by Youk Chhang*
The Extraordinary Chambers in the Courts of Cambodia
We have come a long way in forging a number of valuable instruments and policies to meet the challenge of responding to and punishing violence and mass atrocity. Recognising that the root causes of mass atrocities often stem from the inequalities between identity groups, we have put emphasis on the legal and governmental aspects of violence prevention. In terms of punishment as well, a variety of courts have been created to shed light on the atrocious acts of criminal regimes, and punish leaders who were most responsible.
The proceedings now under way at the Extraordinary Chambers in the Courts of Cambodia (ECCC), known as the Khmer Rouge tribunal, represent one example of how Cambodia has sought to address the horrible crimes perpetrated from 1975-79. The court’s work can be broken down into four cases. Case 001, which was completed in 2012, centred upon the prosecution of the notorious chief of a prison/security centre (S-21), who was sentenced to life imprisonment.
The trial court also recently issued its judgment for the accused senior leaders in the first set of charges in Case 002. Case 002, which has been broken up into separate trials reflecting different charges against the accused, holds importance in Cambodia’s struggle to understand what happened and why during the horrific Democratic Kampuchea (DK) period. Finally, cases 003 and 004 continue to be investigated. Continue reading
By Dr Miša Zgonec-Rožej*
The decision to not investigate alleged war crimes during the raid on a Gaza-bound humanitarian flotilla in 2010 comes as no surprise, but it highlights the uncertain legal situation surrounding the Rome Statute’s applicability to the Israeli-Palestinian situation.
Passengers look down from the Turkish passenger ship Mavi Marmara as the Israeli navy intercepts boats bound for Gaza on 31 May 2010 – ©Getty Images
On 5 November, the International Criminal Court decided not to proceed with an investigation into alleged war crimes committed by Israeli soldiers during their raid on a Gaza-bound humanitarian flotilla in 2010. Despite acknowledging a reasonable basis to believe that war crimes were committed on one of the vessels, the Mavi Marmara, the prosecutor concluded that the potential case was not of sufficient gravity to justify further action by the ICC. The decision comes as no surprise.
Due to its limited resources, the ICC was never intended to deal with all crimes falling within its jurisdiction. The assessment as to which case meets the threshold of sufficient gravity is based on the scale, nature, manner of commission of the crimes and their impact. Given that the court lacks jurisdiction to investigate any other alleged crimes committed in the context of the Israel-Hamas conflict or in the broader context of the Israeli-Palestinian conflict, the prosecutor concluded that the requisite threshold was not met because the potential case(s) would be limited to an event encompassing a small number of victims of the alleged war crimes. Continue reading
By Max du Plessis*
On 30 October 2014, the Constitutional Court of South Africa handed down its judgment in a landmark case for international criminal justice.
The appeal related to the responsibilities of the South African Police Service (SAPS) under domestic and international law to investigate acts of torture, as a crime against humanity, that were allegedly committed in Zimbabwe.
The decision, by South Africa’s highest court, reaffirms the obligations set out in the South African Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act) regarding investigation and prosecution of international crimes.
In March 2008, the Southern African Litigation Centre (SALC) submitted a dossier to the Priority Crimes Litigation Unit of the National Prosecuting Authority (NPA) detailing allegations of torture in Zimbabwe. The NPA took no action, indicating that they could only do so if the police investigated the allegations and laid charges. Continue reading
by Dr Filippo Fontanelli
The International Court of Justice
With the decision no. 238 of 22 October 2014, the Italian Constitutional Court (the CC) produced the most spectacular display of dualism this side of Medellin. The CC declared the unconstitutionality of Italy’s compliance with the International Court of Justice (ICJ)’s judgment Germany v. Italy (Greece intervening). The CC’s ruling – briefly reported – invites speculation on two fronts: 1) What does it say about the application of international law in domestic courts? 2) Is the judgment reasonable by any relevant standards other than Italian constitutional law?
On the practical matters of the follow-up scenario before Italian ordinary courts, I take the liberty to refer to my discussion here (spoiler: Germany will not pay anyway).
In February 2012, the ICJ found that Italy breached its international obligations vis-à-vis Germany. Italian courts had exercised jurisdiction in tort proceedings against Germany, instituted by Italian plaintiffs for World War II war crimes of the Nazi occupation forces in Italy. These proceedings, resulting in Germany being ordered to compensate the victims, constituted internationally wrongful acts, since they disregarded the international custom whereby sovereign states are immune from civil suit in foreign courts, for acts jure imperii. The ICJ reached the same conclusion with respect to the ensuing enforcement proceedings and the exequatur granted by Italian judges to authorise execution of Greek judgments in similar disputes. Continue reading
by Léa Kulinowski
Aimé Kilolo, Jean-Jacques Mangenda and Jean-Pierre Bemba
On 21 October 2014, Pre-Trial Chamber II of the International Criminal Court ordered the immediate release of four out of the five suspects in the case of Prosecutor v. Bemba, Kilolo, Mangenda, Babala and Arido. Mr. Bemba, who has been held in detention since July 2008 as a result of charges of war crimes and crimes against humanity, remains detained.
The suspects are charged with offences against the administration of justice under Article 70 of the Statute – the first of its kind before the ICC – including giving false testimony, knowingly presenting false/forged evidence and corruptly influencing witnesses. The penalty for these offences goes from a fine to a maximum of five years of imprisonment.
When granting the interim release, the Single Judge emphasised the protection against unreasonable detention as per Article 60 (4) of the Statute and noted the advanced stage of the proceedings as well as the various delays, holding that “the reasonableness of the duration of the detention has to be balanced inter alia against the statutory penalties applicable to the offences at stake in these proceedings and that, accordingly, the further extension of the period of the pre-trial detention would result in making its duration disproportionate”. Even though the duration of the suspects’ detention was not due to the Prosecutor’s inexcusable delay, the Single Judge found that the Pre-Trial Chamber was under an independent obligation to ensure that that a person is not unreasonably detained prior to trial under Article 60 (4) of the Statute. Continue reading
by Vani Sathisan*
A resident of Thanlyin township sits inside her home after officials posted an eviction notice in February 2013.
The village elder from Mutu, a small village near Dawei, in southern Myanmar, held out the 30 complaint letters residents had sent to Tanintharyi Region Chief Minister U Myat Ko.
The letters sought to highlight alleged human rights violations related to the development of the Dawei Special Economic Zone (SEZ) and requested that adequate compensation be paid to those affected.
In Mutu and neighbouring villages, farmers and fishermen lamented the displacement of communities, loss of livelihoods and culture, and forced relocations due to the development of the Dawei SEZ and related infrastructure. Some told us they were being charged with trespassing on government land because they had refused to leave their homes after their land had been confiscated.
While the Dawei SEZ has been stalled for some time, Thai Prime Minister Prayut Chan-o-cha will visit Myanmar – his first official overseas trip – and is expected to hold talks aimed at reviving the project.
But the complaints emanating from Dawei are not isolated incidents. Amid the euphoria of the investment gold rush, Myanmar faces an epidemic of land disputes exacerbated by the development of SEZs. Continue reading
by Max du Plessis
Advocate of the High Court, Durban and Sandton; Associate Tenant, Doughty Street Chambers, London; Associate Professor, University of KwaZulu-Natal
Executive Director, Southern Africa Litigation Centre
African Heads of State at the Malabo Summit last June
On June 2014, African Heads of State and Governments meeting in Malabo, Equatorial Guinea, adopted a Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the ACJHPR Amendment). The ACJHPR Amendment revises the (not yet in force) Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR Protocol) – which was adopted in 2008 to merge the African Court on Human and Peoples’ Rights with the proposed African Court of Justice. The aim of the 2014 ACJHPR Amendment is to grant the resultant Court ‘International Criminal Law’ jurisdiction, adding to the ‘Human Rights’ jurisdiction it presently exercises and the ‘General International Law’ jurisdiction it is expected to exercise when the 2008 ACJHR Protocol comes into effect (whenever that may be). To make matters worse (or better), the ACJHPR Amendment also introduces a change in nomenclature: the new amended, revised African Court will be called the ‘African Court of Justice and Human and Peoples Rights’ (the ACJHPR) (article 8, ACJHPR Amendment).
To give effect to its aims, the 2014 ACJHPR Amendment contains a number of revisions to both the 2008 ACJHR Protocol and the Statute of the Court attached thereto. However, if matters were not already confusing and time-warped, the 2014 ACJHPR Amendment is itself a revised version of an earlier draft, approved by African Ministers of Justice and Attorney General and recommended to the AU Assembly in May 2012 (the ‘2012 Draft Amendment’). The 2012 Draft Amendment was the subject of considerable criticism, including a Comment in this journal by the author (du Plessis, ‘A new regional International Criminal Court for Africa?’, 2 SACJ (2012) 286). In short, general concerns were raised regarding the rushed drafting process and the lack of consultation, and specific concerns were raised as to difficulties surrounding jurisdiction, the definition of crimes, immunities, institutional design and the practicality of administration and enforcement of an expanded jurisdiction, amongst others. Continue reading
by Max du Plessis*
The International Criminal Court
Complementarity is certainly posited as a driving feature of the ICC regime. The ICC is expected to act in what is described as a ‘complementary’ relationship with domestic states that are party to the Rome Statute. The Preamble to the Rome Statute says that the ICC’s jurisdiction will be complementary to that of national jurisdictions, and article 17 of the Statute embodies the complementarity principle. At the heart of this principle is the ability to prosecute international criminals in one’s national courts, on behalf of the international community, or to have in place mechanisms to arrest and surrender to the ICC persons that the court seeks to prosecute and who happen to be in one’s jurisdiction.
Linked to the principle of complementarity is the practice of universal jurisdiction. The ICC does not exercise universal jurisdiction. But states do, and it is here that the real potential lies for states to act as impunity gap fillers – acting where the ICC is unable or unwilling to do so.
Various developments in Africa suggest a broader understanding of complementarity that is unfolding in practice and which is worthy of further exploration. This broader understanding in certain respects falls within the notion of ‘positive complementarity’, or perhaps better phrased, ‘proactive complementarity’ – a term meaning that the ICC and states should actively encourage genuine national proceedings where possible, and that national and international networks should be relied upon as part of a system of international cooperation. Continue reading
by David Tolbert*
Gaza, August 2014
The world has plunged into a period of brutality, with impunity for the perpetrators of violence. Syria is suffering untold civilian casualties as a divided United Nations Security Council sits on the sidelines. Gaza was pummeled to dust yet again with the world watching on. Iraq is in flames, with no end in sight. Atrocities are mounting in South Sudan and the Central African Republic, which are also being swept by an epidemic of sexual violence. Even Europe is not immune: a civilian aircraft was shot down over a conflict zone in eastern Ukraine, and officials were prevented from investigating.
Twenty-five years after the fall of the Berlin Wall, and more than a decade after the establishment of the International Criminal Court (ICC), shockingly little is being done to stop these abuses, and the prospects of the victims ever getting justice, let alone bringing the perpetrators to account, seem ever more remote.
For many years, the world seemed to be progressing toward greater recognition of human rights and demands for justice. As democracies emerged in Latin America and Central and Eastern Europe in the 1980s and 1990s, these issues assumed increasing importance. Although wars, conflicts, and atrocities continued, the global powers tried, and occasionally managed – albeit chaotically and usually late – to stop the killing. Continue reading
James G. Stewart, an assistant professor of law at the University of British Columbia and a former war crimes prosecutor, has published an article entitled “The turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute” in the New York University Journal of International Law and Politics. The full article is available here.
Protesters Seeking to Hold Royal Dutch Shell Liable for Human Rights Abuses ©Minn. J. Int’l L.
Abstract: In November 2013, Swiss authorities announced a criminal investigation into one of the world’s largest gold refineries, on the basis that the company committed a war crime. The Swiss investigation comes a matter of months after the US Supreme Court decided in Kiobel that allegations such as these could not give rise to civil liability under the aegis of the Alien Tort Statute (“ATS”). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Court’s position in Kiobel a century later, the arguments that ultimately led to the open-armed embrace of corporate criminal liability were unambiguously concerned with impunity. For the U.S. Supreme Court, doing without corporate criminal responsibility would create a significant and highly undesirable regulatory gap. After that, the American fiction that corporations are people for the purposes of criminal law took hold, such that the concept is now relatively ubiquitous globally. Even jurisdictions that bravely held out for decades on philosophical grounds have recently adopted corporate criminal liability. Switzerland is one such case. Continue reading