ICC Postpones Delivery of Judgment for Malian Crimes Against Humanity and Gender-Based Persecution Case

By: Joo Young Lee

Journal of Global Rights and Organizations, Associate Articles Editor

THE HAGUE, The Netherlands – On January 15, 2024, Trial Chamber X of the International Criminal Court (ICC) postponed delivery of its verdict for The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (hereinafter “Al Hassan”) pursuant to article 74 of the Rome Statute.

 
Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud at the International Criminal Court in The Hague (Netherlands) on May 23, 2023. | Photo Courtesy of the ICC.
  

Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud is accused of perpetrating war crimes and crimes against humanity in Timbuktu, Mali. He is facing charges of persecution based on religious and gender grounds, rape, torture, sexual slavery, and forced marriages that occurred between April 2012 and January 2013. The delivery of the judgment by the ICC was originally set for January 18, 2024, and a new date will be announced in due course.

Notably, the Al Hassan case marks the ICC’s first prosecution of the crime against humanity of persecution on grounds of gender pursuant to the Rome Statute. The prosecution contends that Al Hassan and his group specifically targeted women and girls for breaking a strict dress code, restrictions on freedom of movement, and rules on segregation of the sexes. According to prosecutors, Al Hassan led a police force created by the al Qaeda-linked Ansar Dine group that tormented Timbuktu, particularly targeting women who faced rape, forced marriages and sexual slavery.

The United Nations’ Women, Peace, and Security (WPS) agenda recognizes sexual violence as a weapon of war and acknowledges that it can amount to international crimes, calling for enhanced criminal accountability.

During a hearing on May 9, 2022, the defense argued that faced with dire circumstances, Al Hasan became involved with armed groups as a survival strategy. The defense maintained that Al Hasan was wrongly selected for prosecution and portrayed him as trying to maintain order in a chaotic situation in Timbuktu following the rebel takeover. The defense also argued that Al Hasan’s role in the conflict was too minor to warrant charges at the ICC for crimes against humanity.

Closing statements occurred before the ICC between May 23 and 25, 2023. Trial Chamber X of the ICC will deliver its decision on conviction or acquittal pursuant to article 74 of the Rome Statute. The Chamber bases its decision only on the applicable law and on evidence submitted before it at the trial.

For further information, please see:

Al Jazeera – ICC prosecutors: Mali rebel “enthusiastic” war crimes perpetrator – 23 May 2023

Courthouse News Service – Closing arguments begin in trial over Mali war crimes – 23 May 2023

Diplomat – ICC Trial Chamber X to deliberate on the Al Hassan case – 25 May 2023

ICC – Al Hassan case: Trial Chamber X postpones delivery of judgment – 15 Jan. 2024

ICC – Trial Judgment in Al Hassan case on 18 January 2024 – Practical information – 10 Jan. 2024

ICC – Al Hassan case: ICC Trial Chamber X to deliver Trial Judgment on 18 January 2024 – 6 Dec. 2023

ICC – ICC Trial Chamber X to deliberate on the Al Hassan case – 25 May 2023

Justice in Conflict – Writing the Jurisprudence of Gender-Based Persecution: Al Hassan on Trial at the ICC – 15 July 2020

 

ECHR Holds Polish Abortion Legislation Violates European Convention on Human Rights

By: Molly Osinoff

Impunity Watch News Staff Writer

POLAND – On December 14, 2023, the European Court of Human Rights (ECHR) held that Poland’s legislative amendments that forced a woman to travel abroad to have an abortion breached Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life.

 
A protest in Krakow, Poland following abortion restrictions | Photo Courtesy of the New York Times.
  

Poland’s abortion laws are among the most restrictive in Europe. Prior to 2020, abortion was legal in Poland in only three situations: fetal abnormalities, pregnancies caused by rape or incest, and threats to the women’s life or health. In 2020, the Polish Constitutional Tribunal’s ruling restricted abortion access even further. While the latter two reasons remain legal, the Tribunal banned abortions due to fetal abnormalities, which make up approximately 98% of the abortions performed annually in Poland, reasoning that terminating a pregnancy violates the unborn child’s Constitutional guarantee to life. As a result, the 2020 ruling is effectively a total abortion ban.

The plaintiff in the recent case, M.L. v. Poland, was scheduled for a legal abortion in early 2021 in a Warsaw hospital. After becoming pregnant in late 2020, she discovered that the fetus had Trisomy 21, also known as Down Syndrome. On the day before the procedure, however, the Constitutional Court’s judgment went into effect. M.L.’s doctors informed her that she could no longer have an abortion in the facility or in any other medical institution in Poland. As a result, M.L. traveled to the Netherlands, where she had an abortion in a private clinic.

M.L. alleged that she had been forced to make a choice between giving birth to a child with Trisomy 21 and traveling abroad to have an abortion, resulting in severe emotional suffering. The ECHR held in her favor, holding that Poland’s restriction on abortion in the instance of fetal abnormality, when sought for reasons of health and well-being, came within the Article 8 scope of the right to respect for her private life. Further, the Court noted that “private life,” as meant in Article 8 of the Convention, encompasses the right to personal autonomy and personal development and concerns subjects such as gender identification, sexual orientation, sexual life, physical and psychological integrity, including the decision whether to have a child or to become genetic parents.

For further information, please see:

ECHR – M.L. v. Poland – 18 Oct. 2021.

ECHR – Woman Forced to Travel Abroad to Have an Abortion Following Legislating Amendments in Poland Breached the Convention – 14 Dec. 2023.

New York Times – Near-Total Abortion Ban Takes Effect in Poland, and Thousands Protest – 27 Jan. 2021.

New York Times – Poland Court Ruling Effectively Bans Legal Abortions – 22 Oct. 2020.

Pulitzer Center – Poland’s Abortion Ban Is Changing Maternal Health Care – 13 Oct. 2023.

 

 

ICJ Issues Provisional Measures to Protect Guyana Territorial Rights Pending Court Decision on Validity of 1899 Border Agreement

By: Megan Mary Qualters

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – The International Court of Justice (hereinafter ICJ) ordered provisional measures to protect Guyana’s rights in highly contentious territory dispute with Venezuela.

 
Photo image of Venezuelan government revealing a map indicating the “Guayana’s Esequiba” as Venezuelan territory | Photo Courtesy of the New York Times, see Gaby Oraa/Getty Images.
  

Procedural History

In March 2018, the Co-operative Republic of Guyana’s government (hereinafter “Guyana”) filed proceedings against the Bolivarian Republic of Venezuela (hereinafter “Venezuela”). The legal issue is whether the Arbitral Agreement of 1899, which establishes the border line between Guyana and Venezuela, in a region called the “Guayana Esequiba,” is legally valid. Guyana claims it is valid and thus grants the Esequiba to Guyana, but Venezuela claims it is void and argues that the Esequiba is Venezuelan territory.

On October 23, 2023, Venezuela published a list of five questions it planned to use in a “Consultative Referendum,” to be held on December 3, 2023. The questions asked for support in rejecting the validity of the 1899 Award, the ICJ’s jurisdiction, and advocated for an accelerated plan to incorporate the Esequiba into Venezuela.

On October 30, 2023, in response to Venezuela’s questions and referendum plans, Guyana requested the ICJ issue provisional measures to prevent Venezuela from publishing its questions, ultimately asking the ICJ to protect its rights to the Esequiba region while the validity of the 1899 Award is pending.

On November 14 and 15, 2023, the ICJ heard oral arguments from both parties regarding the issue of provisional measures. Guyana asked the Court to order the following provisional measures, while Venezuela asked the court to reject the request.

  1. “Venezuela shall not proceed with the Consultative Referendum planned for 3 December 2023 in its present form;
  2. In particular, Venezuela shall not include the First, Third or Fifth questions in the Consultative Referendum;
  3. Nor shall Venezuela include within the ‘Consultative Referendum’ planned, or any other public referendum, any question encroaching upon the legal issues to be determined by the Court in its Judgment on the Merits . . .
  4. Venezuela shall not take any actions that are intended to prepare or allow the exercise of sovereignty or de facto control over any territory that was awarded to British Guiana in the 1899 Arbitral Award.
  5. Venezuela shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”

Required Elements of an ICJ Provisional Measure

The ICJ, after affirming its 2020 Judgement that it has the necessary jurisdiction to adjudicate the claims of Guyana, turned to Article 41 of the ICJ Statute, which focuses on the preservation of rights claimed by parties in a case. To issue provisional measures the Court must find (1) the rights claimed by a party is plausible, (2) there is a link between the right claimed and the provisional measure requested, and (3) without the provisional measure “there is a real and imminent risk that” (4) “irreparable prejudice will be caused to the rights claimed before the Court gives its final decision.”

Here, the Court found that Guyana’s right to “preservation and protection of its right to the territory” is plausible. The Court notes that a right’s existence need not be proven, it only need be asserted plausible. Therefore, the Court need not determine which country has a right to the territory, but only that Guyana could have a plausible right to the Esequiba. The Court held that the existence of the 1899 Award and the dispute itself are sufficient to give Guyana a plausible right to the Esequiba.

Moreover, the Court found there is a link between the plausible right and the provisional measure sought. Guyana “seeks to ensure” that Venezuela does not prepare to, or exercise control of, the territory awarded to Guyana in the 1899 Award, which the ICJ considers a measure “aimed at protecting Guyana’s right which the Court has found plausible.”

Lastly, the Court turned to “Venezuela’s expressed readiness to take action with regard to the territory in dispute in these proceedings at any moment following the referendum scheduled for 3 December 2023” as sufficient evidence to find that Guyana is at serious risk of irreparable prejudice, and that the risk of this is urgent in a real and imminent sense.

ICJ’s December 1 Order

Due to the reasons above, the Court found it necessary to issue a provisional measure to protect Guyana’s right to the Esequiba.  However, the Court found the measures provided need not match exactly what Guyana requested. Its resulting provisional measure consisted simply of ordering Venezuela to refrain from taking any action “which would modify the situation that currently prevails in the territory in dispute” and that both Parties “shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” The ICJ has yet to determine the validity of the 1899 Award.

For further information, please see:

ICJ – Order of 1 December 2023 – 1 Dec. 2023

ICJ – Arbitral Award of 3 October 1899 (Guyana v. Venezuela) Latest Developments

New York Times – Venezuela Renews Claims to Part of Guyana, the Oil-Rich ‘Second Qatar’ – 21 Dec. 2023

South Africa Initiates Proceedings in ICJ Against Israel for Violations of the 1948 Genocide Convention in Gaza

By: Garrison Funk

Impunity Watch News Staff Writer

THE HAGUE, Netherlands – On December 29, 2023, South Africa initiated proceedings in the International Court of Justice against the state of Israel for its actions in the Gaza Strip, accusing Israel of violating the 1948 Genocide Convention due to its treatment of Palestinians throughout the conflict with Hamas. Israel has confirmed it will appear at the proceedings to fight the allegations.

 
Judges at the International Court of Justice at The Hague | Photo Courtesy of Al Jazeera, Remko De Waalepa/EFE/EPA
  

South Africa pointed to the ongoing humanitarian crisis and magnitude of death and destruction in Gaza, stating such action meets the threshold of the 1948 Convention under international law. South Africa has also requested the Court order an injunction on any further Israeli attacks in the region.

Israel’s actions in the Gaza Strip have been a part of a three-month long campaign against Hamas, the perpetrators of the October 7, 2023, terrorist attack in Israel which led to the deaths of approximately 1,200 Israelis. Israel responded by launching a series of airstrikes into Gaza, targeting suspected Hamas strongholds, prior to launching a full-scale ground invasion of the Gaza Strip on October 27, 2023. Since the start of the invasion, the Palestinian Ministry of Health in Gaza has reported the death toll to exceed 22,000.

South Africa claims Israel’s actions violate obligations set under the 1948 Genocide Convention. The Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Israel has pushed diplomatic cables requesting countries to denounce the claims and pointed to its effort to increase humanitarian support in the region to refute the idea of genocide. The United States has already stated its support for Israel, calling South Africa’s submission “meritless, counterproductive, and completely without any basis in fact whatsoever.” However, pro-Palestine countries such as Turkey and Jordan have both expressed their support for South Africa’s challenge.

Israel has boycotted the ICJ and its rulings for decades, and its participation in this instance as a signee to the 1948 Genocide Convention speaks volumes of the importance of this issue to Israel. The case is set to be heard by the ICJ on January 11, 2024.

For further information, please see:

Al Jazeera – Israel promises to fight South Africa genocide accusation at ICJ – 2 Jan. 2024

Axios – Inside Israel’s plan to quash South Africa’s Gaza genocide case – 5 Jan. 2024

CSIS – Hamas’s October 7 Attack: Visualizing the Data – 19 Dec. 2023

The Guardian – Stakes high as South Africa brings claim of genocidal intent against Israel  – 4 Jan. 2024

ICJ – Application Instituting Proceedings – 29 Dec. 2023

UNN – Gaza fighting continues amid ‘apocalyptic’ conditions; Security Council to meet Friday – 7 Dec. 2023

ICC Office of the Prosecutor Implements New Policy to Promote the Inclusion of Children in the International Criminal Justice Process

By: Rebecca Pioso

Journal of Global Rights and Organizations, Associate Articles Editor

THE HAGUE, The Netherlands – On December 8, 2023, the ICC Office of the Prosecutor implemented the “Policy on Children” to address the worldwide suffering that children face regarding their historic underrepresentation and lack of appropriate engagement with the criminal justice process.

 
Cover Page of the ICC Office of the Prosecutor Policy on Children | Photo courtesy of ICC Office of the Prosecutor.
  

The ICC’s Rome Statue grants the ICC jurisdiction over international crimes involving genocide, crimes against humanity, war crimes, and crimes of aggression. Article 54 of the Rome Statute mandates that the Office of the Prosecutor devote special consideration to investigations and prosecutions against children. Children have the right to partake in the criminal justice process, just as adults are. However, the ICC has acknowledged the routine failure of tribunals to appropriately include children in international criminal justice processes, which in turn violates their human rights.

Addressing children’s participation in the international criminal justice processes is crucial. Nearly one third of the global population is under eighteen years of age, yet children’s experiences and their key roles within the accountability processes are largely overlooked or otherwise ignored based on misconceptions, stereotypes, and failures to devote appropriate resources to support proper methodologies that account for the specific needs of each child. For example, tribunals traditionally have an adult-centric view which largely excludes children and often stereotype them as a homogenous group, regardless of their unique needs and capacities. Moreover, crimes impacting children are routinely under-reported, under-investigated and under-prosecuted.

The ICC has recognized the necessity of improving the understandings of and adaptation to children’s experiences and facilitating their engagement in the international criminal justice processes. The Court has committed to increasing children’s access to justice by implementing a children’s rights approach. It will ensure that children’s voices will be affirmatively heard in each case and situation that they are involved in under the Rome Statute so that their unique vulnerabilities and the manners in which they are targeted and ultimately impacted based on their status in society regarding their physical, mental, psychological development, and ability to engage with criminal justice process, can be better understood.

The Prosecutor’s new has specific objectives to:

  • Remedy the historic lack of representation and engagement of children in the international criminal justice process.
  • Bring attention to the viewpoint that crimes under the Rome Statute can be committed against and impact children.
  • Ensure that, in all dealings with children, the Office of the Prosecutor takes a child rights, child-sensitive, and child-competent approach that is guided by the child’s best interests.
  • Actively adapt and reflect topics including intersectionality, children’s developmental stages, their capacities and abilities.
  • Re-emphasize the Office of the Prosecutor’s commitment to building an international community that facilitates effective investigation and prosecution of crimes against children.
  • Promote the exchange of knowledge regarding best practices and accountability efforts.

The Policy focuses on recruitment, training, external collaboration, implementation, monitoring, and evaluation, with the goal of promoting a more effective and equitable system for prosecuting crimes against and impacting children. The Policy also reflects the ICC’s awareness of their place within a global ecosystem of accountability, and specifically, the Office of the Prosecutor’s commitment to broadening and then reflecting its understanding as to the unique impacts of Rome Statute crimes involving children, and to improving the processes for effectively including children in the international criminal justice processes.

For further information, please see:

ICC – How the Court Works – 2024

ICC Office of the Prosecutor – Policy on Children – Dec. 2023

ICC Office of the Prosecutor – Statement by ICC Prosecutor Karim A.A. Khan KC – 8 Dec. 2023

ICC Office of the Prosecutor – Policy on Children (2016) – Nov. 2016