Universal Jurisdiction in Ukraine: States should commit to using their own courts to address Russian atrocities

Posted on October 17, 2022 by Mark Kersten

A version of the following article was originally written for the The Global Parliamentary Alliance Against Atrocity Crimes (GPAAAC), an international network of parliamentarians and experts working to ensure democracies act more forcefully in preventing and responding to mass atrocity crimes. GPAAC is an initiative of the Montreal Institute for Genocide and Human Rights Studies and the Konrad-Adenauer-Stiftung. You can follow their work on Twitter here.

Millions of refugees left Ukraine following Russia’s invasion in February 2022 (Photo: Reuters)

The response to the war in Ukraine and the atrocities committed by Russian authorities has been remarkable. During an ongoing, global pandemic that seized the world’s attention and drained national budgets, dozens of states, international institutions, and civil society organizations answered the call for accountability. Yet one avenue to justice has received too little attention: universal jurisdiction, an important piece of the accountability puzzle that could help not only deliver meaningful justice in the country but re-invigorate global justice efforts more broadly. 

Answering the call: Ukraine’s Accountability Landscape 

Just days after President Vladimir Putin ordered the invasion of Ukraine, forty states referred the situation in Ukraine to the International Criminal Court (ICC). Many governments subsequently made significant voluntary contributions to the ICC, sending both funding and investigators to help its operations. Because the ICC does not have jurisdiction of the crime of aggression, numerous states have also thrown their support behind a ‘special tribunal’ or hybrid court that would investigate the Russian and Belarussian figures responsible for Moscow’s illegal invasion. 

National authorities are also investigating the atrocities committed against the Ukrainian people and, at last count, about ten cases have proceeded through Ukraine’s courts. With estimates suggesting that 34,000 war crimes have been documented, more trials are expected soon. 

Beyond international courts and Ukraine’s court system, at least twelve countries have opened investigations into atrocities committed during the war: Germany, Spain, Sweden, France, Lithuania, Canada, Poland, Estonia, Latvia, Slovakia, the United States, and the United Kingdom.

The question is: will these – and other states – exercise their universal jurisdiction powers?

Universal Jurisdiction as part of the Accountability Puzzle 

The doctrine of universal jurisdiction permits foreign states to prosecute alleged perpetrators of international crimes, even if the crimes were committed abroad and even if the victims do not reside in the country in question. States differ on whether they need the accused to be present in the state or not.

While universal jurisdiction is not the solution to addressing the panoply of atrocities committed in Ukraine, it should be part of it. 

Over the past few years, universal jurisdiction experienced something of a revival, especially in Europe, where several states – including France, Sweden, The Netherlands, and Germany – prosecuted alleged perpetrators of atrocities committed in the Syrian civil war. Unlike Ukraine, the investigation and prosecution of international crimes in Syria has been stymied by geopolitics and a lack of political will. Universal jurisdiction is therefore one of the only realistic avenues for Syria’s victims and survivors of international crimes to ever see justice. 

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Posted in Canada, International Criminal Justice, Russia, Ukraine, Universal Jurisdiction, War crimes | Tagged , | 2 Comments

War Crimes in Ukraine: It’s time to move from counting crimes to results in court

Posted on October 3, 2022 by Mark Kersten
(Photo: Reuters)

Since Russia’s full-scale invasion of Ukraine in late February, the number of war crimes that prosecutors in Ukraine have investigated has risen exponentially. In late May, it was 14,000. By July it had gone up to 23,000. Now officials in Ukraine have pegged the number of documented war crimes committed by Russian troops at 34,000.

These ghastly figures illustrate the widespread and systematic nature of crimes committed against Ukrainians. At some point in the near future, justice won’t be measured in the number of atrocities tabulated and counted, but in how many fair and impartial trials of alleged perpetrators proceed through courts.

We have witnessed a steady stream of gruesome revelations evidencing Russian atrocities. Few will forget the images that poured out of Bucha in April, of civilians massacred, their corpses left haphazardly strewn along village streets. Such scenes have become so regular an occurrence that freshly unearthed evidence of mass graves containing civilians in Izyum comes as anything but a surprise. It is par for the course.

War crimes and atrocity are Moscow’s calling card. When Russian soldiers are driven out of Ukrainian villages and cities, they invariably leave behind a trail of horror, the depraved pageantry of invading forces who give little thought to civilian life.

Soon after Russia’s full-scale invasion, Ukraine and its allies, along with international institutions, declared that they would work together to investigate Russian atrocities and prosecute anyone responsible for war crimes, crimes against humanity, and genocide.

Following requests from some 41 states, the International Criminal Court (ICC) opened an investigation into atrocities committed during the war. Numerous countries also opened their own investigations into war crimes perpetrated in Ukraine. 

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Posted in Crime of Aggression, Crimes against humanity, European Union (EU), ICC Prosecutor, International Criminal Court (ICC), Russia, Ukraine, War crimes | Leave a comment

Will Justice catch up with those responsible for Post-Election Violence in Kenya? After the election, it doesn’t look good.

Posted on September 1, 2022 by Mark Kersten
A woman demonstrates during Kenya’s 2007/08 post-election violence (Photo: OHCHR)

Justice was never really on the table during this month’s presidential elections in Kenya. For much – probably most – of the political class, the crimes against humanity committed in the wake of the 2007/08 post-election violence were a thing of the past. Previous promises that justice would be pursued turned out to be empty. Neither of the two top presidential candidates – William Ruto and Raila Odinga – put any meaningful emphasis on the need for accountability or the plight of those whose loved ones were murdered and families displaced. The International Criminal Court (ICC), which had investigated the alleged atrocities in the country, failed to make any headway, with only one trial – relating to the obstruction of justice – still proceeding. Is it time to announce the death knell for justice in Kenya?

A brief reminder: in the wake of the 2007/08 presidential elections, violence erupted along ethnic – and political – lines. The result was that some 1,500 people were killed and over half a million Kenyans displaced. A Truth Commission was convened and, with Kenyan authorities dragging their feet and unwilling to proceed with cases of their own, the ICC opened an investigation.

The Court eventually issued a number of arrest warrants, including for two senior politicians: Uhuru Kenyatta and William Ruto. Fearing prosecution, the two erstwhile enemies allied together under the Jubilee Alliance. In 2013, they became president and deputy president, respectively, and governed the country until earlier this month. Meanwhile, their cases at the ICC collapsed, amidst allegations of witness interference and murder, as well as weak investigations on the part of the Court.

Over this period, Kenya’s government and its allies focused on two claims. The first was that the ICC was an illegitimate court and ‘plaything’ of colonial powers. To this end, Kenyatta’s government hired British public relations experts to spread its word and undermine the standing of the Court.

Kenyatta and Ruto’s second claim was that Kenya was able and willing to investigate any alleged wrongdoing itself. Senior officials, including the Attorney General Githu Muigai, repeatedly stated that Nairobi would set up an International and Organized Crimes Division as part of its judiciary capable of investigating and prosecuting any perpetrators of atrocities. It never happened. What did transpire, however, was that Kenyatta and Ruto stayed in and consolidated their power, as much of the world slowly forgot about the 2007/08 atrocities.

By their second term, however, Ruto and Kenyatta had a falling out. Perhaps their alliance of convenience, hastily put together to establish a united front against the ICC, had lost its relevance.

In this past election, outgoing President Kenyatta endorsed not his deputy but long-time opposition figure Raila Odinga. In the end, at least according to half of the country’s electoral commission, Ruto defeated Odinga. He will thus become Kenya’s next President unless Odinga’s petition challenging Ruto’s win before the Supreme Court is successful. Rather remarkably, this means that the country’s last two heads of state will have been implicated in atrocities and tried, unsuccessfully, at the ICC.

Where does that leave justice and accountability efforts in Kenya?

Exactly as they were. There is no reason to believe that a Ruto government will show any interest in revisiting, let alone doing something, about the rights violations committed in 2007/08.

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Posted in International and Organized Crimes Division of Kenya, International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC, Raila Odinga, Uhuru Kenyatta, William Ruto | Leave a comment

Rebraiding Frayed Sweetgrass: The Spectacle of Residential School Exhumations and Invisible Anti-Indigenous Atrocity Violence in Canada 

Posted on August 29, 2022 by Mark Kersten
“Every Child Matters” mural on Commercial Street, Vancouver, Canada (Photo: Jeff Cutler)

Alyssa Couchie and Randle DeFalco join JiC for this guest post on atrocity violence against Indigenous people and communities in Canada. Alyssa is a JD Candidate at the University of Hawai‘i at Mānoa William S. Richardson School of Law and proud member of the Nbisiing Anishnaabeg (Nipissing First Nation). Randle is Assistant Professor of Law, University of Hawai‘i at Mānoa William S. Richardson School of Law. He was born and raised on the traditional territories of the Mississauga and Haudenosaunee nations in Ontario, Canada. The authors would like to note that the term Indigenous is used throughout this post to encompass First Nations, Métis, and Inuit peoples that reside within the territory known as Canada. While we use this term for clarity and brevity, it is important to acknowledge the many complexities and power dynamics tied into such nomenclature. See here for more on this topic.

Sweetgrass or wiingaashk, the hair of Mother Earth, is a sacred medicine to many Indigenous peoples of North America. Sweetgrass is traditionally divided into three sections and woven into a braid creating strength. Indigenous peoples are much like the sweetgrass braid where individual, family, and community are the three strands. All three were once woven together, united and strong. Generations of violence perpetrated against Indigenous children through their forcible transfer to Indian Residential Schools (IRSs) and exposure to other oppressive systems, such as Canada’s child welfare system, has left this communal braid frayed and in danger of coming apart. While Canada’s setter-colonial government and peoples have begun to recognize this violence, in this post we share our concerns that this recognition continues to be too limited and too narrow in scope to foster the sustained, large-scale regenerative steps necessary to repair Indigenous communities.

The Horror of Mass Grave Exhumations

On 1 June 2021, the Tk’emlups te Secwepemc community confirmed that they had located the remains of 215 children on the grounds of the former Kamloops IRS in British Columbia by using ground penetrating radar. Many other Indigenous communities throughout Canada have since made similar announcements. Others are in the process of locating and exhuming numerous mass graves on or very close to former IRS sites across the country.

These exhumations have forced a greater acknowledgement of the harms committed against Indigenous communities perpetrated by the Canadian government and the various religious organizations, such as the Catholic Church, that ran the day-to-day operations of IRSs. The horrific nature of these mapping and exhumation efforts almost immediately led to discussions oriented around the idea that Canada faced (yet another) “reckoning” for its “long-hidden brutal history” in relation to the treatment of Indigenous peoples. To some extent, this forecasting of a new reckoning has proven true. A few days after the announcement of finding remains at the Kamloops IRS, Canadian Prime Minister Justin Trudeau publicly accepted the 2019 finding of the National Inquiry into Missing and Murdered Indigenous Women and Girls(National Inquiry) that “what happened amounts to genocide.” Then, in early 2022 the Canadian government announced that a forty billion dollar settlement had been reached–the largest in Canadian history–with various Indigenous organizations. The settlement stemmed from numerous anti-Indigenous abuses, including the discriminatory treatment of Indigenous children residing on reserve by government-affiliated child welfare programs for decades.

The Limitations of Horrific Spectacles in the Recognition of Atrocity Violence

The horrific aesthetic spectacle of these recent mappings and exhumations have both forced greater acknowledgement of atrocities committed against Indigenous peoples in Canada, and continued to limit the scope of such recognition to focus myopically on the IRS system. In some respects, the recent settlement and other forms of official acknowledgment of the harms suffered by Indigenous communities, such as Canada’s Truth and Reconciliation Commission (TRC) and the National Inquiry, represent a step forward in recognizing and addressing the harms caused to Indigenous peoples through the settler-colonial process. This recognition, however, remains focused on a narrow, highly visible subset of harms and forms of violence, especially those committed at residential schools. Other, less obvious forms of settler-colonial atrocity violence remain largely overlooked, even when intimately connected to the IRS experience. As discussed below, we believe the harms occasioned against Indigenous peoples through Canada’s child welfare system represents one such unspectacular and overlooked form of atrocity that in actuality, is inextricably intertwined with the worst abuses of the IRS system.

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Posted in Canada, Human Rights, Indigenous Peoples, International Criminal Justice, Residential Schools, Transitional Justice | Tagged , | Leave a comment

International justice for Ukraine shouldn’t distract from the ICC’s role in contributing to justice efforts in Africa

Posted on July 18, 2022 by Mark Kersten

The following post was written by Mark Kersten and Mohamed Othman Chande, Chairperson of the Africa Group for Justice and Accountability and former Chief Justice of Tanzania. A version of it was published for Al Jazeera, on International Justice Day, 2022.

The premises of the International Criminal Court (Photo: The Diplomat)

For many years, the International Criminal Court (ICC) was pilloried with allegations that it was biased against African states and unfairly targeted African leaders. The charges were severe and rife. They came from journalists, academics and state leaders – some of whom, it should be stressed, were more worried about their own alleged involvement in atrocities than the impartiality of the Court. Greater equality in the global distribution of accountability for international crimes – war crimes, crimes against humanity and genocide – is desperately needed.

The 17th of July is International Justice Day. It commemorates the anniversary of the adoption of the Rome Statute of the International Criminal Court. It is also a useful moment to reflect on just how international international justice is.

Accountability for mass atrocities is far from evenly distributed. To paraphrase the former U.S. War Crimes Ambassador-at-Large Stephen Rapp, when it comes to international crimes, there is only some justice in some places for some people some of the time. It was just last month that the ICC finally issued warrants for non-African nationals, citizens of the Russian-backed territory of South Ossetia; they are charged with war crimes and crimes against humanity committed during the 2008 war in Georgia.

The ICC has only investigated a handful of situations and prosecuted even fewer. Part of that is because the Court is limited in its resources and reach. For years, states have nickel-and-dimed the institution and limited its budget. In response to alleged government crimes being investigated by the ICC, some states, like Burundi and the Philippines, have frustrated the ICC’s ability to investigate crimes by withdrawing their membership from the Court. Others, including the United States, have waged sophisticated campaigns to undermine the institution’s standing and authority.

In this context, the recent commitment of the Court and many of its member-states to investigate and prosecute those responsible for mass atrocities following the Russian invasion of Ukraine is welcome. Numerous capitals have offered not only unprecedented financial support in the form of voluntary donations, but also their own investigators to help the ICC in its probe. Never before in the Court’s history has it enjoyed such tangible support. Even Washington has spoken positively of the ICC’s role in addressing atrocities in Ukraine.

The focus on the situation in Ukraine and, in particular, perpetrators from Russia may have the effect of undermining the narrative that the ICC is singularly focused on Africa. At the same time, the Court’s welcome attention on atrocities committed in Ukraine should not distract it from contributing to justice efforts on the African continent in a manner that respects the efforts of African states to address their own atrocities and is sensitive to local contexts. It can do so by pursuing accountability itself or by working with partners to galvanize states to do the hard work of holding perpetrators to account in their own courts.

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Posted in Africa, Africa Group for Justice and Accountability (AGJA), Boko Haram, Darfur, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Libya, Libya and the ICC, Nigeria, Russia, Sudan, Ukraine | Tagged | 3 Comments

Russian Control? State Attribution for Internationally Wrongful Acts committed by Individuals in Georgia

Posted on July 7, 2022 by Mark Kersten

The following is a guest post by Ananya Mukherjee, a graduate of the West Bengal National University of Juridical Sciences, Kolkata who currently works with the Indian Institute for Human Settlements on higher education policy in India. Ananya is also an incoming MPA candidate at Columbia University.

(Photo: Russian soldiers leaving South Ossetia following the 2008 war with Georgia. AP/Atlantic Council)

In 2016, and for the first time since its inception, the International Criminal Court (ICC) opened an investigation into activities involving non-African states. The ICC is investigating alleged crimes against humanity and war crimes committed in Georgia during an international armed conflict (IAC) between July and October 2008. In June 2022, the ICC issued three warrants of arrest for Russian-backed officials from South Ossetia on allegations of war crimes committed during the war. The 2008 Georgian War involved a combination of inter-state and intra-state conflicts. The current post deals with the conflict between the Georgian military, on one hand, and the South Ossetian and Abkhaz military units on the other.

The ICC’s mandate to prosecute and hold individuals responsible for gross humanitarian law violations may be triggered in case of war crimes committed during an IAC. For the conflict between the Georgian, and the Abkhaz and South Ossetian forces to be considered international, it is crucial to demonstrate Russian influence over such forces. Georgia contends that “Russia exercised sufficient control over the Abkhaz/South Ossetian forces”. Russia claims otherwise.

The challenge of attributing internationally wrongful acts committed by individuals to a ‘state’ is resolved through internationally recognized tests of control. This post analyses the two most widely accepted modes of attribution: theeffective control test and overall control test. In “The General Theory of Law and State”, Hans Kelsen remarked that the effective control test is conventionally adopted for determining state attribution and attracting the international legal responsibility of state(s). This stringent test was put forth by the International Court of Justice (ICJ) in the Nicaragua case. Finding it to be unpersuasive, the International Criminal Tribunal for the Former Yugoslavia (ICTY) developed the overall control test in the case of Tadic.

Distinguishing the Control Tests

The ICJ in Nicaragua examined the United States’ responsibility for acts of paramilitary groups or contras on Nicaraguan territory. To attract responsibility under this test, the state shall have, in addition to paying or financing the private actors and coordinating or supervising their activities, issued specific instructions to the individuals for the unlawful acts. The requirement of “specific instructions” for each “internationally wrongful act” is where this test often comes unstuck. For instance, the lack of evidence of America’s involvement in directing / instructing the contras led to it ultimately escaping international responsibility.

Conversely, the ICTY laid down a new method of attribution in Tadic. It relied on the case of Loizidou v Turkey, which related to Turkey’s supposed responsibility in denying a party access to private property located in Northern Cyprus, which was under Turkish rule at the time. The European Court of Human Rights (ECHR) held that it was not necessary for Turkish authorities to exercise “detailed control over specific policies and actions” over the Turkish Republic of Northern Cyrus to establish Turkey’s responsibility. In Tadic, the overall control test not only dealt with equipping, financing or training, and providing operational support to a group, but also coordinating or helping in the general planning of its military or paramilitary activities. The ICTY held that,“If it is under the overall control of a State, it must perforce engage the responsibility of that State for its activities, whether or not each of them was specifically imposed, requested or directed by the State.”

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Posted in Georgia, Guest Posts, International Humanitarian Law, International Law, War crimes | Leave a comment

Money Laundering is predicated on Human Rights Violations. It should be treated as such.

Posted on June 25, 2022 by Mark Kersten

A version of the following was article was originally published at the Globe and Mail.

(Image: The Globe and Mail)

 The long-awaited Cullen Commission’s final report into money laundering in British Columbia, released this month by B.C. Supreme Court Associate Chief Justice Austin F. Cullen, was as devastating as it was illuminating. In the coming weeks, experts and policy-makers will decipher the report and make pronouncements on how provincial governments and Ottawa can better prevent and prosecute money laundering. In doing so, however, they must consider the many ways in which money laundering is not just an economic crime, but a human rights issue. Money laundering is not a victimless crime.

In its 1,800 pages of facts and findings, the Cullen Commission concluded that the laundering of billions of dollars had gone “unchecked” since at least 2012, that successive B.C. governments had ignored the problem, and that the RCMP’s efforts to investigate money laundering were woefully inadequate. While the commission did not focus on human rights, understanding how money laundering is a human rights issue is a crucial step if authorities are to wake up to the harm this crime does and adequately address it.

In my work on political violence and mass atrocities, money laundering comes up regularly as a commonplace transnational organized crime, one that fuels human rights abuses. It is not unusual for people to assume that money laundering primarily happens in countries with inadequate legal frameworks, porous regulations, long-standing corruption, and weak rule of law. But that is far from the truth.

Terrorists, traffickers, autocrats and corrupt foreign politicians see Canada as an ideal place where they can hide and “clean” their ill-gotten gains.

According to testimony given to the Cullen Commission by professor Jason Sharman of the University of Cambridge: “As a multicultural society with a large stable financial sector, there’s temptation for foreign corrupt officials to use the Canadian financial system or perhaps bits of it, like Canadian shell companies, to help in laundering money derived from corruption offences committed in other countries.” A 2019 U.S. State Department report listed Canada alongside China and Afghanistan as a “major money laundering country.” Money laundering in Canada even has its own name: “snow-washing”.

Canadian institutions have been ignoring their complicity for a long time. Years ago, an investigator told me that a Canadian bank he had worked for had willfully ignored his advice to reject the business of an alleged organized criminal from a foreign state who had reportedly been involved in violent crimes. It was shocking, but not surprising. As “one-stop shops” welcoming dirty money, Canadian banks have profited from money laundering for years, and done little to address it. Canada is known in international crime circles as a safe place for money launderers, where questions often won’t be asked and evidence of the criminal sources of funding will be regularly ignored.

Canada is open for business and closed for accountability.

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Posted in Canada, Human Rights, Money Laundering | Leave a comment

Investigating all atrocities, including any committed by Ukrainian soldiers, can undercut Putin’s war crimes propaganda

Posted on June 13, 2022 by Mark Kersten
A war crimes investigator in Ukraine (Photo: Deusche Welle)

According to Ukraine’s Prosecutor General Iryna Venediktova, 15,000 alleged war crimes have been reported since Russia’s invasion of Ukraine three months ago. Hundreds more are being reported every day. The numbers reflect the brutal toll of Russia’s invasion. In response, Kyiv, its allies, and the International Criminal Court (ICC) have launched investigations into possible atrocities committed in Ukraine. All, however, are mum on whether they are investigating alleged war crimes committed by Ukrainian forces. It is in Kyiv’s interest to ensure that all alleged atrocities committed are thoroughly investigated and prosecuted, including any that its own soldiers may have perpetrated.

The decision of Western states and the ICC to investigate Russia’s crimes represents a sliver of humanity in the face of Moscow’s unspeakable cruelty and capacity for atrocity. To a far lesser extent than allegations levied against Moscow, there have been reports of war crimes committed by Ukrainian forces as they seek to repel Russia’s invasion and occupation of Ukrainian territory. Human Rights Watch, for example, offered evidence of Russian prisoners of war being beaten and shot by Ukrainian forces. Prior to Russia’s invasion, the ICC Prosecutor also determined that Ukrainian government forces had committed crimes against detained Russian and Russian-backed soldiers, albeit less severely than those committed by their counterparts.

Even in the most asymmetrical conflicts, it is never the case that only one side commits atrocities. The nature of war breeds excesses, ones felt most directly and brutally by civilians. Yet states and international organisations have a hard time investigating and prosecuting those parties they believe are on the “good” side of war, especially in the case of ongoing conflicts.

The ICC, for example, has the propensity of only investigating and prosecuting one party to a conflict. Historically, the Court’s Prosecutor has chosen a party – most often the winning side or one which Western powers support – and investigated its enemies.

In Ukraine, ICC Prosecutor Karim Khan has been eager to demonstrate his solidarity with Ukraine, traveling to the country and appearing with government officials, including President Volodymyr Zelenskyy, while noting that Russia has declined to cooperate with the ICC. He has also illustrated his keen interest in working with Western powers that are investigating Russian atrocities and who have earmarked funds to investigate Moscow’s alleged crimes. It is with these powerful states that momentum on justice resides.

The ICC Prosecutor’s very public siding with Ukraine and Western powers has some supporters of the Court anxious. For example, Céline Bardet of We Are Not Weapons of War has articulated that “[t]he war in Ukraine … carries the risk that the ICC could pay a high price, in the medium or long term, for not clearly establishing safeguards against being seen as a tool of one side.”

Few believe that the ICC will bring forward allegations against Ukrainian soldiers or authorities, even if doing so is found to be warranted. Just weeks into the war, the Court announced arrest warrants for another situation: the 2008 war in Georgia. Despite allegations of atrocities committed on all sides of that conflict, each ICC warrant was for a Russian-backed official from South Ossetia.

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Posted in International Criminal Court (ICC), International Criminal Justice, Russia, Ukraine, Vladimir Putin, War crimes | 3 Comments

Calling abuses against migrants in Libya what they are: war crimes and crimes against humanity

Posted on May 17, 2022 by Mark Kersten

The following is the second installment of a two-part guest post on atrocities against migrants by Alessandro Pizzuti and Alice Giannini. Alessadro is the co-founder of UpRights. Alice is a lawyer and PhD student in criminal law at the Universities of Florence and Maastricht and the Head of StraLi’s Cyber Team and a member of the International Criminal Law team.

(Photo: AFP)

In the first part of this post, we reconstructed some of the challenges behind the International Criminal Court (ICC) Prosecutor’s conclusion that the abuses against migrants in Libya may qualify as war crimes and crimes against humanity. This second post will focus on some of the implications underlying such a conclusion in terms of responsibility and duties of states to prosecute such crimes.

Background

The war crimes and crimes against humanity suffered by migrants in Libya’s Department for Combating Illegal Immigration (DCIM) Detention Centres are the result of a cyclical violence. From a purely causal perspective, such crimes are predicated on the contributions of multiple actors, which include: (i) traffickers and smugglers facilitating the journey to Libya; (ii) armed groups in charge of DCIM detention centres directly responsible for abuses; (iii) staff of Libyan Coast Guard (LCG) ensuring the interception and transfer of migrants to detention centres; and (iv) European actors assisting the LCG to redirect migrants to Libya.

The contribution of European actors – including Italian and Maltese authorities – in bolstering the ability of the LCG to intercept migrants at sea through the provision of assets, equipment, maintenance, and trainings, has been attested to by multiple reports of international organisations and NGOs. These include the UN Secretary-General (here, paras.18-21, here, para.21), OHCHR (here, p.23), UNSMIL (here, pp.14-15), the COE Commissioner for Human Rights (here, pp.20-21 and here, pp.23-24),  Amnesty International (here, pp.9-14 and here, pp.11-13, 22-24), and ECCHR/FIDH/LFJL (here, pp.41-46). Official documents from the Italian MFA confirmed the role of Italian officials in coordinating the LCG during rescue missions (here, p.24).

State responsibilities and duties to punish international crimes 

While the qualification of the crimes committed against migrants in Libya as war crimes and crimes against humanity has symbolic value, it also carries very specific practical implications. Once these abuses are elevated – qualitatively or quantitatively – to the status international crimes, they are no longer confined within the sometimes artificial schemes of (extra)territorial jurisdiction and admissibility that govern human rights violations. This is especially important when such crimes are the result of conduct that is committed across national borders or which occur in failed States.

Since it engages personal, rather than State responsibility, international criminal law transcends state borders. It reconstructs the fragmented picture offered by the jurisdictional paradigm of human rights obligations of States into a more composite and plain dynamic. This dynamic is based on the effects of individual contributions to specific crimes, considered as whole. Under the ICC legal framework, such contributions are articulated through the modes of liability set out in Article 25(3) of the ICC Statute.

In the case of the crimes committed against migrants in Libya, specific emphasis should be put on Article 25(3)(d)(ii) of the ICC’s Rome Statute, which criminalises any form of contribution to the commission of a crime under the ICC Statute by a group with a common purpose provided in the knowledge of the group’s intention to commit the crime. Considered a residual form of accessorial responsibility, Article 25(3)(d) focuses on the assistance, either internal or external, to a group of persons acting with a common purpose. In terms of the actus reus and mens rea, the requirements of Article 25(3)(d) of the Statute are lower than the other forms of liability set forth in Article 25(3).

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Posted in European Union (EU), Immigration, Libya, Libya and the ICC, Migration, Refugees | Tagged , | 1 Comment

Crimes against migrants and asylum seekers in Libya: Here’s how the ICC Has Jurisdiction

Posted on May 6, 2022 by Mark Kersten

Alessandro Pizzuti and Alice Giannini join JiC for this two-part guest post the International Criminal Court and its possible investigation into crimes committed against migrants in Libya. Alessadro is the co-founder of UpRights. Alice is a lawyer and PhD student in criminal law at the Universities of Florence and Maastricht and the Head of StraLi’s Cyber Team and a member of the International Criminal Law team.

Migrants off the shore of Libya in 2017 (Photo: AP)

On 28 April 2022, during a regular briefing to the UNSC on the situation in Libya, the Prosecutor of the International Criminal Court (ICC) reported that crimes committed against migrants in Libya may amount to crimes against humanity and war crimes and fall within the ICC jurisdiction. Never before had the Prosecutor been so clear on the nature of these crimes or his Office’s intention to pursue such a line of investigation. These conclusions are consistent with the Article 15 Communication filed on 17 January 2022 by UpRights, Adala for All, and StraLi, referred in the Prosecutor’s report. In this two-part blog post we first address the key role of the nexus between the crimes and the conflict in Libya. This will serve to assess, on one hand, the qualification of the crimes committed against migrants as war crimes and, on the other hand, the ICC’s jurisdiction. In our second piece, we address the potential implications of the identification of such conduct as international crimes.    

As reflected in our January 2022 Communication, the Libyan conflict has deeply affected the migration dynamics in the country (Communication, paras.24-117). Originating from the 2011 revolution, the conflict has been characterized by a lack of a functioning government and the proliferation of armed groups. The specific characteristics of the Libyan crisis have been fuelled continuous unrest, which enabled armed groups to perpetrate crimes against migrants in detention centres.

It is in this context that the mass migration through Libya towards Europe has allowed for an already vulnerable population to become the subject of international crimes. Indeed, the fragmentation of power shaped the smuggling/trafficking industry in Libya. Between 2012 and 2017, armed groups used their position to gradually take over the business of operating detention centres, including those under the nominal control of the Department for Combatting Illegal Migration (DCIM). From 2017 onwards, with growing pressure from European States to stem migration flows from Libya, the same armed groups re-focused their activities on migration control, using DCIM detention centres to prevent migrants from crossing the Mediterranean Sea.

War crimes

The abuses committed against migrants in DCIM Detention Centres between 2017 and 2021 qualify as war crimes (Communication, paras.129-402). The Communication identifies as concrete examples six DCIM Detention Centres where such crimes have allegedly been committed: Abu Salim, Tarik al-Matar, Tarik al-Sikka, Al-Mabani, Tajoura, and Al Nasr. These centres are under the effective control of armed groups and have hosted thousands of migrants, a large part of whom were intercepted at sea by the Libyan Coast Guard, and who have been subject to regular violence and abuses. Being closely linked to the conflict in Libya, these abuses meet the requirements provided under Articles 8(2)(c) and (e) of the Rome Statute.

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Posted in ICC Prosecutor, Immigration, International Criminal Court (ICC), Libya, Libya and the ICC, Migration, Refugees | Tagged , | 3 Comments