This quarterly international criminal law update provides a summary of a cross section of news stories in the period April 2019 – June 2019. Please also see our round-up from the Q1 2019.

April

MET WAR CRIMES UNIT INVESTIGATES RWANDA GENOCIDE SUSPECTS LIVING IN UK

Prompted by a question from Andrew Mitchell MP, on 8 April 2019, Nick Hurd MP confirmed that following the decision not to extradite to Rwanda persons suspected of involvement in the 1994 genocide against the Tutsis, that five people living in the UK are being investigated by the Met’s War Crimes Unit after a referral from Rwanda in January 2018. Some war crimes, such as genocide, can be prosecuted in the UK even if they occurred abroad - giving rise to the possibility of these individuals being tried in the UK. Mr Hurd MP confirmed that documentation relevant to these allegations was assessed by the Unit and that officers were deployed to Rwanda to scope the allegations.  An investigation has commenced and the enquiries are on-going.

ROMANIA’S EX-PRESIDENT CHARGED WITH CRIMES AGAINST HUMANITY

On 9 April 2019, Ion Iliescu, Romania’s former President, was charged with crimes against humanity in relation to his role in the country’s 1989 revolution.  The revolution, which brought down communist leader Nicolae Ceausescu, resulted in 862 people being killed. Prosecutors say Iliescu was responsible for running a campaign of misinformation that created a climate of terror, which increased the risk of chaotic shooting. Iliescu, 89, denies any wrongdoing. No date for the trial has yet been set.

ICC REJECTS REQUEST TO INVESTIGATE WAR CRIMES IN AFGHANISTAN 

On 12 April 2019, the ICC pre-trial chamber unanimously rejected Prosecutor’s request to proceed with an investigation for alleged crimes against humanity and war crimes on the territory of in the Islamic Republic of Afghanistan. The judges decided that it would not serve the interests of justice at this stage as, despite all the relevant requirements being met for jurisdiction and admissibility, the current circumstances in Afghanistan make the prospects for a successful investigation and prosecution extremely limited. The investigation, which included consideration of the role of the US in the conflict in Afghanistan, had been the subject of vociferous criticism by the US administration.

ASSANGE ARRESTED FACING EXTRADITION REQUESTS FROM THE US AND SWEDEN

After seven years of asylum in the Ecuador embassy in London, Julian Assange, was arrested on 11 April 2019. Ecuador suddenly withdrew asylum and the police were invited in to arrest him. He was promptly found guilty of a British charge of breaching bail. Swedish prosecutors want to extradite him in relation to an allegation of rape. The US also wants to extradite him from the UK over his alleged role in one of the largest ever leaks of government secrets in 2010.

May

ICC REVERSES DECISION TO REFER JORDAN TO SECURITY COUNCIL OVER BASHIR

Sudanese President Omar al-Bashir has been issued with two ICC arrest warrants over his suspected involvement in war crimes and genocide in Sudan’s Darfur province.  Since Bashir’s visit to Amman in March 2017, the ICC has been considering whether to refer Jordan to the UN Security Council over its failure to execute the arrest warrant in accordance with its obligations under the Rome Statute.  In May 2019, in a split ruling, the ICC ruled that while Jordan should have arrested Bashir, Jordan’s attempts to consult with the court about the arrest beforehand meant that its failure to arrest did not constitute a ground for referral to the UN Security Council. Presiding Judge Chile Eboe-Osuji ruled that referring Jordan to the UN for possible sanctions went too far.

ICC PROSECUTOR URGES ARREST OF THREE LIBYANS FOR WAR CRIMES 

In May 2019, the ICC’s Chief Prosecutor Fatou Bensouda called on the UN Security Council to execute three outstanding arrest warrants for Libyans accused of war crimes and crimes against humanity.  The ICC has been monitoring the situation in Libya since the overthrow of the former president in 2011, and has issued multiple warrants for the arrests of Gaddafi’s son (Saif Al-Islam Gaddafi), Al-Tuhamy Mohamed Khaled and Mahmoud Mustafa Busafy Al-Werfalli.  All three men have been accused of numerous crimes, including unlawful imprisonment of political enemies, torture and mass murder.   It is believed that all three men remain at large in Libya.  In her address to the Security Council, Bensouda emphasised that the arrest of these men ultimately depends on the co-operation of States, and that the fact these men remain at large “sends a message to the victims that alleged perpetrators can evade justice and continue to commit crimes with impunity”.   

TRUMP MAY PARDON US SOLDIERS ACCUSED OR CONVICTED OF WAR CRIMES 

In May 2019, Trump pardoned Matthew Behenna, a former US soldier who was convicted in 2009 of killing an Iraqi prisoner.  Later that same month, Trump is reported to have requested the immediate preparation of paperwork required to pardon numerous other US military personnel accused of or convicted of war crimes – one of whom (Special Operations Chief Edward Gallagher- see more below) is due to stand trial on charges of shooting unarmed civilians and killing an enemy captive with a knife while deployed in Iraq.  It is thought that Trump’s willingness to consider pardons risks eroding the legitimacy of military law, and it has even been suggested by war veteran and 2020 candidate Buttigieg that this “undermines the very foundations, legal and moral, of [the US]”.    

DUTCH COURT BLOCKS EXTRADITION TO ‘INHUMANE’ UK PRISONS

Judges in the Netherlands have suspended the extradition of a man wanted in the UK on suspicion of drug smuggling charges, due to concerns that conditions in British jails are “inhumane and degrading”. HMP Liverpool, the prison where the suspect is likely to be sent to, was reported to be rife with violence, drugs and filthy conditions and was the subject of specific Parliamentary discussion last year. The British justice ministry has “strongly refuted” these claims and the UK government has argued that poor prison conditions are not accepted as a reason to halt the extradition. The UK now has the opportunity to provide further evidence and assurances to the contrary, which if persuasive, mean the Dutch court is likely to consent to the request for extradition.

June

AN ICC SUBMISSION CALLS FOR THE PROSECUTION OF THE EU OVER MIGRANT DEATHS

A team of international lawyers has submitted to the ICC that EU member states should be prosecuted for the deaths of more than 12,000 migrants who drowned in the Mediterranean whilst fleeing Libya. The accusation is that officials and politicians knowingly created the “world’s deadliest migration route” and whilst the submission does not attribute specific responsibility to individuals, it does quote from national leaders such as Angela Merkel and Emmanuel Macron. The submission comes after the largely successful Mare Nostrum rescue policy was abandoned in 2014 and replaced with a new operation, Triton, which has been criticised by refugee groups and experts for putting ‘thousands at risk’.

SUDAN URGED TO COOPERATE WITH ICC OVER 'WAR CRIME' SUSPECTS 

Following recent developments in Sudan, the chief prosecutor of the ICC Fatou Bensouda, has pressed Sudan’s newly established transitional authorities to either hand over or prosecute ousted president Omar al‑Bashir and other suspects for alleged war crimes in Darfur. Following violence between protesters and security forces in June, negotiations on Sudan’s transition following Al-Bashir’s ousting in April collapsed. Sudan is legally obliged to transfer the suspects to the ICC to be tried at The Hague, unless it can prove it is willing and able to prosecute them in Sudan. Bensouda’s willingness to engage presents an important opportunity for Sudan to move away from their past of non-cooperation and to instead show their commitment to law and to justice for the victims.

A US NAVY SEAL ON TRIAL ACCUSED OF WAR CRIMES 

Eddie Gallagher, a US Navy Seal accused of stabbing a teenage Islamic State fighter to death and indiscriminately shooting Iraqi civilians, has been tried and acquitted. Gallagher also faced allegations of posing for photos next to the ISIS fighter’s corpse and for intimidating other SEALs to prevent them from reporting his activities. In an unexpected turn of events, 40-year-old special warfare operator chief was released days ahead of his trial after the prosecution acknowledged tracking the emails of the defence team. Notably, Chief Gallagher’s case has attracted the attention of President Trump, who was reportedly considering a pardon if Gallagher was found guilty.

UK ARMS SALES TO SAUDI ARABIA RULED UNLAWFUL BY THE COURT OF APPEAL  

‘Campaign Against the Arms Trade’ campaigners have won a legal challenge over the UK government's decision to allow arms exports to Saudi Arabia, for use in the war in Yemen. The Court of Appeal ruled that the decision to authorise was unlawful on the basis that they found that the UK failed to adequately assess the “clear risk” that the arms might be used in serious violation international humanitarian law in Yemen. The ruling also found that it was unlawful for the UK to dismiss a wide range of credible evidence provided by UN bodies and human rights organisations. Liam Fox, the International Trade Secretary, has said that the UK would not grant any new licences for export to Saudi Arabia while it considers the implications of the judgment, whilst a spokeswoman for Theresa May confirmed the government would be seeking permission to appeal.

CHAD REBEL CHIEF CHARGED WITH CRIMES AGAINST HUMANITY IN FRANCE

General Mahamat Nouri, the exiled leader of the Union of Forces for Democracy and Development (UFDD), has been detained at his home in western Paris. He has been held in provisional detention in connection with his involvement in alleged crimes against humanity between 2005 and 2010, involving the recruitment of child soldiers in Chad and Sudan and for his participation in a criminal conspiracy to commit a crime against humanity. The UFDD, a rebel group founded by General Nouri, is one of the main groups working to oppose the regime of incumbent President Idriss Deby Itno in Chad. Nouri has rejected the allegations and will look to appeal the indictment and detention.

ICC PROSECUTOR SEEKS BANGLADESH AND MYANMAR INVESTIGATION  

ICC prosecutor Fatou Bensouda has said she would ask judges for permission to open a full investigation into alleged crimes against humanity committed through the deportation of members of the Rohingya Muslim minority of Myanmar. In what has been said to be the world’s fastest growing refugee crisis, since August 2017, hundreds of thousands of Rohingya people are said to have fled persecution and violence in Myanmar for refuge in Bangladesh. Bensouda’s statement comes after the ICC ruling in September 2018 that the Court may exercise jurisdiction over some crimes in the region, despite Myanmar not being a State party to the Statute. This is because an element of the crimes (the crossing of a border) occurred on the territory of Bangladesh (which is a member of the court).