation of Article 4 of Protocol No. 4 or Article 13 in conjunction with Article 4 of Protocol No. 4.

European Court of Human Rights – Forthcoming Grand Chamber judgment in a case concerning the immediate return of two migrants who tried to enter Spain by climbing the fences of the Melilla enclave – 6 Feb. 2020

European Court of Human Rights – Spain did not breach the Convention in returning migrants to Morocco who had attempted to cross the fences of the Melilla enclave – 12 Feb. 2020

European Court of Human Rights – Case of N.D. and N.T. v. Spain – 12 Feb. 2020

The Local Spain – Spain cleared by European Court of Human Rights over Removal of migrants at border fence – 13 Feb. 2020

European Court of Human Rights Hears Syrian National’s Case for Family Reunification

By: Melissa Berouty

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — On March 18, 2020, the Grand Chamber of the European Court of Human Rights (“ECHR”) will hear the case of M.A. v. Denmark, regarding the denial of family reunification. According to the Council of Europe Commissioner of Human Rights (“the Commissioner”), “[f]amily reunification procedures allow foreign nationals residing in Council of Europe member states to request permission to bring members of their family to join them, and to re-establish family life on the territory of their member state of residence.” The Commissioner has stated that family separation of individuals with international protection has been the root of “depression, anxiety, and feelings of guilt for leaving family members behind in dangerous situations.” These subsequent effects lead to difficulty in integration, including breaking through potential language barriers. Commonly, the integration process does not fully commence until the family reunification process is complete.

In January 2015, M.A., the applicant and a Syrian national, entered into Denmark seeking asylum. M.A. was granted temporary protection for a one-year period, under Section 7, subsection 3 of the Aliens Act, which offers protection for “individuals who face capital punishment, torture or inhumane or degrading treatment or punishment due to severe instability and indiscriminate violence against civilians in their home country.” Since then, M.A.’s residence permit has been extended in one-year increments.

In November 2015, M.A. requested to be reunited with his wife of twenty-five years, who was residing in Syria. Typically, under Danish law, an individual with temporary protection under section 7, subsection 3 of the Aliens Act must have a residence permit for more than three years for family reunification. Given this, in September 2016, M.A.’s request was denied by the Immigration Appeals Board, given the standard set by Danish law and a lack of “special reasons” to justify family reunification before the three-year threshold.

Following the denial of his application in early 2017, M.A. filed a complaint arguing that Denmark’s refusal of a family reunion was a direct violation of his rights under the European Convention on Human Rights (“the Convention”). M.A. argues that Danish law is discriminatory given that if he had been offered a “higher degree of protection,” he would be eligible for a family reunion within one year rather than three. In May 2017, the High Court of Eastern Denmark ruled against M.A.

On appeal, the Supreme Court upheld the High Court of Eastern Denmark’s decision. Here, the Supreme Court found no violation of the Convention stating, “the difference in treatment in the right to a family reunion had been justified by the fact that some groups of individuals had required greater protection.” On January 30, 2018, M.A.’s case was brought before the ECHR.

Here, M.A. again claims a violation of his rights under the Convention, specifically prohibition of discrimination under Article 14 in conjunction with the right to a family life under Article 8. On September 7, 2018, the Danish government was given notice, pursuant to Rule 54 of the local Court Rules, that “an application against the State is pending before the Court.” On November 19, 2019, jurisdiction was relinquished to the Grand Chamber of the ECHR.

According to the Commissioner, Denmark’s family reunification laws and policies have been in discussion for nearly fifteen years. In January 2016, the Commissioner’s predecessor contacted the Danish Minister expressing concerns over the waiting periods set forth in section 7, subsection 3 of the Aliens Act, particularly in its compatibility with Article 8 of the Convention. On January 31, 2019, the Commissioner expressed her recommendation to the Danish Government that “[w]aiting periods of over one year are inappropriate for refugees and for their family members.” Further, the Commissioner noted that Syrian individuals are being disproportionately affected, following the 1951 Refugee Convention. On March 18, 2020, the Grand Chamber hearing of M.A. v. Denmark will commence to decide on this issue.

For further information, please see:

ECHR – M.A. v. Denmark (relinquishment) – November 2019

ECHR – Relinquishment in favour of the Grand Chamber M.A. v. Denmark – 11 Nov. 2019

Council of Europe – Third party Intervention by the Council of Europe Commissioner of Human Rights – 31 Jan. 2019