ICC

Bipartisan Legislation Seeks to Combat Forced Uyghur Labor; No Clear International Legal Solution

By: Matthew Flug

Impunity Watch News Staff Writer

WASHINGTON, DC, USA – Nearly ten months after the Uyghur Forced Labor Prevention Act (UFLPA) came into effect, a widespread humanitarian crisis continues to unfold against the Uyghur population. The Uyghurs are an ethnic Muslim group of approximately 11 million who primarily live in the Xinjiang Uyghur Autonomous Region (XUAR) of Northwest China. Since 2017, it has been alleged by the United Nations and several countries that more than one million Uyghurs have been detained in internment camps, which the Chinese government called “vocational education and training centers.” The population has reportedly been subject to large scale humanitarian abuses, including torture, forced labor, sterilization, and rape. The White House has publicly stated a genocide is occurring.

A person stands in a tower on the perimeter of the No. 3 Detention Center in Dabancheng in western China's Xinjiang Uyghur Autonomous Region on April 23, 2021.
A person stands in a tower on the perimeter of the No. 3 Detention Center in Dabancheng in western China’s Xinjiang Uyghur Autonomous Region on April 23, 2021. Photo courtesy of AP, published in VOA News.

As a result of these atrocities, Congress passed the bipartisan UFLPA to deny the importation of goods produced utilizing forced labor. While other federal laws also bar the entry of goods using forced labor, the UFLPA specifically strengthens enforcement authorities regarding goods which originate from the XUAR. The UFLPA sets forth a “rebuttable presumption” that all raw or completed goods believed to have passed through the XUAR supply chain involved forced labor, unless US Customs and Border Protection (CBP) certifies otherwise; creating a significant “clear and convincing evidence” burden of proof for industry to overcome. CBP maintains entity lists and “withhold release orders” for designated companies and goods know to come from the XUAR, but immediate identification can be far more difficult given a variety of factors. While a step in the right direction, enforcement against companies or importers does not resolve the likely abuses taking place against the Chinese Uyghurs.

Thus far, no state or international tribunal has ruled on China’s conduct in the XUAR or the alleged humanitarian crisis among the Uyghur community. Most recently, a criminal complaint was filed by two human rights groups in the Federal Criminal Court of Argentina with claims of genocide and crimes against humanity. A similar case was recently filed with the Istanbul Chief Prosecutor’s Office in Turkey. While these courts may be able to try defendants in absentia, the moves are likely symbolic and would not be recognized by Chinese authorities. After being urged to consider on more than one occasion, the International Criminal Court (ICC) declined to pursue an investigation of the mass detention of Uyghurs in 2021. This past summer, renewed calls for the ICC to investigate were made; however, China is also not a signatory to the Rome Statue and as such the Court lacks any real territorial jurisdiction.

A “people’s” Uyghur Tribunal – not a state-recognized court – was established in 2020 as an independent organization in the United Kingdom. This tribunal is led by Geoffrey Nice, who was lead prosecutor for the International Criminal Tribunal for the former Yugoslavia trial against Slobodan Milošević. This tribunal takes testimony and collects evidence with hopes of using against Chinese authorities now and in the future, and the US and other national government have offered to support their efforts.

 

For further information, please see:

Al Jazeera – Uighurs in Turkey file criminal case against Chinese officials – 4 Jan. 2022

Center for Strategic & International Studies – The Uyghur Forced Labor Prevention Act Goes into Effect – 27 June 2022

Council on Foreign Relations – China’s Repression of Uyghurs in Xinjiang – 22 Sept. 2022

Gibson Dunn – Enforcement of the Uyghur Forced Labor Prevention Act Begins in the United States – 23 June 2022

Just Security – China’s Forced Sterilization of Uyghur Women Violates Clear International Law – 29 July 2020

Lawfare – What Is the U.S. Government Doing About Uyghur Forced Labor? – 27 Jan. 2022

The New York Times – I.C.C. Won’t Investigate China’s Detention of Muslims – 10 May 2021

The New York Times – U.S. Says China’s Repression of Uighurs Is ‘Genocide’ – 27 July 2021

Voice of America – Criminal Case Filed in Argentina Over China’s Treatment of Uyghurs – 26 Aug. 2022

Vox – China’s genocide against the Uyghurs, in 4 disturbing charts – 10 Mar. 2021

“The Beauty of the law is that There is no Place to Hide.” Trial of Mahamat Said Opens

By: Nikolaus Merz

Impunity Watch News Staff Writer

THE HAGUE, Netherlands – On Monday September 26th, 2022, the trial of Mahamat Said Abdel Kani began in the sixth chamber of the International Criminal Court with opening remarks by the prosecution.

Mr. Said at the opening of his trial. For his role as de facto commander of the Central Office for the Repression of Banditry, Mr. Said is accused of War Crimes and Crimes Against Humanity under the Rome Statute. Photo courtesy of the International Criminal Court.

The Central African Republic (“CAR”) devolved into civil conflict in 2012, as the anti-government militia group the “Seleka” began armed resistance against President François Bozizé’s government. As the Seleka advanced and occupied the CAR capital of Bangui, they incorporated existing institutions and structures into their organization. In particular, the Central Office for the Repression of Banditry, or “OCRB,” was repurposed by the Seleka to suppress perceived resistance to the militia. Mr. Said, having been appointed de-facto commander of the OCRB by his superiors, had full authority over the Seleka elements within the OCRB in Bangui.

Shortly after establishing a basis of control, Seleka began persecuting people believed to be threats to its power; predominantly targeting Christians, members of the Gbaya tribe, and others with perceived ties to the government of François Bozizé. The OCRB under Seleka control is accused of extorting, harassing, and abducting civilians – often without evidence or justification.

Once in OCRB custody, victims would be held under inhumane conditions, including cramped, overcrowded cells, as well as pits in the earth. Witnesses are expected to testify that the few times they could leave the cells were to be beaten by members of the Seleka. Victims were frequently tortured by a variety of methods, including (but not limited to): being whipped while having gravel on their backs (so as to enhance the pain of the whipping), having their body parts be pulled with pliers, and having their limbs bound in such positions to cause extreme agony and even partial paralysis.

The arrest warrant for Mr. Said was issued in 2019, and he only recently entered International Criminal Court (“ICC”) custody in late 2021. Following a pre-trial decision confirming the charges, Mr. Said stands accused of seven counts of War Crimes and Crimes Against Humanity stemming from eighteen instances of “attritional violence.” The counts include deprivation of liberty, torture, outrages upon personal dignity, and persecution among others.

At the beginning of his trial, Mr. Said pled not guilty to all charges against him.

Prosecutor Khan, delivering the opening statement of the prosecution, highlighted the resolve of Mr. Said’s victims, as well as the long and arduous journey the case has endured to date. Prosecutor Khan further emphasized the sense of justice the case invoked, which reverberated to the core principles of the ICC, saying in simple yet powerful terms “the beauty of the law is that there is no place to hide.” The prosecution is expected to call 43 witnesses during the course of the trial.

The Court will convict Mr. Said only if the charges have been proven beyond a reasonable doubt.

For further information, please see:

ICC – Case Information Sheet – The Prosecution v. Mahamat Said Abdel Kani – Aug. 2022

ICC – Decision on the confirmation of charges against Mahamat Said Abdel Kani – 9 Dec. 2021

ICC – Public Redacted Version of ‘Warrant of Arrest for Mahamat Said Abdel Kani’ – 7 Jan. 2019

ICC – Said trial opens at International Criminal Court – 26 Sept. 2022

IntlCriminalCourt – Said case: Trial opening, 26 September 2022 – 1st session FLOOR – 26 Sept. 2022

Venezuela Refers US Sanctions to ICC for Crimes Against Humanity

By: Henry Schall

Journal of Global Rights and Organizations, Associate Articles Editor

CARACAS, Venezuela – On February 13, 2020, the Government of the Bolivarian Republic of Venezuela filed a request with the chief prosecutor of the International Criminal Court.  This request has the purpose of seeking an investigation of United States sanctions against Venezuela, calling the sanctions “crimes against humanity.”

The current crisis in Venezuela is due to economic collapse after President Maduro took power in 2013.  This collapse caused widespread shortages in basic food and supplies causing 4.5 million people to flee. 

Strong opposition parties emerged around Maduro within the National Assembly culminating in the 2018 election, where Maduro was reelected.  This election was widely dismissed as rigged, and fifty other countries recognize the National Assembly leader Juan Guaidó as the rightful president. 

To pressure Maduro in hopes that he would step down, the United States imposed new sanctions in August 2019.  In a letter to Congress, President Trump wrote that the new sanctions were imposed due to the “continued usurpation of power by Nicolás Maduro and persons affiliated with him, as well as human rights abuses, arbitrary arrest and detention of Venezuelan citizens.”

President Trump signed an executive order which declared all property or interests in property owned by the government of Venezuela in the United States as blocked which cannot be used.   The new sanctions bar any transactions with Venezuelan officials whose assets are blocked.  President Trump’s order states, “the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order.” 

These new sanctions expand pressure on Maduro by targeting his government, but also targeting individuals, companies, and countries doing business with the government.  The United States Security Advisor John Bolton said the new sanction could be imposed on any supporters of the Maduro government, since the sanctions would force countries and companies to choose between doing business with the United States or Venezuela.  Venezuela has long blamed the United States for the current economic crisis, but the sanctions do include exceptions for humanitarian goods, food and medicine.  

In a sixty-page brief, Venezuela referred the situation in accordance with Article 14 of the Rome Statute, declaring that the Unilateral Coercive Measures imposed impose negative impacts on the people in Venezuela.  Venezuela contends these sanctions contravene international law that prevent foreign intervention in internal affairs and have caused an enormous hardship for the people of Venezuela.  The brief further declares these sanctions as crimes against humanity, citing a study by Mark Weisbrot and Jeffrey Sachs which provides statistical evidence that sanctions amount to a death sentence for tens of thousands of Venezuelan Citizens. 

On February 19, 2020, the Presidency of the ICC referred the situation in Venezuela to Pre-Trial Chamber III.  According to the ICC, a State Party referral does not automatically lead to an investigation, but it may speed up opening the investigation.  Now, the Prosecutor must consider issues of jurisdiction, admissibility and the interests of justice in determining if an investigation should be opened. 

For further information, please see:

International Criminal Court – Annex I to the Prosecution’s Provision of the Supporting Document of the Referral Submitted by the Government of Venezuela – 4 Mar. 2020

International Criminal Court – Statement of the Prosecutor of the International Criminal Court, Mrs Fatou Bensouda, on the referral by Venezuela regarding the situation in its own territory – 17 Feb. 2020

BBC – Venezuela crisis in 300 words – 6 Jan. 2020

BBC – US imposes sweeping sanctions on Venezuelan government – 6 Aug. 2019

ICC Presidency Sets Chamber for Yekatom and Ngaïssona Trial

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On March 16, 2020, the Presidency of the International Criminal Court (“ICC”), the administrative organ of the ICC, issued a decision constituting Trial Chamber V. This decision referred the case of The Prosecutor v. Alfred Yekatom and Patrice Edouard Ngaïssona to Trial Chamber V.  The Presidency appointed Judge Bertram Schmitt, Judge Péter Kovács, and Judge Chang-ho Chung to oversee the trial. 

Patrice Edouard Ngaïssona (left) and Alfred Yekatom (right) in pretrial proceedings before the ICC. Photo Courtesy of the International Criminal Court.

This decision follows a relatively short pre-trial phase in which two separate cases were brought before Pre-Trial Chamber II on November 23, 2018 (Yekatom), and January 25, 2019 (Ngaïssona).  On February 23, 2019, Pre-Trial Chamber II joined the cases in order to enhance the fairness and expeditiousness of proceedings, reduce the duplication of evidence, and eliminate inconsistency in presentation.  It is not uncommon for the pre-trial phase of some cases to last several years. 

On December 11, 2019, Pre-Trial Chamber II partially confirmed the charges of war crimes and crimes against humanity brought against Yekatom and Ngaïssona.  The two militia leaders from the Central African Republic (“CAR”) are accused of being involved in a widespread attack on the Muslim civilian population of the country between September 2013 and December 2014.  Among other crimes, Yekatom and Ngaïssona are specifically accused of murder, rape, intentionally directing an attack against a building dedicated to religion, forcible transfer of population and displacement of the civilian population, severe deprivation of physical liberty, cruel treatment, and torture.

This case has presented unique challenges for the ICC.  In a previous pre-trial appeal, The Prosecutor requested additional time to gather witnesses because this case is larger than most that the ICC has previously handled. Larger cases tend to require more witnesses, which in turn requires more protective measures, and more information to review.  However, as the Court noted, the security situation in the CAR is particularly unreliable, and the issue of witness protection has influenced the process of gathering evidence.  For example, the Court has conditioned the authorization of arrest warrants on whether witnesses could be adequately protected.

Moving forward, Trial Chamber V will hold status conferences, confer with the parties and participants, set the trial date, and determine the procedures necessary to facilitate fair and expeditious proceedings.  At trial, the Prosecution must prove the guilt of the accused beyond a reasonable doubt.  There is no separate jury in the ICC; the three judges issue a verdict, and if guilty, a sentence. 

For further information, please see:

International Criminal Court – Case Information Sheet: Situation in Central African Republic II – 17 Mar. 2020

International Criminal Court – Yekatom and Ngaïssona case: ICC Presidency constitutes Trial Chamber V – 17 Mar. 2020

Coalition for the International Criminal Court – ICC Pre Trial Chamber II confirms charges against Alfred Yekatom and Patrice-Edouard Ngaïssona – 17 Dec. 2020

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