June 2021

Monthly News Updates: Domestic Prosecution of International Crimes - June 2021

By: Alexandrah Bakker, Research Associate, PILPG-NL 

The following post highlights developments from around the world in the domestic prosecution of international crimes.  This month saw developments at all stages of criminal proceedings, including the filing of criminal complaints, the strengthening of national legislation, and long-awaited convictions.

EUROPE

Bosnia and Herzegovina | Constitutional Court rejects appeal against crimes against humanity conviction

Bosnia’s Constitutional Court has rejected Zoran Babic’s appeal against his conviction of crimes against humanity.  Babic is serving a 35-year sentence for murders he committed during the war in the former Yugoslavia.  The Constitutional Court held that the lower courts had not violated Babic’s right to a fair trial after Babic complained that a hearing had taken place in his absence while he was unable to attend for medical reasons. [June 25, 2021]

Switzerland | Federal Criminal Court convicted Alieu Kosiah of war crimes

The Swiss Federal Criminal Court convicted Alieu Kosiah of war crimes for his role as the commander of the United Liberation Movement of Liberia for Democracy (ULIMO) rebel group during the Liberian civil wars of the 1990s.  The Court sentenced Kosiah to 20 years’ imprisonment, the maximum sentence.  This is the first time Switzerland’s civilian jurisdictions heard a war crimes case. [June 18, 2021] 

Germany | Higher Regional Court of Dusseldorf convicts woman of crimes against humanity

The Higher Regional Court of Dusseldorf convicted a German woman, who was a member of ISIS, of crimes against humanity and sentenced her to six-and-a-half years’ imprisonment.  Notably, the Court convicted the woman of persecution on the grounds of gender and religion for crimes committed against enslaved Yazidi women. [June 18, 2021] 

France | Investigating judges indict tech executives for complicity in torture and enforced disappearance

Investigating judges of the Paris Judicial Court’s special war crimes unit have indicted four individuals of complicity in torture and enforced disappearance.  The indicted persons are all executives of the companies Amesys and Nexa Technologies.  They have been under investigation since 2011 when human rights NGOs filed complaints against the companies for selling surveillance technology to the Libyan and Egyptian regimes. [June 17, 2021]

The Netherlands | District Court of The Hague conducts hearings in Syria war crimes case

The District Court of The Hague conducted hearings on the merits in the case of Ahmad Abu-K., a Syrian accused of committing a war crime in 2012 after the discovery of a YouTube video depicting his involvement in the execution of a Syrian officer.  The hearings lasted three days, and the Court will deliver a verdict in early July. [June 15-17, 2021] 

France | Human rights NGO files torture complaint against United Arab Emirates official

The Gulf Centre for Human Rights (GCHR), an NGO based in Lebanon, filed a criminal complaint in France against Major General Ahmed al-Raisi, an official from the United Arab Emirates who is running to be president of Interpol.  The complaint accused al-Raisi of being responsible for the torture of an activist imprisoned in Abu Dhabi. [June 12, 2021] 

Bosnia and Herzegovina | Court of Bosnia and Herzegovina sentenced defendants for crimes against civilians

The Court of Bosnia and Herzegovina sentenced several defendants to serve between five and ten years in prison over the inhumane treatment and unlawful detention of Serb and Croat civilians in 1994. [June 10, 2021]

AFRICA

Liberia | Civil society introduces bill for the establishment of a war crimes tribunal

A group of 15 Liberian civil society organizations introduced a bill in Parliament to establish a tribunal with jurisdiction over crimes committed between 1979 and 2003.  This crucially covers the period between 1989 and 2003, during which two civil wars took place.  To date, there have been few prosecutions for international crimes committed during this time, and most cases have taken place in third states on the basis of universal jurisdiction. [June 24, 2021]

South Africa | Supreme Court of Appeal ruled that a delay in the prosecution of Apartheid-era crimes does not violate the defendant’s right to a fair trial

The Supreme Court of Appeal of South Africa has ruled that a 47-year delay in the prosecution of a former police officer accused of the murder of an anti-Apartheid activist does not violate the defendant’s right to a fair trial.  The delay was the result of political interference, with an initial inquest ruling that the victim had committed suicide in police custody. [June 21, 2021]

The Gambia | Truth, Reconciliation and Reparations Commission public hearings come to an end

The Gambia’s Truth, Reconciliation and Reparations Commission (TRRC) has concluded its public hearings.  It held its first hearings in 2019 and experienced some delays because of the Covid-19 pandemic.  While the TRRC’s mandate is to establish a historical record of human rights abuses in the Gambia between 1994 and 2017, the Commission has the ability to recommend the prosecution of offenders.  In his concluding remarks, Lead Counsel Essa Faal summarized the abuses described by witnesses and labeled them as crimes against humanity.  Faal called for justice to be done, be it in the Gambia or elsewhere. [May 28, 2021]

Subsidiarity and the Margin of Appreciation in Protocol 15 of the ECHR: Substantial or Symbolic Change?

By: Daria Stanculescu, Junior Research Associate, PILPG-NL

On April 21, 2021, Italy ratified Protocol No. 15 (the Protocol) to the European Convention on Human Rights (ECHR, the Convention).  This ratification triggered the entry into force of the Protocol for all member states of the ECHR from August 1, 2021.  The Protocol brings several substantial amendments to the Convention’s provisions with regards to the functioning of the European Court of Human Rights (ECtHR, the Court).  These changes include shortening the time limit for bringing applications to the Court from six to four months, changing the upper age limit for judges, and removing the right of parties to object to the relinquishment of jurisdiction to the Grand Chamber.  Arguably, the Protocol’s most significant amendment is the addition of a reference to subsidiarity and the doctrine of the margin of appreciation in the Convention’s Preamble.  This blog post examines the effects that these references in the Convention’s Preamble will have on the ECHR system after the amendments enter into force on August 1.

Background to Protocol 15

During the Brighton Conference, one of the High-Level Conferences on the Future of the Court aimed at developing strategies for the long-term future of the Convention system, the member states adopted Protocol 15.  It opened for signature on June 24, 2013.  Since the Protocol brought about significant changes to the Convention system, the consent of all 47 member states to the ECHR was made a condition for its entry into force.  

One of the main changes agreed upon at the Brighton Conference was the incorporation of subsidiarity and the margin of appreciation in the Preamble.  The principle of subsidiarity means that the national authorities of the member states of the Convention have the primary task  of ensuring that the rights in the Convention are respected.  The Court should only intervene where domestic authorities fail to protect such rights.  The margin of appreciation is a doctrine developed by the ECtHR in its case law.  It describes the degree of discretion the Court affords states when taking measures at the national level that would otherwise limit or interfere with rights afforded by the ECHR.  In cases where the Court gives states a wide margin of appreciation, it will not engage in a complete review of the substance, but will generally accept the choices made by domestic authorities.

The Effects of the Changes

It can be debated whether the changes introduced by Protocol 15 will have a significant effect on the functioning of the Court.  On the one hand, the insertion of subsidiarity and the margin of appreciation emphasizes the principle that national authorities are primarily responsible for protecting human rights.  They are also responsible for providing remedies for violations or rights.  This may mean that the Court will defer to the national authorities more often, especially when it believes an in-depth assessment of the issue has already been carried out at the national level.  However, it is more likely that the addition will instead contribute to better judicial dialogue between national courts and the ECtHR.  This means that the ECtHR will take into consideration how a case has been handled at national level when issuing judgments.  Judicial dialogue may encourage national authorities to take a more active role in resolving human rights issues at the national level, before they reach the ECtHR.  This, in turn, may contribute to lowering the caseload of the Court, which has been under pressure in recent years due to the number of pending applications before the ECtHR.

On the other hand, it may be argued that the additions will not bring a remarkable change to the Convention system.  Since the Court already makes use of subsidiarity and the margin of appreciation in its case law, the addition of these mechanisms to the Preamble of the Convention may be regarded as merely symbolic.  After all, the ECtHR remains the final interpreter of the Convention. 

Conclusion

Whether the inclusion of subsidiarity and the margin of appreciation in the Preamble of the ECHR will have a notable effect on the functioning of the Court is currently unclear.  These changes may drive the Court to defer to national authorities or lead to closer dialogue between the ECtHR and national courts.  However, these amendments can also be seen as merely symbolic.  It remains to be seen whether the Protocol  will bring any significant changes to the Convention system.  Much of this depends on how the Court applies the newly added principles and whether it will give them more weight now that they are included in the Preamble of the Convention. 

The Criminal Case against Lukashenko before German Courts and the Issue of Immunity

By: Henry Smith, Junior Research Associate, PILPG-NL

A group of ten Belarusians has requested that the German Federal Prosecutor’s Office investigate and prosecute the President of Belarus, Alexander Lukashenko, and other security officials for alleged human rights violations during a police crackdown on protests following presidential elections in 2020.  The victims claim they were subjected to persecution, arbitrary arrests, and torture at the hands of the state police, which amount to crimes against humanity as defined in the Rome Statute of the International Criminal Court and in German law.  On May 26, the German press reported that the Prosecutor would set up a preliminary observation process.

This blog will look at the victims’ claims, the reasons behind filing the case in Germany, and how Lukashenko’s immunity as president of Belarus might affect the German courts’ competence to hear the case against him.

Background of the case

In August 2020, Alexander Lukashenko claimed a landslide victory in the Belarusian presidential elections amid widespread allegations of electoral fraud.   Those allegations were exacerbated by the previous arrest of two of Lukashenko’s opponents who were barred from running ahead of the polls. 

The election results sparked mass protests and people demanding that Lukashenko step down.  Belarusian police responded with violence and repression, arresting around 3,000 people on the first night following the election.  Authorities also temporarily detained Ms. Svetlana Tikhanovskaya, a leading opposition candidate, who refused to accept the result claimed by Lukashenko, and then exiled her to Lithuania.

On December 4, the United Nations High Commissioner for Human Rights (OHCHR) delivered a report at the Intersessional meeting of the Human Rights Council detailing that 27,000 people had been arrested in peaceful public demonstrations, for charges such as violating the public order.  The High Commissioner of Human Rights raised concern for the up to 2,000 complaints of torture and other cruel, inhumane, or degrading treatment that had been lodged with the OHCHR by victims and activists.  Some of the methods described by the claimants include food and sleep deprivation, arbitrary beating, refusal of medical treatment, confinement in small cells, and forcing victims to kneel with their hands tied behind their backs.

The victims’ claims

In their request to the German Prosecutor, the claimants argued that the conduct of Mr. Lukashenko, other state officials, and police officers amounted to crimes against humanity, as defined in Article 7 of the Rome Statute and Section 7 of the German Code of Crimes Against International Law (CCAIL). 

Although the alleged crimes were not committed in German territory, and neither the perpetrators nor the victims are German, the attorneys argued for universal jurisdiction to bring the cases to German courts.  Under universal jurisdiction, the criminal courts of any state may prosecute serious international crimes, such as crimes against humanity, war crimes, genocide, and torture, as established in the Rome Statute and the Convention Against Torture (CAT) and incorporated into the CCAIL. To back their claim, the lawyers referenced the recent decision by the Higher Regional Court of Koblenz, sentencing Syrian officer Eyad Al Gharib to four and a half years in prison for torture and unlawful imprisonment of individuals in Syria, which amounted to crimes against humanity.

Lukashenko’s immunity

The sentence against the Syrian official might be an important precedent for grounding the German courts’ jurisdiction for the prosecution of Belarus security officers.  However, in the case of Lukashenko, it is uncertain how the German prosecutor and the German courts will deal with his immunity as head of state. 

It is a norm of customary international law that states’ high-ranking officials, namely the head of state, the head of government, and the foreign affairs minister, because of their importance in the functioning of the state, have personal immunity before domestic criminal courts of other states.  That means that they cannot be criminally prosecuted in other states for any official or personal acts.  The International Court of Justice (ICJ) confirmed this interpretation of the norm in the Arrest Warrant case (Congo v. Belgium).

There are some commentators, however, that argue that there is an exception to personal immunity in the case of grave international crimes.  According to them, the laws prohibiting grave international crimes are peremptory norms, norms that cannot be derogated from, while the rule of personal immunity is not.  Therefore, they argue that the prohibition against international crimes should prevail over immunity.  However, this argument is not backed by international custom, as concluded in a report by the United Nations’ International Law Commission (ILC).

It might also be possible to argue that Lukashenko is not the legitimate head of state due to the allegations of electoral fraud, and that, therefore, he does not enjoy immunity.  However, this also has little grounding in international law. 

It is possible, therefore, that German courts would dismiss a criminal case against Lukashenko due to his position as president of Belarus.  Nonetheless, as held by the ICJ in the Arrest Warrant case, and noted by the ILC, personal immunity is temporary and ceases when the official leaves office.  Thus, when Lukashenko leaves the presidency, he might be subject to criminal prosecution before foreign courts.

Concluding remarks

In accordance with the precedent set out in the case of Syrian officer Eyad Al Gharib, it is likely that the German courts will assert universal jurisdiction over the alleged crimes committed by security officials in Belarus.  However, with regards to Lukashenko, it is possible that the Federal Prosecutor will only take the case forward after he leaves the presidency, and no longer enjoys personal immunity.

The Afrikaans Language Debate Continues at Stellenbosch …

By: Katherine Grzadkowska, Junior Research Associate, PILPG-NL

Stellenbosch University’s (SU) language policy has, again, come into the forefront of public debate in South Africa.  Earlier this year, reports surfaced that residence leaders told Afrikaans-speaking students not to speak Afrikaans at school events or privately among themselves on campus, and to converse in English instead.  The University has denied that its language policy bans the use of Afrikaans and says that it has investigated and addressed these isolated incidents accordingly.  Nevertheless, the situation has sparked outrage among Afrikaans advocacy groups who believe that SU is unfairly discriminating against Afrikaans-speaking students in an effort to fully anglicize the University.  These groups, along with some SU students, have lodged complaints at the South African Human Rights Commission (SAHRC), which is currently investigating the matter. 

This blog post will examine SU’s language policy from the perspective of international human rights instruments and the South African Constitution.  While Stellenbosch has made significant strides to become a more accessible and inclusive University, banning the use of Afrikaans on campus may infringe on international and constitutional principles concerning minority language rights. 

The Right to Language and Education 

Discrimination on the basis of language is prohibited in a multitude of international/regional treaties and non-binding human rights declarations.  Minority groups are also afforded special protections to not be denied the use of their languages under Article 27 of the International Covenant on Civil and Political Rights (ICCPR).  The Human Rights Council (HRC) has recognized the negative impact that colonization in the past and globalization in the present have had on minority languages across the world, specifically their minimized use in education.  As such, in order to meet international human rights obligations, the HRC has recommended that states provide education in minority languages where it is reasonably practicable to do so according to regional factors and resources.  The Council has also insisted on a broad definition of the term “minority,” which includes any “ethnic, religious or linguistic [group] which constitutes less than half of the population in the entire territory of the state.” 

The right to be educated in a particular language has not been examined in depth by treaty bodies with jurisdiction over the African continent.  However, the African Commission of Human and Peoples Rights has held that states have an obligation to provide certain public services in official languages as set out in their respective constitutions.  Moreover, the Human Rights Committee has found that states should implement non-official languages in public administration where there exists a significant historic minority population, such as the Afrikaans-speaking population in Namibia.

The South African Constitution of 1996 recognizes 11 official languages, all of which enjoy equal status in public administration.  Nine of these languages are indigenous African languages while two, English and Afrikaans, have European origins.  Like the international instruments, the Constitution prohibits discrimination on the basis of languages, and individuals belonging to linguistic groups may not be denied the right to speak their languages.  While today native Afrikaans-speakers make up a minority of about 13% of South Africa’s population, Afrikaans was historically privileged as the dominant language of instruction at many universities.  

For these reasons, Section 29 of the Constitution explicitly recognizes the need to rectify historic inequalities in education and puts a positive duty on the state to ensure that tertiary education is “progressively available and accessible” for all students who wish to pursue it.  Under Section 29, students in South Africa are also afforded “the right to receive education in the official language or languages of their choice” so long as it is equitable and practicable, with special emphasis given to “the need to redress the results of past racially discriminatory laws and practices.” 

Stellenbosch’s 2016 Language Policy 

Stellenbosch was founded as an Afrikaans university in the late 1800s.  However, with the fall of Apartheid, the general rise of English as a global language, and pressure from student protest groups, SU has undergone a substantial shift towards English teaching.  In 2016, Stellenbosch overhauled its language policy from its previous 50/50 English-Afrikaans parallel teaching model to its current formulation making English the predominant language of instruction.  According to the policy’s preamble, these changes were made in light of Section 29 of the Constitution, as English enjoys much wider speakership and preference across South African’s historically disenfranchised black community. 

This change was not greeted kindly by some members of the Afrikaans-speaking community, which saw the shift to English predominance as an infringement of their Constitutional language and education rights.  SU’s language policy was nevertheless upheld by the South African Constitutional Court in 2019, which found that the diminished use of Afrikaans was justifiable under Section 29 since it was aimed at making the University more accessible.  While the Court sympathized with applicants’ concern regarding the general disuse of Afrikaans at South African universities against the “deluge of English,” it held that this was an unfortunate reality faced by minority languages worldwide and not the responsibility of a single university to rectify. 

Analysis 

The present issue at Stellenbosch concerns the use of Afrikaans outside of classrooms, meaning, at school social events as well as in private settings among students.  The language policy provides that “in residences and other living environments, language is used in such a way that, where reasonably practicable, no stakeholder is excluded from participating in any formal activities in these environments.”  While this provision is not in itself infringing, the way it may have been implemented by some University officials could be problematic from a constitutional and human rights perspective.  

The Constitutional Court did not look into student social life in-depth in 2019 but it did mention the University’s past predominance of Afrikaans in “other aspects of campus life, including residence meetings and official University events,” which had exclusionary effects on black students.  Accordingly, SU’s insistence on the use of English for official school activities could be justified as a means of creating a more inclusive environment in school-related activities.  An outright ban for students on campus to converse in Afrikaans would likely go beyond this aim.  As stated by the HRC, “for language rights in private activities, the defining principle would be a laissez-faire approach” where state institutions do not interfere with what languages individuals use when communicating with one another.  This is especially important when the language in question is spoken by a minority group, like Afrikaans native speakers in South Africa. 

Conclusion 

Stellenbosch University’s language policy is laudable as it seeks to remove some of the historic privileges enjoyed by Afrikaans-speaking students to create a more accessible and welcoming environment for its diverse student population.  Yet, if it did, in fact, prohibit Afrikaans on campus, it may have discriminated against a significant segment of its student body. 

Nationality vs. National Origin: A Difference of Interpretation

By: Daria Stanculescu, Junior Research Associate, PILPG-NL

On February 4, 2021, the International Court of Justice (ICJ, the Court) issued its judgment in the case Qatar v. United Arab Emirates.  Qatar brought proceedings against the United Arab Emirates (UAE) for alleged breaches of the Convention on the Elimination of All Forms of Racial Discrimination (CERD).  In parallel, Qatar also brought proceedings regarding the same issue before the CERD Committee, the specialized body that oversees the implementation of the CERD.  While the Committee held that it had jurisdiction in this case, the Court determined that it did not have jurisdiction over the subject matter of the dispute, thus upholding UAE’s first objection on admissibility.  This blog post will examine the differing conclusions of the ICJ and the CERD Committee.

Background of the Case

In 2017, during the Qatar diplomatic crisis, the UAE adopted several measures directed at Qatari nationals.  These included travel bans, expulsions, and suppression of Qatari media outlets.  In response, Qatar instituted proceedings before both the CERD Committee and the ICJ, claiming that the measures discriminated against Qataris based on their nationality.  Qatar argued that the term “national origin”, which is one of the prohibited grounds of discrimination in Article 1 of the CERD, encompasses the concept of nationality.  The UAE, on the other hand, argued that national origin and nationality are two different concepts, and the latter is not covered by the CERD.   

In Qatar v. UAE, the CERD Committee referred to its General Recommendation XXX, in which it asserted that differential treatment based on nationality may constitute discrimination.  It also made reference to its practice of calling on states to address discrimination against non-citizens on the basis of their nationality.  Ultimately, the CERD Committee concluded that it had jurisdiction to examine cases “when confronted with differences of treatment based on nationality”.  The ICJ did not follow the Committee’s interpretation in this case, concluding that it did not have jurisdiction, as current nationality is not covered by the term “national origin” in Article 1(1) CERD.  

 Differing Interpretations 

While the Court is not bound by the decisions of international human rights mechanisms, it has previously emphasized the importance of the interpretations provided by these mechanisms.  In Diallo, the Court interpreted the provisions of the International Covenant on Civil and Political Rights (ICCPR).  In that case, the Court emphasized that it “should ascribe great weight” to the interpretation given to the ICCPR by the Human Rights Committee, the international human rights mechanism that monitors the implementation of that instrument.  The Court asserted that the independent mechanism was established “specifically to supervise the treaty” and that considering the interpretation of human rights mechanisms helps achieve “the necessary clarity and essential consistency of international law”.  

In Qatar v. UAE, the Court diverged from the interpretation provided by the CERD Committee without providing a clear explanation for its differing interpretation.  As pointed out by dissenting Judge Bhandari, the fact that the Court “should ascribe great weight” to the interpretation of the CERD Committee was not taken into account in this case.  Also, dissenting Judge Robinson observed that the Court did not provide an adequate explanation for not following General Recommendation XXX.  The differing interpretation and the lack of an explanation by the ICJ may affect the clarity and consistency of international law that the Court referred to in Diallo.

Conclusion

In Qatar v. UAE, the ICJ came to a different conclusion than the CERD Committee.  This is generally unproblematic since the Court is not bound by the decisions of treaty mechanisms.  However, the ICJ did not provide a clear and sufficient explanation for this differing interpretation.  It remains to be seen whether the Court will provide a more detailed explanation in similar future decisions.