ICC Prosecutor Must Re-examine Attack After Appeal Chamber’s Decision

By: Madison Kenyon 

Impunity Watch Staff Writer 

MORONI, Comoros — On September 2, 2019, the Appeals Chamber of the International Criminal Court (ICC) rejected the prosecutor’s appeal against the decision of Pre-Trial Chamber I on the Application for Judicial Review by the Government of the Union of the Comoros of November 12, 2018. This was a majority decision, however there were two dissenting judges.

Judge Solomy Balungi Bossa presiding over the Appeals Chamber of the International Criminal Court on September 2, 2019. Photo Courtesy of the ICC.

This issue arose from an attack of a vessel ship, known as the Mavi Marmara, that occurred on May 31, 2010 by the Israeli Defense Forces. This ship contained 10,000 tons of humanitarian aid that a group of pro-Palestinian activists were bringing to Gaza. During this attack, nine people were killed and about 50 others injured.

In May 2013, the Union of Comoros, a party of the Rome Statute, sent a referral to the ICC’s Office of the Prosecutor to investigate this attack. However, after a preliminary examination, on November 6, 2014 the prosecutor issued her decision not to investigate any further. She stated that although the acts committed constituted war crimes, which the ICC has jurisdiction over, the acts did not have “sufficient gravity to justify further action by the ICC.” In order for the prosecutor to open an investigation, it is required by the Rome Statute that she conclude that the alleged crimes are of sufficient gravity. Thus, she stated, “…I have to be guided by the Rome Statute, in accordance with which, the ICC shall prioritize war crimes committed on a large scale or pursuant to a plan or policy.”

Although it is the prosecutor’s decision to investigate further into a case or not, on July 16, 2015, Pre-Trial Chamber I of the ICC requested the prosecutor to reconsider the decision not to investigate. Two years later though, on November 29, 2017, the prosecutor reiterated her earlier decision, stating she will not investigate further. Yet, on November 15, 2018, the Pre-Trial Chamber I went one step further, and directed the prosecutor to reconsider her decision.

This decision to direct the prosecutor is what led to the prosecutor’s appeal and this decision by the Appeals Chamber. Due to the September decision by the Appeals Chamber, the prosecutor must now once again reconsider whether she will investigate further into this attack by the Israeli Defense Forces. The Appeals Chamber however, made sure to clarify that this decision does not take away the prosecutor’s power to ultimately decide whether or not to initiate an investigation.

Despite this clarification, this decision by the Appeals Chamber leads one to question whether this is truly the case. It will be interesting to see how the court responds if the prosecutor decides once again not to investigate further.

For further information, please see: 

International Criminal Court – Situation of the Registered Vessels of Comoros, Greece and Cambodia: ICC Appeals Chamber Rejects the Prosecutor’s Appeal – 2 Sept. 2019 

International Criminal Court – Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on Concluding the Preliminary Examination of the Situation Referred by the Union of Comoros: “Rome Statute Legal Requirements Have Not Been Met” – 6 Nov. 2014 

The Guardian – Israeli Attack on Gaza Flotilla Sparks International Outrage – 31 May 2010

 

Russian Film Producer’s Freedom of Expression Rights Violated

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

MOSCOW, Russia — On September 10, 2019, the European Court of Human Rights (ECHR) held that the refusal to grant a film reproduction license is a violation of Article 10 of the European Convention of Human Rights which concerns freedom of expression. 

Russian national, Sergey Pryanishnikov, is a producer who owns the copyright for over 1,500 erotic films. After receiving approval for public distribution of his films, Pryanishnikov’s application for a film reproduction license was rejected by the Russian Ministry of the Press in 2003 because he was deemed to be “involved in illegal production, advertising and distribution of erotic and pornographic material and films.”

In 2004, Pryanishnikov contested the rejection before the Commercial Court of Moscow, but the court upheld the decision. The court reasoned that while Pryanishnikov had never been officially charged with the distribution of pornography and had only been interrogated by the police as a witness, since no determination had yet been made in the criminal proceedings, “it could not be ruled out that he was involved in the illegal production of pornographic films.”

Later in 2004, the Appeal Court and Court of Cassation upheld the judgment of the lower courts with both courts using similar reasoning to make their decision. In 2005, relying on Article 10, Pryanishnikov filed a complaint with the ECHR.

The Court concluded that the refusal to issue a film reproduction license interfered with Pryanishnikov’s freedom of expression. The Court conceded that protecting morals and the rights of others, in particular shielding children from access to pornographic material, were justifiable goals. However, when determining whether the interference was also “necessary in a democratic society”, the Court noted that the lower court decisions had been based on assumptions rather than reasoned findings of fact. More specifically, the Russian courts did not rely on any document from the criminal case file indicating that Pryanishnikov was suspected of that offense. As a matter of fact, they had explicitly mentioned that he had been involved in the investigation as a witness rather than a suspect.

Additionally, the Court stated that the lower courts did not weigh either the impact their decision would have on Pryanishnikov’s ability to distribute all the films for which he had distribution certificates or his freedom of expression in general. In particular, they failed to perform a balancing test between the right to freedom of expression and the need to protect public morals and the rights of others, resulting in an unjustifiable restriction of freedom of expression. 

This decision is significant because it overturned four consecutive domestic judgments suppressing freedom of expression in Russia. Ideally, following this ECHR decision, citizens’ rights to freedom of expression in other member states will be respected more. By applying the suggested balancing test, future freedom of expression decisions might be more uniform and proportionally reasoned to reach sound judgments. 

For further information, please see:

European Court of Human Rights – Film Reproduction License Refused Because of Mere Suspicions: Violation of the Right to Freedom of Expression – 10 Sept. 2019

BAILII – Case of Pryanishnikov v. Russia – 10 Sept. 2019

African Court Orders Return of Mau Forest Land to Ogiek People

By: Jordan Broadbent

Impunity Watch Staff Writer

NAIROBI, Kenya — On July 4, 2019, the Kenyan government and the Ogiek people submitted arguments to the African Court on Human and Peoples’ Rights for the compensation paid to the Ogiek people for violations of their rights and interference with their land.

Ogiek women in Kenya. Photo Courtesy of Minority Rights Group International.

On May 26, 2017, the African Court on Human and Peoples’ Rights ordered the Kenyan Government to return ownership of the Mau Forest lands back to the Ogiek people. The Ogiek are an indigenous tribe that have inhabited roughly 500 square miles of the Mau Forest in Kenya for centuries. The Ogiek people consider the land their ancestral ground, and have battled for centuries with colonizers, and now the Kenyan government, to maintain control of their homeland.

In recent years, the Kenyan government has attempted to evict the Ogiek people and remove them from their land. Under the guise of environmental protection, the Forest Act brought the control, use, and regulation of forest and forest areas under the control of the central government. The Kenyan government has used a two-pronged approach in order to remove the Ogiek people from this land. Using the Forest Act as support, the government first claimed that the Ogiek actually moved from the land, constituting a forfeiture of their land, ancestral or not. The second argument laid in an environmental issue, that the area is a water catchment zone and the Act gives the government power to take control of the land to protect the water catchments. The Kenyan government issued a 30-day eviction notice and allowed logging companies into the Mau Forest.

The Ogiek people brought the Kenyan government before the African Court on Human and Peoples’ Rights after a 15-year fight through the Kenyan Courts with the concern that the government’s actions endangered their community and culture. The Ogiek advocated for the Court to halt the eviction, recognize their legal rights to the land, and order the government to compensate the Ogiek people. The Provisional order declared the Kenyan Government to immediately reinstate all land transaction restrictions in the Mau Forest and report back to the Court in 15 days. On May 26, 2017 the Court ruled that the Kenyan government violated 7 sections of the African Charter on Human and Peoples’ Right and that the land was ancestral and belonged to the Ogiek, giving the indigenous people a historic win.

The victory signifies an important case for indigenous people in Africa. The Court overturned a government’s actions and ordered compensation to be paid to a group of the 20,000 individuals that make up the Ogiek. Ogiek were at risk of becoming “conservation refugees,” a term used for indigenous people who are forced off their land via conservation methods. This case marks a turning point to fight for the rights of indigenous groups to remain on their land.

In Kenya, the wait remains for the government to take tangible steps in restoring the Ogiek to their land.

For further information, please see:

African Court – African Court of Human and Peoples’ Rights Order 006/2012 – 4 July 2019

Minority Rights Group International – Two Years on, Kenya has yet to implement judgement in Ogiek case – 5 June 2019

Ogiek.org – Ogiek People – 2004

 

 

 

 

 

Bosco Ntaganda Convicted: A Long-Awaited Victory by the ICC

By: Madison Kenyon

Impunity Watch Staff Writer

KINSHASA, Congo — On July 8, 2019, the International Criminal Court (ICC) found Bosco Ntaganda guilty. The Court convicted him of 13 counts of war crimes, including: murder and attempted murder, intentionally directing attacks against civilians, rape, sexual slavery, ordering the displacement of the civilian population, conscripting and enlisting children under the age of 15 years into an armed group and using them to participate actively in hostilities, intentionally directing attacks against protected objects, and destroying the adversary’s property; and five counts of crimes against humanity, including: murder and attempted murder, rape, sexual slavery, persecution, and forcible transfer and deportation. Ntaganda is only the fourth person to be convicted by the ICC and the first person to be convicted of sexual slavery.

Bosco Ntaganda in the International Criminal Court. Photo Courtesy of AP.

Ntaganda’s crimes date back to before 2003. These crimes specifically arise from his involvement with the Patriotic Forces for the Liberation of Congo (FPLC), of which he was the Deputy Chief of Staff and commander of operations. Despite the ICC’s prosecutor beginning her investigation on June 21, 2004, an arrest warrant was not issued until August 22, 2006. The first warrant charged Ntaganda with the war crime of recruiting and using child soldiers. The ICC did not issue a second arrest warrant until July 13, 2012, which was amended to include four additional counts of war crimes and three additional counts of crimes against humanity. The prosecutor later added more crimes.

Even with the addition of these charges to his arrest warrant, the investigative organization, Human Rights Watch, argued that additional charges should have been added for the alleged crimes he committed after 2003. Specifically, Human Rights Watch argued that he should be charged for his actions while he was military chief of staff of the National Congress for the Defense of the People, a military group located in the North Kivu Province in eastern Congo. While in this position, Human Rights Watch documented Ntaganda’s involvement in ethnic massacres, killings, rape, torture, and recruitment of child soldiers. Despite this documentation and the urge by Human Rights Watch, the court did not include these crimes.

In 2012, Ntaganda broke away from the National Congress for the Defense of the People and formed his own coalition, the March 23 Movement (also referred to as M23). During this time, he continued to live freely and visibly in front of the Congolese government. President Joseph Kabila refused to arrest him because he did not want to disrupt the peace of DR Congo. Thus, Ntaganda would have remained free if he had not turned himself over to the ICC on March 22, 2013. He surrendered because he feared the turmoil currently occurring within M23.

After the ICC brought Ntaganda into custody, the judicial process took six years to reach the July verdict due to extensive investigations by both parties, resulting in approximately 69,000 pages worth of evidence. The trial, which took place over the course of 248 hearings, included testimony from 80 witnesses and experts called by the prosecutor, and 19 witnesses called by the defense team. The court also authorized 2,129 victims to partake in the trial.

Although many are celebrating this judgment, this conviction sheds light on some flaws of the ICC. One flaw in particular is highlighted by the view that this conviction may have never occurred if Ntaganda did not surrender himself to the ICC. This situation could prompt the ICC and the international community to consider another means to bring war criminals within its jurisdiction. Solutions to these issues may expedite a path to justice as the court cannot start a trial without the defendant present.

For further information, please see: 

International Criminal Court – Case Information Sheet: Situation in the Democratic Republic of Congo – 8 July 2019 

BBC – DR Congo’s Bosco Ntaganda Convicted of War Crimes by ICC – 8 July 2019 

BBC – Bosco Ntaganda: The Congolese ‘Terminator’ – 8 July 2019

Human Rights Watch – Q&A: Bosco Ntaganda, DR Congo, and the ICC – 2 July 2019

ECHR Says Ex-Brother and Sister-in-Law Have Right to Marry in Greece

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

ATHENS, Greece — On September 5, 2019, the European Court of Human Rights (“ECHR”) decided that legislation preventing marriage between ex-siblings-in-law is a violation of the right to marry.

Georgios Theodorou and Sophia Tsotsorou were married in 2005, just one year after George was divorced from his previous marriage to Tsotsorou’s sister. After George and Sophia wed, Sophia’s sister complained about the union to a local prosecutor, arguing nullity on the grounds of prohibited kinship between two spouses. In 2010, the marriage was annulled by the Regional Court on the basis of Article 1357 of the Greek Civil Code, which forbids marriage between persons related by collateral descent up to the third degree. The court reasoned that since Theodorou and Tsotsorou were second-degree relatives, their marriage was barred for reasons of decency and respect for the institution of the family. Theodorou and Tsotsorou’s subsequent appeals were dismissed, and their marriage was ultimately annulled in June 2015.

In 2015, Theodorou and Tsotsorou lodged a complaint with the ECHR, citing a violation of Article 12, which proscribes the right to marry. Placing particular importance to this point, the Court noted that a consensus had developed in the marriage of ex-sisters-in-law and brothers-in-law among the member states of the Council of Europe. Only Italy and San Marino had introduced barriers to such a marriage, but these obstacles were not absolute.

The Court also noted that Theodorou and Tsotsorou had not faced any problems prior to getting married and the national authorities had not raised any objections. Tsotsorou’s sister had not complained about the marriage until approximately a year and a half later, and the prosecutor filed a formal complaint two years after the marriage. Relevant authorities only issue a marriage license after certain legal conditions have been met. Here, these authorities did not express any doubts prior to issuing this license, and for more than ten years, the couple enjoyed legal and social recognition of a married relationship and the protection provided exclusively to married couples. Lastly, the Court also observed that the Government’s arguments concerning “biological considerations” and the risk of confusion were unconvincing.

As a result, the Court held that Article 12 had been violated because the annulment of the marriage had disproportionately restricted Theodorou and Tsotsorou’s right to marry.

This decision bodes well for Italy and San Marino, the remaining members of States of the Council of Europe where such a marriage is still forbidden. Other regions of the world may also benefit from this decision, where ex-brothers and sisters-in-law’s right to marry is taboo. Lastly, a broad interpretation of this case can help other parties under Article 12 as well, which states that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.”

For further information, please see:

European Court of Human Rights – Judgement Theodorou and Tsotsorou v. Greece – legislation preventing the marriage of former brothers- and sisters-in-law – 5 Sept. 2019

Law and Religion UK – Marrying a Non-Deceased Wife’s Sister? Theodorou and Tsotsorou – 5 Sept. 2019