News, developments and trends

29 januari 2020

This month

International Court of Justice and the Rohingya genocide case
Developments in the United States
Intentional starvation as a war crime in non-international armed conflict
Other news you may have missed

Rohingya

Context

Alarming reports on the situation of the Rohingya group in Myanmar led to the UN fact-finding mission on Myanmar (FFMM) in order to establish the facts and circumstances of the alleged human rights violations by military and security forces, and abuses, in particular in Rakhine State, with a view to ensuring full accountability for perpetrators and justice for victims. Later, the UN Independent Investigative Mechanism for Myanmar was established. It is mandated to collect evidence of the most serious international crimes and violations of international law and prepare files for criminal prosecution, making use of the information handed over by the FFMM.

International Court of Justice

On 11 November 2019, the Republic of The Gambia filed an application instituting proceedings against the Republic of the Union of Myanmar concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide. On 23 January 2020 the International Court of Justice, situated in The Hague unanimously indicated the following measures:

(1) The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular: (a) killing members of the group, (b) causing serious bodily or mental harm to the members of the group, (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, and (d) imposing measures intended to prevent births within the group;

(2) The Republic of the Union of Myanmar shall, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide;

(3) The Republic of the Union of Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide;

(4) The Republic of the Union of Myanmar shall submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court.

Continuation

The ICJ has ordered The Gambia to render its written pleading by 23 July 2020 and Myanmar to render its reaction by 25 January 2021.

United States

Trump’s threat to Iran’s cultural heritage

In a tweet dated 4 January 2020 Donald Trump threathened to hit 52 Iranian sites some of which are important to Iran & the Iranian culture if Iran were to attack Americans or US assets in retaliation for the assassination of Qassem Suleimani.

This highly disputed statement is contrary to the stated aims of the 1954 Hague convention and the protocols of the Geneva conventions of 1949 and 1977, the UN resolution 2347 and the international criminal court which considers the destruction of cultural heritage to be a war crime. Even the Law of War manual of the US Department of Defence pays due attention to the protection of cultural property.

Trump pardons

Late 2019 trump pardoned a convicted war criminal, a soldier charged for executing an unarmed Afghan man and a demoted soldier for posing with a corpse.

“While pardons exist in international law, and can properly address issues of injustice or unfairness”, Rupert Colville, Spokesperson for the UN High Commissioner for Human Rights (OCHR) told reporters at a regular press briefing in Geneva that these cases showed no circumstances to suggest anything other than “simply voiding the otherwise proper process of law in the cases”. “These pardons send a disturbing signal to military forces all around the world”, he added.

“International Humanitarian Law establishes the obligation to investigate violations and prosecute war crimes”, reminded Mr. Colville. He pointed out that by investigating the allegations, and initiating and completing criminal proceedings, the US military justice system had been in compliance with international law.

Underscoring that “victims of gross human rights violations and serious violations of international humanitarian law have the right to a remedy”, Mr. Colville maintained that the pardon terminating further criminal proceedings in the case of Major Mathew Golsteyn, was “particularly troubling”. He elaborated that remedies include equal and effective access to justice, the right to the truth, and to see perpetrators serve punishments proportionate to the seriousness of their conduct, “rather than see them absolved of responsibility”.

Read the full story: https://bit.ly/2vwoA58

Intentional Starvation

The International Criminal Court (ICC) will now be able to prosecute as a war crime the intentional starvation of civilians in civil wars. The Assembly of State Parties unanimously approved a Swiss proposal to this effect. This will strengthen protection of victims of war. The ICC has a mandate to prosecute genocide, crimes against humanity and war crimes. Up until now, it could only prosecute intentional starvation of civilians as a war crime in an international armed conflict, but this has now been broadened to include non-international armed conflicts. This might enable future investigations and prosecutions in situations such as in Syria en Yemen. Even in the case countries are not recognizing the Rome Statute, the UN Security Council may decide to refer cases to the ICC.

Read the Swiss press-release: https://bit.ly/38ODKko

Further news:

Documentary “My father the killer”. The BBC´s Valeria Perasso followed relatives of torturers on their journey to become a voice in the ongoing public conversation about human rights to help heal the country – and themselves.
Forthcoming report on psychological torture by UN’s special rapporteur on Torture, Nils Melzer
Interesting article by Balkaninsight: Arkan’s Tigers unpunished 20 years after leader’s death
Ongoing waterboarding hearings at Guantanomo
Event: on 22 January 2020 the Geneva Academy organised a meeting “Surviving Syria’s Gulag: the struggle of Sednaya’s former detainees for Justice and accountability”. The Association of the Detainees and Missing of the Sednaya Prison (ADMSP) is an organization seeking to uncover the truth and serve justice for detainees who were detained in Sednaya prison, recently launched a report on the conditions of detention in this prison. The report highlights the arrest, detention and torture methods used by the Syrian regime’s security apparatus against the detainees and as a means to terrorise the entire society. In this event, organized in cooperation with Amnesty International, Impunity Watch, panelists explored the role of current justice and redress initiatives in the contexts of universal jurisdiction and in the documentation of violations. They also discussed accountability prospects for international crimes committed in Syria from the perspective of victims and international actors. Watch the discussion.
Event: on 29 January 2020 a Book Launch and Discussion was organised: .Border Deaths: Causes, Dynamics and Consequences of Migration-related Mortality, a new book that contributes to highlighting the political nature of border deaths. What is known about border deaths: statistics, causes, identity? How are the bodies of migrants treated? How are the dead, the missing and the unidentified mourned by familiars and strangers? New concepts and perspectives were outlined to provide the first interdisciplinary overview of this contested subject and offer a way to move forward.
Lessons learned: the Ferencz International Justice Initiative launced “Lessons Learned in Preventing and Responding to Atrocities: Rapporteur’s Report” , and “Lessons Learned from the First Generation of UN Investigative Mechanisms for Future Criminal Accountability: Considerations for CSO engagement with the United Nations Independent Investigative Mechanism for Myanmar”
Prevention: the Ferencz International justice initiative launced “Countries at Risk for Mass Killing 2019-2020: Statistical Risk Assessment Results”
Reconciliation: Maarten van Munster and Joris van Wijk discuss Angola’s approach which shifts from “forgive and forget” to “embrace and forget”. The authors address the question of establishing truth and accountability.