Tag Archives: Prosecution

Can We Prosecute Starvation?

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YemenGlobal Rights Compliance, in partnership with the World Peace Foundation has released the first briefing paper related to the Yemen Accountability Project: Entitled “Can we prosecute starvation?”, the paper considers the relationship between starvation and conflict, reviews the relevant law, and discusses the requisite evidence for mounting a prosecution.

In summary, the paper addresses the following key points:

  • Famine can be ended. The world came close to doing so. Between 2000 and 2011, there were no famines. Today, several famines threaten various states and regions, all due to the conduct of armed conflict;
  • Famine is properly understood as an atrocity: the result of distinct and often criminally intentional policies that target discrete populations in the pursuit of military or political goals. Famines will no longer occur when they are so morally reprehensible that causing them, or allowing them to happen, is unthinkable. In order to achieve this goal, a sharper application of international law is needed;
  • Although starvation has appeared in a handful of prosecutions in international criminal law over the modern era, there have been a dearth of prosecutions resting squarely on the crime of starvation;
  • A principal challenge is ensuring that the law distinguishes between legitimate military actions such as sieges, the multiple and intersecting causes of famine, and the deliberate starvation of civilians;
  • The clearest and most progressive law on the books is Article 8(2)(b)(xxv) of the Rome Statute, however it does not apply to non-international armed conflict, the context for all of today’s famine situations;
  • Several other legal options exist for prosecution, ranging from war crimes, to crimes against humanity, to genocide, which might be used to address the deliberate starvation of civilians. Doing so will require careful attention to the elements of the offence and the necessary evidence required to establish those elements and the required intent;
  • Only when existing or future legal mechanisms develop or create a better understanding of these scenarios, will prosecutions produce a more singular definition of the crime of starvation.

Prosecutions of Syrian War Crimes

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A man inspects a damaged house after an airstrike on al-Yadouda village, in Deraa Governorate, Syria February 15, 2017. REUTERS/Alaa Al-Faqir

A man inspects a damaged house after an airstrike on al-Yadouda village, in Deraa Governorate, Syria February 15, 2017. ©REUTERS

On Thursday, the United Nations announced that a new body is being set up to prepare prosecutions of war crimes and crimes against humanity committed in Syria. UN Secretary-General Antonio Guterres is due to name a judge or prosecutor as its head this month.

While the independent panel, which is officially called the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in [Syria] since March 2011, is not able to prosecute individuals itself, it will collect and preserve evidence and prepare files for future prosecutions which states or international courts can use.

In December, the UN General Assembly voted to establish the mechanism. The United Nations aims to recruit 40-60 experts in investigations, prosecutions, the military, and forensics.

A UN Commission of Inquiry has already been collecting evidence since 2011. It has issued 20 reports accusing the Assad government, rebel forces and Islamic State of mass killings, rapes, disappearances and recruiting child soldiers.

Also on Thursday in a landmark ruling, a Swedish Court sentenced a Syrian man to life imprisonment for violating international humanitarian law through his participation in the execution style-murder of seven men in Syria in 2012. Under Swedish law, courts can try Swedish citizens as well as other nationals for crimes committed abroad.

Other European countries have similarly started investigations and prosecutions against people accused of committing serious crimes in Syria. The cases are based on the principle of universal jurisdiction and are possible because of the arrival in Europe of both victims and suspects as refugees.

Amnesty International reported last week the Syrian government executed up to 13,000 prisoners in mass hangings and carried out systematic torture at a military jail.

National European Courts Prosecute Syrian War Crimes

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While the United Nations Security Council seems unable to reach any agreement on referring the Syrian situation to the International Criminal Court or to set up a special tribunal on the ICTY and ICTR models, European courts have started prosecuting Syrian war crimes.

A grieving man in front of a destroyed mosque in Taftanaz after government forces attacked the town on April 3 and 4. ©2012 Robert King/Polaris

A grieving man in front of a destroyed mosque in Taftanaz after government forces attacked the town on April 3 and 4. ©2012 Robert King/Polaris

Prosecutions find legal basis in the genocide legislations adopted by most European countries and providing their courts international jurisdiction. About 15 European states have established units dedicated to investigating and prosecuting war and genocide crimes. Over the past decade, authorities in Europe have launched 1,607 international war crimes cases in domestic jurisdictions, including cases on torture, murder, rape, crimes against humanity and genocide, while another 1,339 are ongoing, according to the European Union judicial cooperation agency Eurojust.

In order to build evidence, European authorities are seeking testimony from some of the hundreds of thousands of refugees fleeing Middle East violence, through screening of migrants’ phones or invitations at arrival to testify. The challenge is to identify perpetrators, who may be European citizens who have joined Islamic State - more than 4,000 European citizens are estimated to have left to fight in Syria, of whom around a third have since returned home - others may be militants who have traveled to Europe from Syria or to Europe last year. “You may have lots of victims or witnesses in one place, but you can’t move with a prosecution until you have a perpetrator in your jurisdiction,” said Matevz Pezdirc of the European Union’s Genocide Network.

With both witnesses and perpetrators on their territory, European prosecutors have already brought some cases. A German citizen is on trial for war crimes after Facebook posts showed him posing alongside decapitated heads. Last year, Swedish courts convicted a Syrian on the basis of a video showing him torturing a fellow combatant.

Prosecuting Conflict-Related Sexual Violence at the ICTY

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Prosecuting Conflict-Related Sexual Violence at the ICTYEdited by Serge Brammertz and Michelle Jarvis

Although sexual violence directed at both females and males is a reality in many on-going conflicts throughout the world today, accountability for the perpetrators of such violence remains the exception rather than the rule. While awareness of the problem is growing, more effective approaches are urgently needed for the investigation and prosecution of conflict-related sexual violence crimes. Upon its establishment in 1993, the Office of the Prosecutor (OTP) of the International Criminal Tribunal for the Former Yugoslavia (ICTY) began the challenging task of prosecuting the perpetrators of conflict-related sexual violence crimes, alongside the many other atrocities committed during the conflicts in the former Yugoslavia.

This book documents the experiences, achievements, challenges, and fundamental insights of the OTP in prosecuting conflict-related sexual violence crimes at the ICTY over the past two decades. It draws on an extensive dossier of OTP documentation, court filings, trial exhibits, testimony, ICTY judgements, and other materials, as well as interviews with current and former OTP staff members. The authors provide a unique analytical perspective on the obstacles faced in prioritizing, investigating, and prosecuting conflict-related sexual violence crimes. While the ICTY has made great strides in developing international criminal law in this area, this volume exposes the pressing need for determined and increasingly sophisticated strategies in order to overcome the ongoing obstacles in prosecuting conflict-related sexual violence crimes. The book presents concrete recommendations to inform future work being done at the national and international levels, including that of the International Criminal Court, international investigation commissions, and countries developing transitional justice processes. It provides an essential resource for investigators and criminal lawyers, human rights fact-finders, policy makers, rule of law experts, and academics.

To order the book, click here.