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Situations under Preliminary Examination: Recent News and Statements
07 Oct 2011
Please find below information regarding developments in some of the situations currently under preliminary examination by the Office of the Prosecutor (OTP) of the International Criminal Court (ICC).
To date, the ICC has opened investigations in seven situations: the Central African Republic; Darfur, Sudan; Uganda; Democratic Republic of Congo; Kenya; Libya; and Côte d’Ivoire. In addition, the ICC Office of the Prosecutor has made public that it is examining information about a number of situations around the world in order to determine whether an investigation should be opened. According to public and official statements by the ICC, the OTP is looking into alleged crimes committed in Afghanistan, Colombia, Georgia, Guinea, Honduras, Republic of Korea, Nigeria and Palestine. To date the OTP has published the conclusions of its preliminary examination into alleged crimes committed in Iraq and Venezuela.
This message includes Coalition members' statements and related news regarding ICC preliminary examinations in Afghanistan (I), Colombia (II), Georgia (III), Guinea (IV) Nigeria (V), North Korea (VI), and Palestine (VII), as well as members' statements on Syria and Sri Lanka (VIII), currently not under ICC investigation.
Please take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the Coalition will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.
For additional information you may refer to the Coalition's website at www.coalitionfortheicc.org
A. COALITION MEMBER STATEMENTS
1. “No peace without justice in Afghanistan,” Joint media statement, FIDH - Armanshahr/Open Asia, 7 October 2011, http://www.fidh.org/No-peace-without-justice-in
“ … Since 2001, thousands of civilians have died in the course of operations and raids by either the international coalition troops or the Taleban insurgents. The perpetrators have enjoyed total impunity in the absence of any independent and public monitoring. In addition, it has been ascertained that secret detention centers, where torture is widely practiced, have been established by some countries leading the international coalition. All those responsible for such war crimes need to be brought to justice under the international law.
The Prosecutor of the International Criminal Court (ICC) has, for this purpose, been undertaking preliminary investigations since 2007 into the alleged crimes committed by all actors in Afghanistan, including the international forces. Afghanistan has been a State Party to the ICC Statute since February 2003.
Many documents, including UN reports, prove that the Taleban and their allies have been the main perpetrators of exactions and other human rights abuses targeting civilians since 2001. The present situation somehow recalls the pre-2001 period when the Taleban were in power. In the absence of a functioning judiciary and with the proliferation of parallel informal justice systems, the following violations are continuously reported: extra-judicial killings, torture, persecution against women and minorities, human trafficking...
… The ongoing political process that aims at reconciling with Taleban insurgents at any price is dangerous. It may exclude from the negotiation table the supporters of a democratic Afghanistan where justice and respect for human rights would be pursued above all. There is no hope for democratic principles and institutions to take root if the perpetrators of war crimes and atrocious acts are not brought to justice. There can be no peace without justice.
The Afghan people deserve more attention to protection of their fundamental rights and prosecution of war criminals. This should be clearly reflected in the upcoming agreements that will emerge from the Bonn conference on December 5.Taking into consideration the fragility of the current Afghan government and its growing lack of legitimacy, the responsibility of the international community in ensuring that human rights will receive full and effective protection in Afghanistan is a must. The United Nations and the NATO member countries, who have been part and parcel of the conflict and bear direct and indirect responsibility, have an even greater duty to see to it that Afghan people’s human rights are not sacrificed for political expediency.”
2. “Afghanistan: Rein in Abusive Militias and Afghan Local Police: Transition Should Avoid Shortcuts and Base Security on Human Rights,” media release, Human Rights Watch, 12 September 2011 , http://www.hrw.org/news/2011/09/12/afghanistan-rein-abusive-militias-and-afghan-local-police
“Militias and some units of the new US-backed Afghan Local Police are committing serious human rights abuses, but the government is not providing proper oversight or holding them accountable, Human Rights Watch said in a report released today. The Afghan government and the US should sever ties with irregular armed groups and take immediate steps to create properly trained and vetted security forces that are held accountable for their actions.
The 102-page report, “‘Just Don’t Call It a Militia:’ Impunity, Militias and the ‘Afghan Local Police,’” documents serious abuses, such as killings, rape, arbitrary detention, abductions, forcible land grabs, and illegal raids by irregular armed groups in northern Kunduz province and the Afghan Local Police (ALP) force in Baghlan, Herat, and Uruzgan provinces. The Afghan government has failed to hold these forces to account, fostering future abuses and generating support for the Taliban and other opposition forces, Human Rights Watch found.
... Cases investigated by Human Rights Watch raise serious concerns about Afghan government and international efforts to arm, fund, vet, and hold accountable irregular armed groups. ... In most cases of serious abuses documented by Human Rights Watch in Kunduz, no action had been taken against those responsible.
… Human Rights Watch called on the US and Afghan governments to avoid the rush to set up new units of the ALP around the country without proper vetting, oversight, and accountability mechanisms, as has occurred with some units.
Human Rights Watch also urged the Afghan government to investigate all allegations of abuse by militias and the ALP, to allocate adequate resources to investigate complaints, and to create an external complaints body to act on reports of abuses by the ALP and other police forces. …”
3. “Just Don’t Call It a Militia”, HRW, 12 September 2011, http://www.hrw.org/reports/2011/09/12/just-don-t-call-it-militia-0
B. RELATED NEWS AND OPINIONS
1. “Afghans seek trial of war criminals,” Pakistan Observer, 7 September 2011, http://pakobserver.net/detailnews.asp?id=112838
2.“Afghanistan militias and police 'committing abuses'”, BBC news, 12 September 2011, http://www.bbc.co.uk/news/world-south-asia-14883253
3. “US-backed Afghan militias accused of human rights abuses,” by Jeremy Kelly, Guardian, 12 September 2011, http://www.guardian.co.uk/world/2011/sep/12/us-backed-afghan-militias-abuses
A. COALITION MEMBER STATEMENTS
1. “Colombian authorities fail survivors of sexual violence,” Amnesty International, 21 September 2011, http://amnesty.org/en/news-and-updates/report/colombian-authorities-fail-survivors-sexual-violence-2011-09-21
“The Colombian authorities have failed to tackle the lack of justice for women and girl survivors during the country's long-running armed conflict, Amnesty International said in a new report today.
"Women and girls in Colombia are often treated as trophies of war. They are raped and sexually abused by all the warring parties as a way to silence and punish them," said Susan Lee, Americas Director at Amnesty International. "Since President Santos took office in 2010, the government has made clear commitments to tackle the human rights crisis but we have yet to see real improvements in bringing to justice those responsible for human rights abuses, such as sexual violence against women."
Amnesty International's report, 'This is what we demand. Justice!' Impunity for sexual violence against women in Colombia’s armed conflict, documents how the rights of survivors of sexual violence to truth, justice and reparation continue to be denied by the authorities.
The lack of reliable official statistics, and the fear around reporting such crimes, make it very difficult to evaluate the true scale of the problem. The statistics available do not clearly indicate cases of sexual violence against women and girls that may be conflict-related. In 2010, the National Institute of Legal Medicine and Forensic Science carried out 20,142 examinations into suspected cases of sexual violence, compared to 12,732 in 2000. But only 109 of these were classified as being related to the conflict, underlining the invisibility of such crimes.
Even when women muster the courage to report a case of rape or sexual violence, these are rarely investigated effectively. Barriers to justice include a historical lack of political will to combat impunity, ineffective protection measures for witnesses and survivors, poor gender training for judicial officials, and a lack of definitions in the national legislation on rape as a crime under international law…”
2. “'This is what we demand, justice!’ Impunity for sexual violence against women in Colombia's armed conflict,” Amnesty International, 21 September 2011, http://www.coalitionfortheicc.org/documents/This_is_What_We_Demand_Justice_AI_Report.pdf
B. RELATED NEWS AND OPINIONS
1. “Amnesty: Colombian women treated as 'war trophies'” by Arturo Wallace, BBC News, 21 September 2011, http://www.bbc.co.uk/news/world-latin-america-14988443
2.“El vicepresidente colombiano pide evitar la justicia paralela en las violaciones de los DD.HH.” EFE, 29 August 2011, http://www.que.es/ultimas-noticias/internacionales/201108292236-vicepresidente-colombiano-pide-evitar-justicia-efe.html (In Spanish)
3. “'Si Justicia y Paz fracasa, CPI podría intervenir': fiscal española” El Tiempo, 17 August 2011, http://www.eltiempo.com/justicia/si-justicia-y-paz-fracasa-cpi-podria-intervenir-fiscal-espanola_10175289-4
4. “House president warns of ICC intervention in paramilitary processes,” Natalie Dalton, Colombia Reports, 12 September 2011, http://colombiareports.com/colombia-news/news/18928-house-president-warns-for-icc-intervention-in-paramilitary-processes.html
A. EU STATEMENTS
1. “Statement by the spokesperson of EU High Representative Catherine Ashton on the elections in the breakaway region of Abkhazia in Georgia,” European Union, 27 August 2011, http://consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/124445.pdf
“In view of the reports today from Sukhumi in the breakaway region of Abkhazia in Georgia, that Mr. Alexander Ankvab has been elected as new president, this statement is to recall that the European Union does not recognise the constitutional and legal framework within which these elections have taken place.
The European Union reiterates its support to the territorial integrity and sovereignty of Georgia, as recognised by international law. The European Union would in this context like to emphasize the importance of the Geneva International Discussions in ensuring the security and stability in the region.”
2. “Statement by High Representative Catherine Ashton on the appointment of Philippe Lefort as EU Special Representative for the South Caucasus and the crisis in Georgia,” European Union, 26 August 2011, http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/124435.pdf
“Catherine Ashton, the High Representative of the Union for Foreign Affairs and Security Policy/Vice-President of the Commission, welcomed the appointment of Philippe Lefort as European Union Special Representative for the South Caucasus and the crisis in Georgia.
‘I am very pleased that we are appointing Philippe Lefort to this important position. Philippe Lefort has an in-depth knowledge of the region and years of experience working there at the very highest level. I am confident that he is an ideal choice for the EUSR for the South Caucasus and the crisis in Georgia and that he will enhance the EU's role in this sensitive region.’….”
B. RELATED NEWS AND OPINIONS
1. “Georgia takes Russia to court over 2008 war” by Alex Steffler, Ria Novosti, 23 September 2011, http://en.ria.ru/papers/20110923/167071438.html
2. “EUMM: 'No Evidence of Any Planned Provocation',” Civil Georgia, 25 August 2011, http://www.civil.ge/eng/article.php?id=23868
3. “Hague Tribunal to Decide on 2008 War Investigation,” Pik.tv, 9 August 2011, http://pik.tv/en/news/story/16299-hague-tribunal-to-decide-on-2008-war-investigation
4. “Tbilisi refuses to cooperate with Moscow on probe into Russian-Georgian war,” RIA Novosti, 8 August 2011, http://en.rian.ru/russia/20110808/165621940.html
5. “Medvedev on Ties with Georgia,” Civil Georgia, 5 August 2011, http://www.civil.ge/eng/article.php?id=23824
A. COALITION MEMBER STATEMENTS
1. “Guinea urged to investigate opposition protest deaths,” Amnesty International, 28 September 2011, http://amnesty.org/en/news-and-updates/guinea-urged-investigate-opposition-protest-deaths-2011-09-28
“The Guinean authorities must immediately carry out an investigation into the deaths of three protesters killed during clashes between police and demonstrators at a banned opposition rally in the capital Conakry on Tuesday, Amnesty International said today.
On the eve of the second anniversary of a massacre where more than 150 people were killed by security forces in Conakry, protestors were stopped on their way to a stadium by police using live rounds, tear gas and batons. Some demonstrators responded by throwing stones at police. The demonstration was called for by Guinea’s two main opposition parties, who have criticized the way a December parliamentary election is being organized.
“Beating and killing protesters has been the standard response of Guinean security forces whenever popular demonstrations have called for political or economic reforms,” said Paule Rigaud, Amnesty International Deputy Director for Africa.“It’s deeply alarming that President Alpha Condé is resorting to exactly the same brutal methods as his predecessors. Although the Chief of Staff had asked the army to remain in their barracks yesterday, it seems that no orders of restraint were given to the police,” she said.
President Condé came to power in November 2010, after a disputed election that ended military rule under Captain Moussa Dadis Camara. One protestor told Amnesty International he had witnessed police killing another demonstrator: “The security forces chased us and began beating some of us with their truncheons. We ran away and one of us fell down. A member of the security forces leant over him and stabbed him to death, ” he said.
Security forces also reportedly entered private compounds and looted houses, according to another eyewitness Amnesty International spoke to. On 28 September 2009, Guinean security forces shot dead more than 150 unarmed protesters during an opposition rally in the same stadium. Over 40 women were raped in public, at least 1,500 people were wounded and many others went missing.
Despite the fact that a judicial enquiry was opened more than one year ago, the main perpetrators of the massacre have not been suspended from duty and none of them have been brought to justice. “If this recurrent excessive use of force by police is to be stopped, it is essential to put an end to the climate of impunity that appears to be prevailing in Guinea”, said Paule Rigaud.”
3. “Guinea: 2 Years On, Stadium Massacre Unpunished; Lack of Accountability Impedes Reconciliation” Human Rights Watch, 27 September 2011
“No one has been held to account two years after Guinean security forces gunned down unarmed protesters at an opposition rally in Conakry, the capital, Human Rights Watch said today. The Guinean government needs to do more to ensure justice for victims of the massacre on September 28, 2009, Human Rights Watch said.
The killings occurred as tens of thousands of protesters gathered peacefully at the main stadium in the capital to protest the continued military rule of Capt. Moussa Dadis Camara, then the country’s leader. Members of the Presidential Guard, gendarmes, anti-riot police, and militia in civilian clothes opened fire on the crowds in the packed stadium and on people struggling to escape. At least 150 people were killed, and more than 100 women at the rally suffered brutal sexual violence at the hands of the security forces.
“The stadium massacre was shocking, and yet two years later no one has been held to account,” said Daniel Bekele, Africa director at Human Rights Watch. “The Guinean government should learn from the country's recurring cycles of violence that stability will not last if justice is swept under the rug.”
Human Rights Watch and the United Nations-led International Commission of Inquiry concluded that the killings, rapes, and other abuses by the security forces on September 28 and the days that followed were part of a widespread and systematic attack, and as such, very likely constituted crimes against humanity.
In October 2009, the International Criminal Court (ICC) prosecutor confirmed that the situation in Guinea was under analysis, and that his office was determining whether to initiate a formal investigation. The ICC may open an investigation for the most serious crimes if member countries are unable or unwilling to do so. Later the same month, the government of Guinea committed to investigate and bring those responsible for the attacks to justice….”
3. “La commémoration du massacre du 28 septembre 2009 confisquée par la tension politique” (Commemoration of 28 September 2009 massacre confiscated by political tension) FIDH, 28 September 2011, http://www.fidh.org/IMG//pdf/noteguineeconakry2809fr.pdf [in French]
4. “Guinea: Putting the Transition Back on Track” International Crisis Group, 23 September 2011, http://www.crisisgroup.org/en/regions/africa/west-africa/guinea/178-guinea-putting-the-transition-back-on-track.aspx [full report in French]
B. RELATED NEWS AND OPINIONS
1. “Activists petition ICC to investigate Guinea massacre,” Reuters, 29 September 2011, http://www.rnw.nl/international-justice/article/activists-petition-icc-investigate-guinea-massacre
2. ““Moussa Thiegboro Camara et Claude Pivi seront bien transférés à la CPI’ promet Alpha Condé” (“‘Moussa Thiegboro Camara et Claude Pivi will be transfered to the ICC’ Alpha Condé promises”) Guinée 58, 25 September 2011, http://www.guinee58.com/index.php?option=com_content&view=article&id=3884:info-exclusive-lmoussa-thiegboro-camara-et-claude-pivi-seront-bien-transferes-a-la-cpir-promet-alpha-conde&catid=34:politique&Itemid=54 [in French]
A. RELATED NEWS AND OPINIONS
1. “Rights group seeks update on ICC probe in Nigeria,” Radio Netherlands, 4 October 2011, http://www.rnw.nl/international-justice/article/rights-group-seeks-update-icc-probe-nigeria
“A year after Luis Moreno Ocampo announced he was to look into crimes in Jos, Nigerian rights groups are urging him to “make progress” and bring his “analysis and investigation of allegations of crimes against humanity in Jos to a quick and satisfactory completion.”
“It is now close to one year since the ICC launched an analysis on the Jos situation; and many victims are continuing to ask us for the outcome of the intervention by the ICC. The continuing delay by the ICC to complete its examination of the Jos situation is fuelling and contributing to a vicious cycle of violence and impunity, leaving victims without justice and an effective remedy.”
That is the call of civil society group, Socio-Economic Rights and Accountability Project (SERAP) sent to Luis Moreno Ocampo, the Chief Prosecutor at the International Criminal Court in The Hague. The group asked Ocampo to do this “for the sake of tens of thousands of victims of violence and unlawful killing waiting for justice; to end impunity of perpetrators and the spreading of violence and insecurity to other parts of Nigeria.”
According to the group, the violence continues to escalate “and the impunity of perpetrators have had a multiplier effect and precipitated continuing violence and unlawful killings in several parts of the country. …”
VI. NORTH KOREA
A. COALITION MEMBER STATEMENTS
1. “World’s major human rights groups unite to campaign for investigation into North Korea’s crimes against humanity,” International Federation for Human Rights, 8 September 2011, http://www.fidh.org/Wordl-s-major-human-rights-groups
“The world’s three largest international human rights organizations, Amnesty International, Human Rights Watch and the International Federation for Human Rights (FIDH), along with 40 other organizations from around the world, today launched a major global campaign to seek the establishment of a United Nations (UN) Commission of Inquiry to investigate crimes against humanity in North Korea….
The full statement summarising the objectives of the Coalition is as follows:
The International Coalition to Stop Crimes Against Humanity in North Korea unites the world’s major international human rights organizations, campaigners for freedom for North Korea and survivors of the North Korean gulags in a global campaign seeking a full investigation of the regime’s crimes against humanity through a United Nations Commission of Inquiry.
The Coalition aims to bring together all the key organizations and individuals working on North Korean human rights, because we believe that a common, united effort will influence international political and public opinion and send a powerful message to the regime.
The Coalition fully recognizes the need to deploy a wide range of skills and initiatives to bring change to North Korea, and completely respects the individuality of each Coalition member. Coalition members will be free to pursue a variety of approaches, but will unite in a common campaign to seek the establishment of a UN Commission of Inquiry.
Coalition members will include organizations and individuals from across the world, including throughout Asia, North America, Latin America and Europe….”
2. “North Korea: Joint Letter from International Coalition to Stop Crimes Against Humanity in North Korea,” 3 October 2011, http://www.hrw.org/news/2011/10/03/north-korea-joint-letter-international-coalition-stop-crimes-against-humanity-north-
A. COALITION MEMBER STATEMENTS
1. “Human Rights Organizations Demand PLO and International Community Uphold Victims Rights,” FIDH, 29 September 2011, http://www.coalitionfortheicc.org/documents/fidh_plo_victims_rights.pdf
“This General Assembly must act to uphold the enforcement of international law, and to ensure that the accountability process triggered more than two years ago by the Report of the UN Fact-Finding Mission on the Gaza Conflict reaches its full legal implementation.
The Fact-Finding Mission documented extensive evidence indicating the commission of crimes under international law by all sides in the context of Israel's 27 December 2008 - 18 January 2009 offensive on the Gaza Strip. In accordance with the requirements of customary international law, a two-stage accountability process was initiated.
First, all sides were required to address all allegations domestically. Second, in the event that these investigations failed to meet international standards, recourse to international justice mechanisms - particularly the InternationalCriminal Court - was necessitated. Two years later, as confirmed by national and international human rights organizations and the UN Committee of Independent Experts established by the Human Rights Council, it is unambiguously clear that all parties have failed to conduct domestic investigations that are prompt, effective, independent, and in conformity with international law. Furthermore, all parties have failed to prosecute suspected perpetrators of crimes under international law.
As a result, recourse must now be had to mechanisms of international justice. Indeed, the 16th session of the Human Rights Council recommended that this 66th session of the General Assembly submit the Report of the UN Fact-Finding Mission on the Gaza Conflict to the Security Council, with the recommendation that the Security Council refer the situation in Israel and the Occupied Palestinian Territory to the Prosecutor of the International Criminal Court, pursuant to Article 13(b) of the Rome Statute. The interests of justice demand that the General Assembly make this request of the Security Council, and that the Security Council continue the precedent established with respect to Sudan and Libya and act in the interests of accountability and justice for all victims.
Responsibility falls upon the Palestine Liberation Organization (PLO), as drafters of the relevant resolutions, to initiate the procedures recommended by the 16th Session of the Human Rights Council. All efforts must be undertaken to ensure justice for all victims.
Should the PLO choose not to pursue the accountability process initiated by the Report of the UN Fact-Finding Mission - at the expense of the Statehood initiative - this will amount to the prioritisation of political processes over victims' fundamental rights; indicating acceptance of the pervasive impunity that characterises the situation in Israel and the occupied Palestinian territory.
At this time it is imperative that the international community sends a clear and unambiguous message: human rights are universal, and all those suspected of committing crimes under international law will be pursued, irrespective of any political considerations.”
2. “Q&A: Human rights implications of the Palestinian bid for UN membership,” Amnesty International Press Statement, 26 September 2011, http://amnesty.org/en/news-and-updates/q-and-human-rights-implications-palestinian-bid-un-membership-2011-09-26
“…Will the Palestinian Authority’s statehood bid allow it to ratify international human rights conventions and treaties, including the Rome Statute of the International Criminal Court (ICC)?
…All states are allowed to sign and ratify the Rome Statute of the International Criminal Court. Legal opinion varies on whether further recognition of Palestinian statehood, a General Assembly resolution, or an upgraded status at the UN would allow Palestine to ratify the Rome Statute. However, any of these would bolster Palestinian claims to statehood, enabling the Palestinian Authority to argue that it was eligible to become a party to the ICC.
However, the current political manoeuvring surrounding Palestine’s statehood bid could also harm its ability to access the ICC. Media reports have suggested that the EU has proposed upgrading Palestine to a non-member observer state on condition that the Palestinians forgo recourse to the ICC. The EU High Representative, Catherine Ashton, has reportedly proposed creating a new status at the General Assembly which would not allow the PA to ratify the Rome Statute.
Amnesty International opposes any attempts to prevent the Palestinians from accessing the ICC. Such attempts contravene the fundamental principle that justice should be accessible to all. They also seem designed to offer impunity for crimes committed during the 2008-2009 conflict in Gaza and southern Israel, by preventing both Palestinian and Israeli victims from accessing justice through the ICC.
How would the statehood bid affect efforts to pursue accountability for crimes under international law committed during the 2008-2009 conflict in Gaza and southern Israel?
Amnesty International has documented evidence that war crimes were committed by both Israeli forces and Palestinian armed groups during the 2008-2009 conflict in Gaza and southern Israel. The UN Fact-Finding Mission on the Gaza Conflict concurred with this assessment. Amnesty International has concluded that both the Israeli government and the Hamas de facto administration have failed to conduct credible, independent investigations and failed to prosecute perpetrators of crimes under international law.
In January 2009, the Palestinian Authority submitted a declaration accepting the ICC’s jurisdiction over crimes committed on its territory since July 2002. This declaration would potentially cover all crimes committed in Gaza and southern Israel during the 2008-2009 Gaza conflict. The ICC Prosecutor has been considering the legal implications of this declaration since it was submitted, but no determination has yet been made on its validity. If this or any similar future declaration by the Palestinian Authority were considered valid, the ICC might be able to prosecute crimes committed during the 2008-2009 Gaza conflict.
Amnesty International has been calling on the UN General Assembly to urge the Security Council to refer the situation to the ICC. In addition, it has been appealing to all states to investigate and prosecute before their national courts crimes under international law allegedly committed during the conflict by exercising universal jurisdiction….”
3. "Shielded from accountability: Israel's unwillingness to investigate and prosecute international crimes," FIDH, 27 September 2011, http://www.fidh.org/Shielded-from-accountability
“On the occasion of the UN General Assembly session in September 2011, the International Federation for Human Rights (FIDH) releases a position paper entitled “Shielded from accountability : Israel’s unwillingness to investigate and prosecute international crimes”. The paper analyses the mechanisms available for Palestinian victims of international crimes to access an effective remedy before Israeli Courts, in light of the principle of complementarity under international criminal law.
On the occasion of the UN General Assembly session in September 2011, the International Federation for Human Rights (FIDH) releases a position paper entitled “Shielded from accountability : Israel’s unwillingness to investigate and prosecute international crimes”. The paper analyses the mechanisms available for Palestinian victims of international crimes to access an effective remedy before Israeli Courts, in light of the principle of complementarity under international criminal law.
Using international human rights law and international criminal law criteria, including the International Criminal Court’s criteria for the evaluation of complementarity as defined in Article 17 of the Rome Statute, the paper demonstrates the systematic denial of justice to victims due to Israel’s lack of independent, effective, prompt and impartial investigations into allegations of international crimes committed by the Israeli Military in the Occupied Palestinian Territories (OPT). It examines the Israeli criminal justice system, the High Court of Justice’s (HCJ) judicial review of criminal proceedings, and the functioning of military courts in the OPT. The findings of the paper conclude that the HCJ fails to uphold the standards of impartiality and independence; and that it often turns a black eye to acts of the Executive Branch, thus facilitating perpetration of international crimes through its active involvement in legitimising alleged war crimes and shielding political and military figures from criminal responsibility. In addition, as a consequence of its refusal to investigate the wider context of policies and strategies of Israeli military operations, the HCJ has failed to prevent criminal practices, and has allowed the continuation of the suffering of the Palestinian civilian population….”
4. "Shielded from accountability: Israel's unwillingness to investigate and prosecute international crimes," FIDH, September 2011, http://www.fidh.org/IMG//pdf/report_justice_israel-final-3.pdf
5. “The universality of justice does not end at the Israeli-Palestinian border!” FIDH, 23 September 2011, http://www.coalitionfortheicc.org/documents/FIDH_Israel-Palestine.pdf
“FIDH member organisations in the Middle-East strongly feel that the legitimate debate on the recognition of the Palestinian state, which FIDH supports, must not sacrifice the rights of victims of international crimes.
The French proposal before the United Nations General Assembly may have the merit of being pragmatic, but it includes an unacceptable condition: the commitment that the future Palestinian state does not resort to the International Criminal Court.
The universal nature of the claim for justice sweeping through North Africa and the Middle East does not stop at the Israeli-Palestinian border. The State of Palestine and the State of Israel must take advantage of this historical opportunity before the General Assembly to commit to acceeding the Rome Statute of the International Criminal Court.
In a situation marked by perpetration of international crimes and systematic impunity, as confirmed in the FIDH report entitled "Shielded from accountability: Israel's unwillingness to investigate and prosecute international crimes", justice is not only a challenge and a right for victims of past crimes. An independent, fair and effective judiciary can contribute to deterrence and thus be a guarantee for future peace and stability. Should the national judicial system not able to play this decisive role, the international judicial system should be able to intervene….”
6. “Curb Your Enthusiasm: Israel and Palestine after the UN,” International Crisis Group, 12 September 2011, http://www.crisisgroup.org/en/publication-type/media-releases/2011/mena/curb-your-enthusiasm-israel-and-palestine-after-the-un.aspx
“A UN resolution endorsing Palestinian statehood should produce a tangible gain for the Palestinians while providing some reassurance to Israelis, and, above all, be followed by maximum, collective restraint to prevent a cycle of mutual retaliation that would work to the detriment of all.
Curb Your Enthusiasm: Israel and Palestine after the UN, the latest report from the International Crisis Group, examines the upcoming Palestinian bid at the UN. It describes the path to the UN as a tale of collective mismanagement. Palestinian leaders, in a mix of ignorance, internal divisions and brinkmanship, oversold what they could achieve and now are scrambling to avoid further loss of domestic credibility. Israel, overdramatising the impact of a UN move and inclined to punish the Palestinians, has threatened to retaliate. The U.S. administration, unable to steer events, fed up with both sides, and facing a Congress that will inflict a price for any Palestinian move at the UN, just wants the whole thing to go away. It is pressing instead for a resumption of negotiations which, in the current context, are likely to collapse – making it a cure more hazardous than the ailment….
… The U.S. and Israel fear Palestinians will press their advantage and, with non-member observer status, drag Israelis to the International Criminal Court. Israel could take its own measures, withholding the transfer of tax revenues or accelerating settlement expansion. An incensed U.S. Congress could halt assistance to the Palestinians. After the UN vote, it will be up to the EU and U.S. to counsel restraint on all sides and prevent the realisation of self-fulfilling prophesies of disaster….”
B. COALITION MEMBER QUOTED
1. “'Ample evidence to take Israel to ICC',” 30 September 2011, Ïnterview with Valentine Azarov of Al-Haq, Press TV, http://www.presstv.ir/detail/201970.html
C. RELATED NEWS AND OPINIONS
1. “What next, Mr Abbas?” The Economist, 2 October 2011, http://www.economist.com/blogs/newsbook/2011/10/palestinian-statehood
2. “Analysts Examine Alternatives to Palestinian Bid for UN Statehood,” Voice of America 29 September 2011, http://www.voanews.com/english/news/middle-east/A-Palestinian-Third-Way-to-UN-Status-130795718.html
3. “Why Palestine is Already a State-Pt. 2” Huffington Post, 29 September 2011, http://www.huffingtonpost.com/joe-lauria/un-palestine-state-_b_985349.html
4. “Palestinians could pursue war crimes charges without full statehood: ICC prosecutor,” The Star, 28 September 2011, http://www.thestar.com/news/article/1061595
5. “Palestine in Criminal Court Triggers Western, Israeli Fears” Thalif Deen, IPS, 27 September 2011, http://ipsnews.net/news.asp?idnews=105260
6. “Factbox: Palestinians apply for U.N. membership” Reuters, 23 September 2011
7. “Abbas’ roadmap: New York to The Hague?” by Thijs Bouwknegt, Radio Netherlands, 22 September 2011,http://www.rnw.nl/english/article/abbasâ-roadmap-new-york-hague
8. “UN move could help establish Palestinian legal rights-ANALYSIS” by Joseph Schuman, Reuters, 22 September 2011, http://newsandinsight.thomsonreuters.com/Legal/News/2011/09_-_September/UN_move_could_help_establish_Palestinian_legal_rights-ANALYSIS/
9. “Q+A: Explaining the Palestinian drive to join the U.N.” by Louis Charbonneau, Reuters, 20 September 2011, http://www.reuters.com/article/2011/09/20/us-palestinians-israel-un-qa-idUSTRE78J6PR20110920
10. “The Palestinian Bid for Statehood and ICC Jurisdiction” by David Benjamin, The Weekly Standard, 19 September 2011
11. “Palestine at the UN: What Will Fail, What May Pass and What It Means” The Huffington Post, 19 September 2011
12. “Israel fears Palestinian ICC recourse on settlers, report says,” AFP/Now Lebanon, 16 September 2011, http://www.nowlebanon.com/NewsArchiveDetails.aspx?ID=312185
13. “Palestine’s UN Vote and the ICC Conundrum,” Mark Leon Goldberg, UN Dispatch, 15 September 2011, http://ijcentral.org/blog/palestines_un_vote_and_the_icc_connundrum/
14 “Should Israel fear ICC war crimes prosecutions if Palestine becomes a State?,” Colum Lynch, Turtle Bay, Foreign Policy, 15 September 2011, http://ijcentral.org/blog/should_israel_fear_icc_war_crimes_prosecutions_if_palestine_becomes_a_state/
15. “Opponents Of Palestinian U.N. Bid Use Disingenuous ICC Argument,” Ali Gharib, IJ Central, 14 September 2011, http://ijcentral.org/blog/opponents_of_palestinian_u.n._bid_use_disingenuous_icc_argument/
16. “What Peace Process?,” Marwan Muasher, Carnegie Endowment for International Peace, 14 September 2011, http://carnegieendowment.org/2011/09/14/what-peace-process/54av
17. ‘ICC should revoke PA’s acceptance of court’s jurisdiction’,” Joanna Paraszczuk, The Jerusalem Post, 9 September 2011, http://www.jpost.com/DiplomacyAndPolitics/Article.aspx?id=237278
18. “Turkey, Israel and the ICC (updated),” David Bosco, The Multilateralist, Foreign Policy, 8 September 2011, http://bosco.foreignpolicy.com/posts/2011/09/08/turkey_israel_and_the_icc
19. “Diplomacy: Can September place Israel on the ICC dock?,” Tovah Lazaroff, The Jerusalem Post, 19 August 2011, http://www.jpost.com/Features/FrontLines/Article.aspx?id=234410
VIII. COALITION MEMBER STATEMENTS REGARDING COUNTRIES NOT CURRENTLY UNDER ICC INVESTIGATION
1.“Blocking of Security Council resolution on Syria a 'shocking betrayal',” Amnesty International, 5 October 2011, http://www.amnesty.org/en/news-and-updates/blocking-security-council-resolution-syria-shocking-betrayal-2011-10-05
“Permanent members of the Security Council that used their veto yesterday to block a binding resolution on Syria have utterly failed in their responsibilities to protect the Syrian people, Amnesty International said today.
"It is shocking that after more than six months of horrific bloodshed on the streets and in the detention centres of Syria, the governments of both Russia and China still felt able to veto what was already a seriously watered down resolution," said Malcolm Smart, Amnesty International's Middle East and North Africa Director.
... Nine members of the Security Council voted in favour of the draft resolution, which condemned Syria's crackdown on protesters and left open the possibility of sanctions.
Permanent members Russia and China used their vetoes to prevent the resolution from being passed, while South Africa, India, Brazil and Lebanon abstained.
Amnesty International has continued to call on the UN Security Council to take stronger action on Syria, in particular: to refer the situation in Syria to the International Criminal Court; to impose an arms embargo on Syria; and to implement an asset freeze against President Bashar al-Assad and his senior associates.”
2. “Syria: The long reach of the Mukhabaraat: Violence and harassment against Syrians abroad and their relatives back home,” Amnesty International, 3 October 2011, http://www.coalitionfortheicc.org/documents/mde240572011en.pdf
3. “Syria: Investigate Possible State Role in Decapitating Woman; Kidnappings, Deaths of Detainees, Including Woman’s Brother, Widespread in Homs” HRW, 27 September 2011
“The killing and mutilation of Zaynab al-Hosni, 18, by unknown persons highlights the urgent need for the UN Security Council to demand access to Syria for an international investigation into rampant killings and torture in Syria, Human Rights Watch said today. Zaynab, whose brothers are active in anti-government protests, had vanished in late July after going out to buy medication for her mother. Syrian authorities returned al-Hosni’s dismembered body to her family on September 17, 2011, without providing any information on the circumstances surrounding her killing, and forced her mother to sign a paper stating that “armed gangs” had killed her.
Security forces shot and wounded Zaynab’s brother, Muhammad, 25, on September 10, in the Bab Sba` neighborhood of Homs and arrested him. They returned his body to his family on September 14 with bullet wounds to his arm, head, and chest. Friends who were with him on September 10 told his family that he had only been shot in the arm at the time of his arrest.
“Syrian security forces either killed and mutilated Zaynab al-Hosni or are turning a blind eye to gangs committing gruesome murders against anti-government activists and their families,” said Joe Stork, deputy Middle East director at Human Rights Watch. “In either case, the government of Bashar al-Assad is perpetuating a climate of terror in Syria and fanning the flames of sectarian mistrust….”
4. “Silence is Not an Option! Syrians Cannot Afford to Wait!,” International Federation for Human Rights, 13 September 2011, http://www.fidh.org/Silence-Is-Not-an-Option-Syrians
“Your Excellency, Dr. Nabil El Araby
Secretary General, League of Arab States
We, the undersigned representatives of (176) local and international civil society organisations working in the Arab world, welcome the League of Arab States’ (LAS) efforts to find a solution to the human rights crisis in Syria….
While the LAS initiative is commendable, we are concerned that it lacks guarantees and benchmarks to ensure its successful implementation. In order to ensure the principles set forth in the LAS plan are fully respected by the Syrian authorities, clear and publicly established criteria based on international standards are necessary. An effective mechanism of monitoring and reporting to ensure the cessation of violence as well as the implementation of reforms on the ground should be an integral part of the Arab League’s initiative….
We hope that the Government of Syria will respond to the LAS initiative. In case the Syrian authorities refuse to cooperate and to commit massive human rights abuses, we urge the League to support sanctions against Syria and its rulers, including through the UN Security Council.
We believe that the LAS can help bring an end to the ongoing human rights violations in Syria by:
-Reiterating a formal, public call for the immediate cessation of the use of force against the civilian population in Syria. Ensure that those responsible for crimes, including unlawful killings, in the use of force are held accountable….
-Calling on Syrian authorities to cooperate and grant access to the UN-mandated Commission of Inquiry to investigate allegations of human rights violations….”
5. “Syria’s surge of deaths in detention revealed,” Amnesty International, 30 August 2011, http://amnesty.org/en/news-and-updates/report/syriaâs-surge-deaths-detention-revealed-2011-08-30
“At least 88 people are believed to have died in detention in Syria during five months of bloody repression of pro-reform protests, a new Amnesty International report reveals today.
Deadly detention: Deaths in custody amid popular protest in Syria documents reported deaths in custody between April and mid-August in the wake of sweeping arrests….
Amnesty International has called on the UN Security Council to refer the situation in Syria to the International Criminal Court, to impose an arms embargo on Syria and to implement an asset freeze against President Bashar al-Assad and his senior associates.
‘Taken in the context of the widespread and systematic violations taking place in Syria, we believe that these deaths in custody may include crimes against humanity,’ said Neil Sammonds….”
6. “Syria: Deadly detention: Deaths in custody amid popular protest in Syria,” Amnesty International, 30 August 2011, http://amnesty.org/en/library/asset/MDE24/035/2011/en/e4ed18bf-25c6-4eba-af40-2995299c4eb1/mde240352011en.pdf
7. “Syrian Arab Republic: Accountability for human rights violations and international crimes paramount, Security Council must act,” International Commission of Jurists and World Organization Against Torture, 23 August 2011, http://www.omct.org/urgent-campaigns/urgent-interventions/syrian-arab-republic/2011/08/d21395/
“The International Commission of Jurists (ICJ) and the World Organisation Against Torture (OMCT) welcomed the resolution adopted today by the United Nations Human Rights Council, strongly condemning the continued grave and systematic human rights violations committed by the Syrian authorities and establishing an independent Commission of Inquiry to investigate the human rights situation in the country….
A Fact Finding Mission on Syria, dispatched by the Office of the High Commissioner for Human Rights following the Council’s first special session on Syria in April 2011, reported on 17 August 2011 its findings of widespread and systematic human rights violations… Today’s Council resolution expressed profound concern at the Mission’s findings, including that the patterns of human rights violations may amount to crimes against humanity, as provided for in article 7 of the Rome Statute of the International Criminal Court (ICC)….
‘In the face of the overwhelming and compelling evidence presented, amongst others by the report of the UN High Commissioner for Human Rights, the situation must now urgently be referred by the Security Council to the International Criminal Court’, said Gerald Staberock, Deputy Secretary General of OMCT. Such action would be taken under article 13 of the Rome Statute, which allows referral of a matter to the jurisdiction of the Court where a situation appears to involve the commission of a crime under the Statute.”
8. “Crimes against humanity in Syria: the urgent debate in the UN Human Rights Council should be echoed by further action at the Security Council,” International Federation for Human Rights, 22 August 2011, http://ww.fidh.org/Crimes-against-humanity-in-Syria
“On the eve of August 22, 2011, a date set by the United Nations (UN) Human Rights Council (HRC) for a Special Session on the situation of human rights in Syria, the International Federation for Human Rights (FIDH) and the Damascus Center for Human rights Studies (DCHRS) call upon the Member States of the HRC to adopt an unequivocal resolution and take all appropriate measures to urge the Syrian authorities to put an immediate end to the gross human rights violations underway in the country. Additionally the UN Human Rights Council should further its efforts to press the Syrian authorities to fully cooperate without any further delay with independent UN bodies. This includes, but is not limited to a UN commission of inquiry in order to enable an investigation on all alleged violations of international human rights law and to identify those allegedly responsible….
FIDH and DCHRS support the HRC proposal to establish a Commission of Inquiry in order to further investigate all alleged violations committed against Syrian civilians and call upon the Syrian government to fully cooperate with the Commission and to immediately take all necessary steps to guarantee their full and immediate access to Syria.
However, recalling the Syrian persistent failure to cooperate with the UN bodies and the gravity, the scale, and the international character of the alleged crimes committed by the Syrian Government, FIDH and DCHRS reiterate their call to the UN Security Council Member States to take urgent and appropriate actions including to consider referring the situation in Syria to the International Criminal Court, as recommended by UN High Commissioner for Human Rights.”
9. “Syria: Human Rights Council must refer situation to International Criminal Court,” Amnesty International UK, 19 August 2011, http://www.amnesty.org.uk/news_details.asp?NewsID=19636
“As the Human Rights Council prepares to hold a special session on Syria on Monday (22 August), Amnesty International is urging the UN body to add its voice to calls for the UN Security Council to refer the situation in Syria to the International Criminal Court.
Amnesty believes that, given what it considers to be a growing body of crimes against humanity, the Human Rights Council should support a move which would demonstrate to Syria’s leaders that the international community intends to hold those who have committed such crimes individually criminally responsible for them. This is particularly crucial given the Syrian authorities’ ongoing failure to bring an end to such crimes in response to the international community’s repeated expressions of concern….
Amnesty is also urging the Human Rights Council, in addition, to call on the Security Council to impose an arms embargo on Syria; to freeze the assets abroad of President Bashar al-Assad and his senior associates; and to refer the situation in the country to the Prosecutor of the International Criminal Court; call on the Syrian authorities to allow immediate, unfettered and sustained access for international media and international human rights monitors….”
10. “Syria: Who You Gonna Call?,” Don Kraus, Citizens for Global Solutions, Care2.com, 18 August 2011, http://www.care2.com/causes/syria-who-you-gonna-call.html
“….As Syrian President Bashar al-Assad’s brutality escalates, so have the rebukes from the world community. Today President Obama announced the harshest financial sanctions yet against the Assad regime. And for the first time, the president has called for Assad to leave Syria, so the country can have a democratic transition….
Here is what needs to happen next:
My organization, Citizens for Global Solutions has called for the Security Council to impose an arms embargo on Syria and order a halt to the purchase of its oil and gas products until all Syrians are protected. The Council should also hold the Syrian political and military leadership personally responsible for their actions, by referring the case to the International Criminal Court. Mass murderers deserve a trip to The Hague. But the likelihood of a resolution referring Assad to the ICC is slim, largely because of veto threats from Russia and China. Both of these nations, as permanent members of the Security Council, have a responsibility not to use their veto power to protect governments that commit mass murder. If they choose to ignore this responsibility, they should have to explain to the world and the Syrian people why they chose to stand idle while civilians are being slaughtered.
The U.N.’s Human Rights Council should conduct public hearings in Geneva featuring live, televised testimony by Syrian victims who have escaped to neighboring countries to generate global pressure for more effective means to end the killings. It should also appoint an investigator to report to the U.N. in September and to continue monitoring the situation until Assad’s repressive Baath Party is replace by a government that respects basic human rights….”
11. “UN Human Rights Council Calls for Action on Syria,” Melissa Kaplan, Citizens for Global Action, The Global Citizen, 23 August 2011, http://globalsolutions.org/blog/2011/08/un-human-rights-council-calls-action-syria
12. “Obama Calls on Syrian President Assad to Step Down,” Melissa Kaplan, Citizens for Global Solutions, The Global Citizen, 18 August 2011, http://globalsolutions.org/blog/2011/08/obama-calls-syrian-president-assad-step-down
13. “Arab League: Hold Emergency Meeting on Syria,” Human Rights Watch, 15 August 2011, http://www.hrw.org/news/2011/08/15/arab-league-hold-emergency-meeting-syria
“…The League of Arab States should hold an emergency meeting about the crackdown in Syria, Human Rights Watch said today in a letter to Nabil al-Arabi, secretary general of the league.
Human Rights Watch also urged the league to press Syria for unhindered access to the country for a UN-mandated fact-finding committee and for independent observers and journalists….”
14. “Young Syrian activists held amid widespread repression,” Amnesty International, 15 August 2011, http://www.amnesty.org/en/for-media/press-releases/young-syrian-activists-held-amid-widespread-repression-2011-08-15
“At least three young human rights activists who helped to organize peaceful protests in and near Damascus are being held incommunicado in unknown locations after their recent arrest, while fears are growing for a fourth who has gone missing….
Since the beginning of popular protests in mid-March, the Syrian security forces have arrested thousands of people in cities across the country. Amnesty International has received numerous accounts of detainees being tortured and otherwise ill-treated, with some dying in custody as a result.
Amnesty International has repeatedly called on the UN Security Council to refer the situation in Syria to the Prosecutor of the International Criminal Court (ICC), based on evidence of crimes against humanity.”
15. “UN: Syria Escalates Repression After Security Council Statement,” Human Rights Watch, 9 August 2011, http://www.hrw.org/news/2011/08/09/un-syria-escalates-repression-after-security-council-statement
“The United Nations Security Council should press Syria to comply with the council’s demand to end attacks against peaceful protesters, Human Rights Watch said today. Syria should comply with the Security Council’s August 3, 2011 statement, which also called on Syria to cooperate fully with the Office of the High Commissioner for Human Rights (OHCHR), which has been investigating the abuses in Syria….
B. SRI LANKA"
1. “Why the Silence on Sri Lanka?,” International Center for Transitional Justice, 13 September 2011, http://ictj.org/news/why-silence-sri-lanka
“The Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka released earlier this year alleges “tens of thousands of civilians” were killed in the operations of the Sri Lankan government against the last pockets of resistance from the Tamil Tigers (LTTE) between January and May of 2009.
The report describes how 330,000 civilians were trapped in the Vanni between the Sri Lankan army and the LTTE in the final phase of the conflict. According to the report, the government targeted those civilians with artillery fire, including striking hospitals in which the injured were being treated. In turn, the LTTE forcibly kept civilians in the conflict zone, even shooting those who tried to flee.
In the aftermath of the conflict, the entire refugee population was interned for many months under poor conditions. Former LTTE fighters were detained in sites to which international agencies, such as the International Committee of the Red Cross (ICRC), did not have access.
These allegations, if proven, would amount to war crimes and crimes against humanity, the report concluded, recommending an international investigation and a range of other measures, all of which have yet to be implemented….
Recently, the HRC initiated commissions of inquiry in Libya, Syria, and Cot