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Saif al-Islam Gaddafi Allowed to Run for Libyan Presidency Despite War Crimes Conviction

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A court in Libya has approved Saif al-Islam Gaddafi, son of the late dictator Muammar Gaddafi, to run in the upcoming presidential election.[1]  Experts believe that Gaddafi may be able to win the support of Libyans that yearn for the stability of his father’s regime before the civil war.  Other Libyans are outraged that Gaddafi can run in the election despite his prior conviction for war crimes during the revolution.

 

History of the Gaddafi Family

Colonel Muammar Gaddafi ruled Libya for 42 years, his son serving as his right-hand man and heir-apparent.[2]  Muammar Gaddafi was overthrown in a bloody civil war in 2011, caused by a NATO-backed intervention and Libyan protests as part of the Arab Spring.[3]  Without structural plans of what was to come after the regime, Libya fractured into regional militias that utilized force to obtain political power.[4]  Today, control of Libya is split between the official government and the Libyan National Army, with ISIS maintaining a sizeable influence in the country.[5]  The upcoming presidential election is thought to be a crucial factor in bringing the country political stability and ending its 10-year crisis.

 

After his father’s fall in 2011, Saif al-Islam Gaddafi was captured by a Libyan revolutionary militia.  In 2015, he was sentenced in absentia to the death penalty for war crimes, including killing protestors during the revolution.[6]  He was held captive in the northwestern town of Zintan until his release in 2017.[7]  Gaddafi’s sentence was eventually overturned for violations of due process and the United Nations called on Libyan authorities to surrender Gaddafi to the International Criminal Court (ICC).[8]  As of December 2021, Gaddafi still has not been brought to the ICC and is still wanted for crimes against humanity committed during the civil war.[9]

 

After a decade of silence, Gaddafi reemerged in November 2021 to register as a presidential candidate.[10]   While he was initially disqualified for his prior conviction, he successfully appealed the disqualification and is permitted to run for Libyan presidency.  While considered to be a controversial candidate, Gaddafi is thought to appeal to voters among certain tribes and regions which benefited under his father.[11]

 

Complications to the election process

Saif al-Islam Gaddafi is one of numerous divisive candidates for the Libyan presidential election.  Khalifa Haftar, commander of the Libyan National Army, was originally disqualified from the race for his prior conviction of war crimes committed during the civil war.[12]  Like Gaddafi, Haftar appealed his disqualification and was permitted by the Tripolis Appeal Court to run as a presidential candidate in the election.[13]  Abdul Hamid al-Debeibah, leader of the interim government, also added his name to the list of candidates despite his pledge to not run for the presidency.[14]  Due to a number of court cases against candidates such as Gaddafi, the electoral commission has yet to announce a finalized list of candidates for the election poll.[15]

 

It is still unknown when the presidential election will take place. Originally scheduled to be held on December 24, the election was called off just two days beforehand by the Libyan parliamentary committee.[16]  While the country’s High National Electoral Committee suggested pushing the election to January 24, 2022, the parliamentary committee refused, stating that an election on this date would have the same fate as the one originally set for December 24.[17]  UN convoy Stephanie Williams called upon the parliament to “live up to its national responsibilities” and address recommendations to push the election process forward.[18]  While western governments looked forward to this election as the opportunity to unite a fragmented country, it is becoming increasingly uncertain if there will be a peaceful devolution of power.

 

The January issue of the IELR will have a more comprehensive discussion of Gaddafi’s war crimes allegations and the current issues facing the Libyan presidential election.

 

[1]    Matthew Loh, The son of Libyan despot Muammar Gaddafi has been OK-ed to run for president, even though he was convicted and sentenced to death for war crimes, Business Insider, December 3, 2021.

[2]    Bill Bostock, The son of Muammar Gaddafi, the Libyan despot whose toppling characterized the Arab Spring, emerged in public for the first time in 10 years to run for president, Business Insider, November 15, 2021.

[3]    Matthew Loh, supra.

[4]    Peter Beaumont, ‘War weary’ Libya reflects 10 years on Gaddafi and Arab spring, The Guardian, April 26, 2021.

[5]    Bill Bostock, supra.

[6]    Stephanie Nebehay, The UN says Gaddafi son’s trial was unfair and that he should be sent to the ICC, Business Insider, February 21, 2017.

[7]    Heba Saleh, Gaddafi’s son given the go-ahead to run for Libya presidency, Financial Times, December 2, 2021.

[8]    Id.

[9]   The Prosecutor v. Saif Al-Islam Gaddafi, Case No. ICC-01/11-01/11.

[10]   Bill Bostock, supra.

[11]   Heba Saleh, supra.

[12]   Middle East Eye, Libya’s parliament refuses to set new date for presidential election, December 27, 2021.

[13]   Egypt Today, Libyan court allows Khalif Haftar back to presidential race, December 6, 2021.

[14]   Middle East Eye, supra.

[15]   Id.

[16]   Id.

[17]   Id.

[18]   Id.

2021 Holiday Retrospective

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We at the IELR send you the best wishes for a warm and joyous holiday season.  2021 was momentous for the international enforcement community, and we are grateful to have had you following along with our coverage during our 37th year of discussing international enforcement developments.

Contributors

We are grateful for the continuing long partnership with Professor Michael Plachta and for contributions from practitioners and professors, including Dr. Ted Bromund, Frederick T. Davis, Michele Estlund, Dr. Scott MacDonald, Dennis Boyle, Konstantinos Magliveras, Yuriy Nemets, Spencer A. Hill, Peter D. Hardy, Kateryna Boguslavska, Matteo Formaggi, and Linda Friedman Ramirez. Miranda Bannister finished her tenure as assistant editor in February.  Marwah Adhoob, who specialized in criminology as an undergrad, energetically replaced her.  Our legal assistants Sara Kaufman and Emma Byrne ably contributed articles. Our interns, Mitchell Beebe, Elena Botts, Kayla DeAlto, Austin Max Scherer, Teddy David, Jamie Jang, Kenneth Boggess, and Julia V. Brock, contributed some great pieces.

The following is a highlight of some of the articles we covered.

International Criminal Court

The International Criminal Court was prominent in our coverage. Plachta discussed the territorial jurisdiction of the ICC in the Palestine/Israel Case as well as the ICC Prosecutor closing a preliminary examination in Colombia and concluding an agreement with the Colombian government. K. DeAlto discussed the Central African Republic’s surrender of Said Abdel Kani to the ICC.  M. Beebe and Zagaris wrote articles about the U.S. District Courts’ blocking President Trump’s executive order, sanctioning ICC officials. Zagaris discussed President Biden’s revocation of the Trump executive order.

War Crimes and Crimes against Humanity

On war crimes and crimes against humanity, Brock discussed the reversal by the South Korean court of the 2018 on “comfort women” and ordered Japan to pay reparations to the families of 12 women forced to work as sex slaves. Plachta discussed the ECHR’s decision on German responsibility for an air strike in Afghanistan.  David and Kaufman respectively discussed German courts’ convictions of a former Syrian secret police officer and a Syrian military doctor for crimes against humanity and Adhoob discussed a German court’s conviction of a woman for crimes against humanity in the death of a Yazdi girl in Syria.  Likewise, Adhoob detailed the enforcement actions of the UN with regards to genocide, such as UN’s opening of an inquiry into Sri Lanka’s alleged war crimes during its civil war as well as the UN investigation team’s conclusion that ISIL’s crimes against Yazidis constitute genocide.  Adhoob discussed a report by a U.S. law firm, finding France responsible for the Rwandan genocide.  Zagaris and Adhoob wrote about the UN Human Rights Council’s adoption of a resolution to start a Commission of Inquiry on the latest Israel-Palestine conduct. Jang discussed the African Union’s starting of a Commission of Inquiry on the war in Ethiopia. David wrote about the conviction in a Swiss court of a Liberian warlord, putting the spotlight on universal jurisdiction and Liberian accountability.  Zagaris covered the French Supreme Court’s overturning of the dismissal of complicity for crimes against humanity against multinational enterprise Lafarge for its conduct in Syria. Boggess discussed the UN Human Rights Council’s Independent Fact-Finding Mission renewing its mandate as a UN report warns of war crimes and crimes against humanity. Ramirez wrote about a judgment of the Inter-American Court of Human Rights, finding Colombia responsible for a journalist’s abduction twenty years before.

Tax transparency and Enforcement

With respect to tax transparency and enforcement, Zagaris wrote about the EU Parliament’s adoption of a resolution to toughen the tax haven blacklist, the OECD’s call for action to disrupt, prevent, and prosecute criminal conduct by professional enablers, the OECD’s new edition of fight tax crime, and the many cases against tax enablers, including the cum-ex dividend fraud cases, as well as a federal court’s approval of a John Doe Summons for a Panamanian law firm dealing with U.S. clients.  Scherer also wrote about how charges against professionals illustrate the shifting legal landscape for professional enablers. Zagaris also discussed the U.S. Tax Court decision against a constitutional challenge to passport denial for delinquent taxpayers and about a founder of a Russian bank pleading guilty to tax fraud, including falsifying his expatriation statement.  Zagaris discussed the Nigerian government’s start of voluntary offshore assets London declaration facilities and its application to foreign enablers.  Zagaris wrote about a CJEU decision mandating enforcement of tax information request even without the taxpayer’s specific name and identity.

Money Laundering, Bank Secrecy and Transparency

On money laundering, bank secrecy and transparency, Boguslavska discussed how the 10th Basel AML index highlights four worrying gaps in global AML efforts.  Zagaris wrote several articles on the Anti-Money Laundering Act of 2020, as well as FinCEN’s proposed regulations on beneficial ownership and the ANPRM on beneficial information on real estate purchases. MacDonald wrote about Suriname’s corruption and money laundering challenges.  Adhoob and Zagaris wrote about the FinCEN notice informing financial institutions of money laundering dangers from illicit art and antiquities trade. Plachta discussed the Council of Europe’s adoption of a resolution and recommendation on strengthening FIUs.  Zagaris discussed the Cayman AML regulator’s crack down after the FATF greylisting.   Scherer discussed how the Xizhi Li conviction showed an application of money laundering techniques for laundering drug proceeds on behalf of foreign drug-trafficking organizations. Zagaris discussed the implications of the Pandora Papers and the proposed new enforcement actions of the European Parliament in the wake of the Pandora Papers.

Counter-terrorism, Economic Sanctions and Human Rights

Counter-terrorism, economic sanctions and human rights were continuing topics.  Plachta discussed the adoption by the European Commission of a new counter-terrorism agenda and a proposal for amending Europol regulation.  Adhoob discussed the ACLU’s suit on alleged discrimination by the U.S. “no-fly list” against Arabs and Muslims.  Zagaris covered China’s adoption of blocking legislation and counter-sanctions. Bannister covered the Biden Administration’s countering the Trump Administration’s sanctions against the Houthi rebels in Yemen.  Zagaris discussed the ruling of the EU Advocate General that a German telecom cannot cancel a contract with an Iranian bank without showing the cancellation was not due to U.S. sanctions.

Counter-terrorism financing,

On counter-terrorism financing, Adhoob discussed U.S. prosecution of a woman extradited by the Dutch for terrorist financing through a charity.  Zagaris wrote about a French donor’s financial contributions to the U.S. alt-right before the capitol assault and the need to apply counter-terrorism financial enforcement tools as well as a meeting between G7 and EU Security ministers on cooperation on countering racially and ethnically motivated extremism.

Transnational Corruption and Asset Forfeiture

With respect to transnational corruption and asset forfeiture, Zagaris discussed the Justice Department’s civil forfeiture suit against two alleged Ukrainian kleptocrats, a settlement by Deutsche bank of an FCPA and commodities case.  Bannister and Adhoob covered in separate articles the fishrot scandal in Namibia, where Icelandic Samherji employees allegedly paid bribes to Namibian government officials for rights to fish for horse-maskerel. Boyle discussed the Biden Administration’s policy toward Central America and the challenges posed by corruption. Zagaris contributed a piece on U.S.-N. Triangle Enhanced Engagement Act setting the stage for new U.S. policy. Zagaris discussed the British Commission on Inquiry’s investigation of alleged corruption in the BVI as well as the Biden memorandum declaring anti-corruption a core U.S. national security interest.  Zagaris wrote about the Dutch court’s agreement with a report calling the Santos-linked Angolan energy deal corrupt.  Zagaris discussed the Amec Foster Wheeler’s global corruption settlement with the U.S., U.K., and Brazil.  Zagaris discussed the return by the U.S. government of an additional $452 million in forfeited 1MDB funds to Malaysia as well as the DOJ’s return of over $32m in forfeited funds to FIFA victims.

Illegal Production and Use of Weapons

With respect to the illegal production and use of weapons, Zagaris discussed a suit by the Mexican government against U.S. arms manufacturers for illicit trafficking in arms as well as the guilty plea in the U.S. in the first successful prosecution of exportation and manufacturing of firearms to the Mexican Cartels. Adhoob discussed the U.K. and U.S. sanctions on seven Russian agents and entities over the Alexi Navalny poisoning. Zagaris discussed a ECtHR’s decision finding Russia responsible for the assassination of Litvinenko and Britain naming a third Russian suspect in the poisoning of Skripal.

Extraterritorial Jurisdiction

Extraterritorial jurisdiction remained controversial.  Fred Davis discussed the Second Circuit’s decision, opening the door a bit to non-citizen defendants challenging a court’s jurisdiction in criminal cases and also the partial clarification by the Second Circuit of the procedures applicable to prosecution of foreign sovereign owned enterprises.  Zagaris discussed Bahrain’s return of a U.S. citizen to the U.S. to face charges of murdering his mother in Bahrain as well as an Italian court’s ordering four Egyptians to stand trial in the kidnapping and killing of an Italian student in Egypt. Zagaris wrote about a Spanish court’s ordering Banco de Chile to set aside $103 million for its role in money laundering from the Pinochet expropriations and about the EU Commission proposals for major revisions in its AML/CFT laws.

Recovery and Return of Cultural Property

On the recovery and return of cultural property, Zagaris discussed the German-Nigeria agreement on the return of Benin bronzes as well as the DOJ forfeiture action for 10th century statute looted from Cambodia, and the return by U.S. Homeland Security of hundreds of looted artifacts to Mali.  Adhoob covered the U.S. return of looted artifacts to Iraq stolen after the U.S. invasion as well as the discussion between Met officials and U.S. investigators of returning to Cambodia artifacts stolen from ancient sites.

Transnational Organized Crime

On transnational organized crime, Plachta discussed the consequences and prospects for the UN (Palermo) Convention against Transnational Organized Crime on its 20th anniversary.  Adhoob discussed the arrest by Italian police of suspected Black Axe members for fraud and other serious crimes.  Boggess covered the international dark web bust operation DarkHunTOR following the dark market seizure by U.S. and EU law enforcement.

On international narcotics enforcement, transnational organized crime and corruption, Zagaris wrote about Mexico exonerating its ex-defense chief and enacting a law pausing enforcement cooperation with the U.S.  Bannister wrote about the UN Commission on Narcotic Drugs’ vote to remove cannabis from the list of Schedule IV narcotics.  Zagaris wrote about the U.S. detention of the wife of “El Chapo” and the guilty plea to violating the Kingpin Act by the daughter of the head of the Cartel Jalisco Nueva Generación.  Hill and Hardy discussed a UN report targeting corruption and illicit cross-border finance.  Kaufman covered ANOM, a global covert investigation conducted by law enforcement worldwide through an encrypted App, yielding 800 arrests. Zagaris wrote about Mexico’s suit in U.S. court in Florida to recover assets from former security chief linked to the Sinaloa cartel.  Adhoob discussed the Italian police’s dismantlement of an international drug trafficking ring operated by the ‘Ndrangheta mafia clan.

International Environmental Enforcement

With respect to international environmental enforcement, Zagaris covered Kenya’s extradition of its citizen for trafficking rhino horns, elephant ivory, and heroin. Byrne discussed illicit ivory trafficking from Angola to Vietnam.  Adhoob wrote about the S. African arrest of a hunter for illegal possession of rhino horns.  Zagaris discussed how U.S. prosecutions of three wildlife trafficking violations show the rising incidence of these crimes.

Migration Enforcement

Migration enforcement received significant focus.  Byrne discussed the INTERPOL operation targeting human trafficking and migrant smuggling in approximately 24 countries.  Adhoob covered the U.S. State Department’s 2021 trafficking in persons report and the impact of misinformation and Covid-19 on human trafficking. Adhoob also discussed a State Department’s lawyer’s resignation due to a Biden Administration policy on asylum Kaufman discussed the 5th Circuit’s decision rejecting the Biden Administration’s efforts to end Migration Protections Protocols.  Plachta wrote about the EU’s responses to human smuggling in the Belarus border crisis.

International human rights and enforcement,

With respect to international human rights and enforcement, Plachta discussed the EU adoption of Magnitsky-type global human rights sanctions regime.  Magliveras discussed the first application of sanctions under the EU’S Magnitsky Act on Russia. Zagaris wrote about Turkey’s arrest of an Iranian dissident’s coinciding with Freedom House’s transnational repression report as well as about the signing by 58 nations of a declaration against arbitrary detention of foreign and dual nationals. Botts wrote about OFAC’s naming three Bulgarians under the Global Magnitsky Act for corruption.  Kaufman discussed how events in Haiti and C.A.R. show the threats posed by mercenaries to international peacekeeping.  Adhoob covered ECOWAS’ demanding answers in the alleged detention of Mali’s former interim leaders as well as Qatar’s imprisoning a Kenyan for blogging about low-income Kenyan migrants work conditions in Qatar.

Extradition and Extradition Alternatives

Developments on extradition and extradition alternatives remained critical.  Ramirez and Boggess wrote articles about the extradition of Venezuelan diplomat Alex Saab to the U.S., notwithstanding his claims of diplomatic immunity.  Zagaris wrote several articles about the Assange extradition decisions by U.K. courts and the U.S. extradition of the father and son for helping Carlos Ghosn escape from Japan.  Zagaris covered the S. African court’s overruling the Justice Minister in ruling the former Mozambique Finance Minister will be extradited to the U.S. rather than Mozambique.

Nemets discussed how the U.S. Immigration court’s handling of INTERPOL Red Notices and diffusions suggests a uniform approach.  Estlund and Bromund summarized and assessed the 2019 changes in INTERPOL’s rules on the processing of data.  Zagaris discussed the CJEU decision against detention for INTERPOL Red Notice due to ne bis in idem (dual criminality).

International Evidence Gathering

With respect to international evidence gathering, Jang discussed how the Gupta brothers’ corruption scandal invoked the ratification of a new mutual legal assistance and extradition treaty between S. Africa and the UAE.  Adhoob covered the Netherlands’ funding the Iraq UNITAD witness protection program to promote accountability for crimes committed by ISIL.

Economic Integration and International Enforcement

Plachta contributed many articles on economic integration and international enforcement, including the European Parliament’s call for improvement of implement and application of the European Arrest Warrant (EAW), and the EU Court of Justice’s rejection of “automatic refusal” of EAWs issued by Polish authorities. Zagaris discussed the Eurojust’s new funding initiative for joint investigation teams.  Scherer discussed the EU whistleblower protection directive the Jonathan Taylor extradition.  Plachta covered the adoption by the Council of Europe of a resolution on political responsibility for corruption as well as the European Commission releases of three proposals to strengthen and enhance police cooperation across the EU.

Maritime Piracy

On maritime piracy, Scherer discussed the shipping industry task force initiative against maritime piracy in the Gulf of Guinea. Adhoob discussed the Nigerian high court’s sentencing of 10 pirates for the hijack of a Chinese vessel.

International Tribunals

With respect to international tribunals, Zagaris discussed the affirmation by the Appeals Chamber of the International Residual Mechanism for Criminal Tribunals of the conviction of Ratko Mladić’ for genocide, crimes against humanity and war crimes, as well as the closure of the Special Tribunal for Lebanon and how the closure raises questions about international tribunals.

International Sex Trafficking

Mr. Zagaris contributed articles on international sex trafficking, especially the U.S. and Canadian charges against the Canadian fashion tycoon Peter J. Nygard.

Online Child Sex Exploitation Abuse

With respect to online child sex exploitation abuse, Zagaris covered U.S. indictments and INTERPOL’s pursuit of international enterprises and individuals involved in online sexual exploitation.  He wrote about the EU Justice & Home Affairs Council initiatives on the digital dimension of child sexual abuse.

Cybercrime

Cybercrime continued to grow exponentially. Zagaris discussed cooperation between the EU and eight countries in taking down dangerous the malware EMOTET, the DOJ’s participation in global disruption of NetWalker ransomware, and Australia’s extradition of two defendants in an auto-subscribing cyber fraud scheme.  Zagaris discussed the U.S. indictment against three N. Korean military hackers.  Adhoob discussed the imposition by the Biden Administration of sanctions against Russia for alleged election interference and SolarWinds cyber hacks as well as the guilty plea of a crypto expert to assisting N. Korea evade sanctions.  Zagaris covered U.S. sanctions against a Russian-owned crypto-exchange for ransomware activities as well as the U.S. indictment and sanctions against Iranians for cyber-enabled disinformation regarding the 2020 Presidential Campaign.  Scherer wrote about cases involving the seizing illicit proceeds of and combating ransomware attacks.  Zagaris covered the guilty plea by the director and promoter of BitConnect for its participative in a massive fraud conspiracy. Formaggi discussed China’s declaration of all cryptocurrency transactions illegal while the U.S. and EU prepared further crypto regulation.  Zagaris discussed the arrests and seizures by 17 countries of alleged ransomware extortionists.  Plachta covered the adoption by the Council of Europe of the Second Protocol to the Cybercrime (“Budapest”) Convention.

International Anti-trust Enforcement Cooperation

On international anti-trust enforcement cooperation, Zagaris discussed the DOJ’s Antitrust Division summary of its 2020 international achievements.

Export Control and Economic Sanctions

With respect to export control and economic sanctions, Boggess discussed the CEO quitting after the U.S. Commerce Department blacklisted Israeli spyware firm NSO Group. Zagaris wrote about the Mashreqbank settlement with OFAC, the Federal Reserve and NYDFS for violating the Sudan sanctions.

Illegal, Unregulated, and Unreported Fishing

With respect to illegal, unregulated, and unreported fishing, Adhoob wrote about Bolivia’s signing an MOU to strengthen compliance/transparency in the fishing industry.

French Supreme Court Overturns Dismissal of Complicity for Crimes against Humanity against Lafarge in Syria

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On September 7, 2021, the French Supreme Court (Court of Cassation) overturned the decision of the Paris Court of Appeal, dismissing a charge of complicity in crimes against humanity against Lafarge, now part of Switzerland-listed Holcim.  After an internal investigation, Lafarge admitted that its Syrian subsidiary paid armed groups to protect its workers at its Syrian plant.

In 2019, a French appellate court dismissed the crimes against humanity charge.  It reasoned that Lafarge did not deliberately associate itself with those crimes.[1]

The French Supreme Court remanded the case so that magistrates can re-examine Lafarge’s request to dismiss the case.  Until now, French courts have not tried any French entity for crimes against humanity even though French courts have jurisdiction over such offenses.[2]   The  French  Criminal  Code  of  Procedure  (CCP) establishes  universal jurisdiction  over  specified  offenses  emanating  from  international  conventions ratified  by  France.[3]

Under  French  law,  crimes  against  humanity  are  generally  defined  according  to the  Rome  Statute, with some  difference.  For instance, the CCP  requires  that  a crime against  humanity  be  part  of  a concerted plan.[4]

The French prosecution accuses Lafarge of paying close to $15.3 million to jihadist groups, including the Islamic State (IS).[5]

In October 2016, the prosecution started after the French Ministry of Economy and Finance brought a complaint against Lafarge.

Thereafter, Lafarge started an internal investigation.  It learned that the Syrian subsidiary gave funds to third parties to arrange deals with various armed groups.[6]

In 2019, the Court of Appeal dismissed the crimes against humanity charge.  It reasoned that it accepted that the payments were not to help IS’s agenda of executions and torture.  Nevertheless, it ruled that the prosecutor could proceed on three other charges: financing terrorism, violating an EU embargo, and endangering the lives of others.[7]

In its decision the French Supreme Court explained “one can be complicit in crimes against humanity even if one doesn’t have the intention of being associated with the crimes committed.”

The Court reasoned that “Knowingly paying several million dollars to an organization whose sole purpose was exclusively criminal suffices to constitute complicity, regardless of whether the party concerned was acting to pursue a commercial activity.” [8]

Analysis

The significance of the Lafarge prosecution concerns two important issues: accountability of multinational enterprises operating in conflict zones for contributing financially to the perpetration of atrocities by terrorist groups or other entities;[9] and the responsibility of parent companies for the illegal activities of their subsidiaries abroad.[10]

In this regard, in 2017, France enacted the first “duty of vigilance” law in Europe.  It requires companies to prevent human rights abuses in their supply chains worldwide.  It obligates them to pay damages if they fail to do so.[11]

The case is also important for its illustration of how universal jurisdiction applies with respect to crimes against humanity.

Additional issues facing Lafarge are investigations in the United States.  The U.S. has imposed sanctions on Syria during the last ten years.  They include the regime of Syrian President Bashar a-Assad and terrorist groups, such as IS.   The internal investigation suggests the risks for U.S. sanctions are limited, partly since the improper payments were in cash and did not, to the company’s knowledge, enter the U.S. banking system.  Normally, multinational enterprises violating U.S. sanctions send U.S. dollars that are cleared in the U.S.[12]

The current issue of the IELR will have a more comprehensive discussion of the Lafarge case.

[1]    Sarah White, Court blocks Lafarge bid to scrap Syria crime against humanity charge, Reuters, Sept. 7, 2021.

[2]    Id.

[3]    Open Society Justice Initiative, Universal Jurisdiction  Law and Practice in France 4 (February, 2019), citing French Criminal Code,  Article 689.

[4]    Open Society Justice Initiative, supra, at 5.

[5]    AFP, French firm Lafarge loses bid to dismiss ‘crimes against humanity’ case in Syria, Sept. 7, 2021. www.france24.com.

[6]    AP, Lafarge charges of crime against humanity dropped on appeal but others remain, July 11, 2019, https://www.france24.om.

[7]    AFP, supra.

[8]    Id.

[9]    Madeline Young, Lafarge’s Case Cemented:  Holding Corporations Liable for Crimes against Humanity, Emory Int’l L. Review: Recent Developments, 1 (2021), citing Claire Tixeire et al, Holding Transnational Corporations Accountable for International Crimes in Syria:  Update on the developments in the Lafarge Case (Part II), Opinio Juris (July 27, 2020).

[10]   Young, supra.

[11]  Id., citing Tixeire et al, supra.

[12]  David Keohane and Ralph Atkins, Syrian operation: Lafarge faces probe over Isis payments, Financial Times, Mar. 7, 2018.

Former Liberian Warlord Convicted in Landmark Swiss Judgment

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By Teddy David[1]

On June 18, 2021, the Swiss Federal Criminal Court convicted Liberian warlord Alieu Kosiah, 46, of crimes against humanity committed during the country’s first civil war, fought from 1989 to 1996. The decision has raised issues of a lack of accountability in Liberia itself and the use of universal jurisdiction to prosecute war crimes outside of the jurisdiction in which they were committed.

The Crimes of Kosiah

Swiss authorities arrested Kosiah, then a Swiss resident, in 2014 after seven Liberian victims filed criminal complaints against him, later becoming plaintiffs in the prosecution. Swiss prosecutors then conducted an arduous, five-year investigation that culminated in a March 2019 indictment. Originally slated to begin in April 2020 but delayed due to the COVID-19 pandemic, the trial proceeded in two stages, the first in December 2020 and the second from February to March 2021.

The 25 charges concerned crimes committed between 1993 and 1995 in the northwestern Lofa County of Liberia, where Kosiah was then a leader of the United Liberation Movement of Liberia for Democracy (ULIMO). Witnesses graphically testified to summary executions, brutal torture, the displacement of civilians, and forced marches. In the most gruesome charge, witnesses told of an accomplice of Kosiah, called Ugly Boy, who, along with Kosiah and others, cut out and ate the heart of a schoolteacher.

The court found Kosiah guilty on 21 out of 25 charges, including the summary execution of more than a dozen civilians and unarmed soldiers, numerous other murders, rape, pillage, and cannibalism. He was sentenced to 20 years in prison, the most allowed under Swiss law for cases prosecuted under the doctrine of universal jurisdiction, and his long pretrial detention of over six years will be deducted from his sentence. Kosiah will also be expelled from Switzerland for 15 years after his eventual release.

Civil Law and Universal Jurisdiction in Switzerland

The arrest and trial was largely made possible by the direct initiative of several of Kosiah’s Liberian victims, aided by nongovernmental human rights groups. Civil law systems, like that of Switzerland, allow victims to be private plaintiffs in criminal prosecutions, having counsel and attempting to overrule prosecutors when they do not act to effectively protect the victims. Systems of common law – employed in the United States, United Kingdom, and British Commonwealth – do not allow for the same flexibility and thus are less conducive to cases like the one against Kosiah.

The main doctrine that allowed this trial to proceed, though, is that of universal jurisdiction. This principle of international law allows any nation’s courts to prosecute a range of crimes against humanity. These offenses are held to be so egregious that the accused are not just criminals within the jurisdiction in which the crimes were committed, but rather are hostis humani generis – enemies of all humankind. Most countries, including the United States, acknowledge some forms of universal jurisdiction, but the principle is applied especially expansively in many European legal systems.

However, in recent years, Switzerland has not been known as a leader in war crimes prosecutions, despite its notoriety as the birthplace of the Geneva Conventions. Since the nation’s 2011 adoption of a universal jurisdiction statute, human rights organizations have criticized Swiss authorities for providing minimal resources to the extremely resource-intensive investigations of war crimes. In such cases, witnesses almost all live overseas, and the alleged crimes were often committed years, even decades before – as in the case of Kosiah – making fact-finding efforts much more demanding and costly than a typical, domestic investigation.

According to Philip Grant, director of the Swiss-based human rights group TRIAL International, Switzerland lags far behind other European countries known for employing universal jurisdiction. “Without the nongovernment, civil society organizations, these cases would be nowhere,” Grant told the New York Times.

During the trial stage, human rights groups also criticized the Swiss court for the strictly limited transparency of the trial, especially since it was one of the only prosecutions of Liberian war criminals in the twenty-five years since the widespread atrocities were committed. The proceedings were not streamed via video, and U.S.-based Human Rights Watch reported that it was denied access to the second phase of the trial.

Future Accountability

Despite criticism of Swiss authorities, the conviction has still been hailed by human rights leaders as a landmark in accountability for the decades-old atrocities of Liberia’s two civil wars. Alain Werner, director of the Geneva-based legal group Civitas Maxima, described the verdict to the New York Times as “a beautiful victory for [the witnesses’] courage, their resilience, and their quest for justice.”

Related war crimes cases are also underway in Finland – against rebel leader Gibril Massaquoi – and in France – against Kunti Kumara, another former leader of ULIMO. This piecemeal, international approach, however, has only intensified the pressure on Liberia itself to hold its own citizens accountable for their offenses. After decades of inaction in Liberia, President George Weah has made only vague statements of his willingness to systematically pursue war crimes prosecutions within his country. Moving forward, if Liberia itself remains inactive, pressure may mount to initiate more thorough prosecutions in the International Criminal Court or to establish ad hoc war crimes tribunals to bring justice for decades-old crimes.

[1]    Teddy is currently a rising senior at Vassar College majoring in history and minoring in French and Francophone Studies.

ASIL Task Force Recommends Steps for Biden’s Engagement with the International Criminal Court

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On April 28, 2021, a Task Force of the American Society of International Law issued a report recommending options for the Biden Administration and Congress to engage with International Criminal Court (ICC).

Background

The ASIL also held a webinar launch of the report.  Participating in the webinar were: Catherine Amirfar, President of the ASIL; Todd Buchwald, former Ambassador, Office of Global Criminal Justice, U.S. Department of State; and Beth Van Schaack, the Leah Kaplan Visiting Professor in Human Rights at Stanford Law School and former Deputy to the Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice of the U.S. Department of State.

In 2009, as the Obama took office, an earlier ASIL Task Force, chaired by Ambassador William H. Taft IV and Judge Patricia M. Wald, did a report examining U.S. policy toward the ICC and making recommendations to help the incoming Obama Administration in developing its policy.

The Report

Section I provides a background about the U.S. relationship with the ICC.  Section II gives the basic legislative framework that governs U.S. relations with the ICC and the evolution of the framework. Section III looks at various ways in which the U.S. has engaged on ICC issues.  Section IV describes recent developments relevant in assessing the options for U.S. engagement with the ICC in the coming years. The discussion includes the ICC’s investigations in the “situation in Afghanistan” (potentially involving allegations of torture by U.S. personnel) and the “situation in Palestine” (potentially involving allegations against senior Israeli officials, including in connection with settlements policy).  Section IV also provides background on ongoing ICC review and reform efforts.

Section V describes a broad range of ways in which many elements of ICC policy intersect with other U.S. interests.  Section VI provides the Task Force’s recommendations for how the Biden Administration should engage with the ICC on a pragmatic basis moving forward.

Task Force’s Recommendations

The Task Force identified four categories of recommendations:  (A) initial steps to “clear the air,” revise the tone in the aftermath of U.S. government’s attacks on the Court, and strengthen the U.S. approach to multilateralism and its shared goals with the ICC; (B) 18 Steps that should be taken regardless of specific concerns about the ICC; (C) dealing with the biggest issues – the Afghanistan and Palestinian situations and the ICC review and reform; and (D) support for particular ICC Cases.

Most likely the Biden Administration will carefully consider the report and recommendations, so it is worth reviewing for persons interested in the ICC and U.S. government policy towards it.  The report portends a more positive engagement by the Biden Administration with the ICC. The current issue of the IELR will have a more comprehensive discussion of the report, its recommendations and implications.

President Biden Revokes Executive Order Imposing Sanctions on the International Criminal Court

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On April 1, 2021, United States President Joseph R. Biden terminated the national emergency declared in Executive Order 13928 of June 11, 2020, which blocked property of certain persons associated with the International Criminal Court (ICC).

Biden Executive Order

The new Executive Order explained that the U.S. continues to object to the ICC’s assertions of jurisdiction over personnel of such non-States Parties as the U.S. and its allies without their consent or referral by the United Nations Security Council.  President Biden said the U.S. “will vigorously protect current and former United States personnel from any attempts to exercise such jurisdiction, the threat and imposition of financial sanctions against the Court, its personnel, and those who assist it are not an effective or appropriate strategy for addressing the United States’ concerns with the ICC.”

Statement by U.S. Secretary of State Antony J. Blinken

On April 2, 2021, U.S. Secretary of State Antony J. Blinken in a press statement explained that, as a result of the new Executive Order, the U.S. has removed the sanctions imposed by the prior administration against ICC Prosecutor Fatou Bensouda and Phakiso Mochochoko, the Head of Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor.

According to Blinken, the U.S. continues to disagree strongly with the ICC’s actions concerning the Afghanistan and Palestinian situations.  Blinken also reiterated the U.S. government’s objection to the ICC’s efforts to assert jurisdiction over personnel of non-States Parties such as the U.S. and Israel.  Blinken continued that the U.S. concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions.

According to Blinken, U.S. support for the rule of law, accesses to justice, and accountability for mass atrocities are significant U.S. national security interests that are protected and furthered by engaging with the rest of the world to meet the challenges.  The U.S. government leadership was important in forming the Nuremberg and Tokyo Tribunals after World War II and bringing accountability in the Balkans, Cambodia, Rwanda and elsewhere.  The U.S. government leadership has supported various international, regional, and domestic tribunals, and international investigative mechanisms for Iraq, Syria, and Burma, to bring justice for victims of atrocities.

Blinken mentioned the U.S. is encouraged that States parties to the Rome Statute are considering a large range of reforms to assist the ICC prioritize its resources and to achieve its core mission of serving as a court of last resort in punishing and deterring atrocity crimes.

Litigation against Trump’s Executive Order Authorizing Sanctions on Officials of the ICC

The Biden Executive Order precedes by days a deadline on April 5 for the Biden administration to respond to a lawsuit by civil society (Open Society Justice Initiative) and law professors challenging the constitutionality of the executive order.  In October, the OSJI and four law professors brought a lawsuit against the U.S. government in U.S. District S.D.N.Y., claiming that the executive violated their rights of free speech and association.  Some of the professors worked in various capacities for the ICC prosecutor and victims of alleged atrocities.

Already, the Biden administration decided not to appeal a preliminary injunction the court issued in the litigation barred the implementation of the Executive Order.

The American Civil Liberties union and several U.S. citizens also brought a lawsuit challenging the Trump Executive Order.  The Biden administration would have had to respond on April 9.

Analysis

The new Executive Order by President Biden and its timing illustrate the utility of the lawsuits.

The new E.O. and the Blinken statement also show an effort by the Biden administration to re-engage in acting against international atrocities and international human rights more generally.

The current issue of the IELR will have more discussion on these developments.

ABA CJS Int’l Crim. Law Comite Speakers Will Discuss Developments in Int’l Law Enforcement, Esp. the Impact of COVID and US Sanctions on the ICC

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International Committee Mid-Year Double Header: (1) The Impact of COVID-19 on International Law Enforcement and (2) American Sanctions Relating to the International Criminal Court

At the CJS Committee on International Criminal Law Mid-Year meeting on Saturday, Feb. 20, 2021 from 3:45-515, there will be two short presentations.

Judith Friedman, a Senior Trial Attorney with the Criminal Division’s Office of International Affairs and winner of Norm Maleng Minister of Justice Award in 2020, will discuss Developments in International Law Enforcement, especially the impact of the Coronavirus”.

Kristin Smith, Esq., director of the Atrocity Crimes Initiative and Staff Attorney with ABA CJS, will discuss the US sanctions on the ICC and summarize the litigation (two cases: the OSJI v. Trump and the just filed Sadat v. Trump), as well as relevant ABA/ ICC Project activities and statements.

Below please find the ZOOM LINK for the International committee meeting: Saturday, February 20th  at 3:45 PM-5:15 PM Eastern Time.

Topic: International Committee Meeting (Please see attached for agenda)

Time: Feb 20, 2021 3:45 PM Eastern Time (US and Canada)

https://americanbar.zoom.us/j/98072937375?pwd=c2dTR2JudDF1OXNkS3FoV1NsUmF0UT09

Meeting ID: 980 7293 7375

Passcode: 422275

Also on the agenda are the following:

  1. Prior meeting – substantive presentation
  2. Committee Newsletter
  3. past issue
  4. new issue – call for contributions of articles and news
  5. Potential issues for programs
  6. international aspects of the Anti-Money Laundering Act of 2020
  7. decision of SDNY of Jan. 4 of US Dist. Court Judge Katherine Polk Failla, enjoining US sanctions against persons associated with the ICC
  8. Annual ABA Convention: potential program on extradition
  9. Other substantive developments and policy issues

The meeting is open to non-Committee members.

 

 

U.S. Treasury Implements Sanctions against ICC Chief Prosecutor and Head of Cooperation Unit

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On September 2, 2020, the United States Department of the Treasury added to the list of Specially Designated Nationals Fatou Bensouda, the Chief Prosecutor of the International Criminal Court (ICC), and Phakiso Mochochoko, the Head of the Jurisdiction, Complementarity and Cooperation Division.

The Treasury notice implements the executive order issued on June 11, 2020, by United States President Donald J. Trump imposing sanctions on “certain persons associated with the International Criminal Court.”

The Executive Order states the U.S. will impose tangible and significant consequences on those responsible for the ICC’s misconduct. They may include the suspension of entry into the U.S. of ICC officials, employees, and agents, as well as their immediate family members.

Even before the issuance of the Executive Order, the U.S. government had already revoked the visa of the ICC’s chief prosecutor, Fatou Bensouda. The Executive Order and sanctions may hinder the ICC’s recruitment of personnel.

The initial implementation selects the chief prosecutor and the individual in charge of enforcement cooperation.  A major weakness of the ICC is its lack of its own police force, so that it cannot actually arrest an individual.

It remains to be determined how broadly the executive branch will apply the sanctions.  This will be a major focus of persons interested in the court and in accountability for war crimes and crimes against humanity.  The imposition of sanctions is a setback to the effort to hold perpetrators of crimes meriting universal jurisdiction accountable.  The sanctions constitute an attack on international and national judicial independence.  It sets a bad example for the rest of the world at the very time when democracy is in jeopardy and the world community is struggling to bring accountability for war crimes and crimes against humanity in longstanding conflicts, such as those in Afghanistan, Syria, Libya, and Yemen.

The sanctions undermine longstanding U.S. foreign policy to emphasize the rule of law and bring peace and stability by holding alleged perpetrators of crimes of universal jurisdiction accountable as well as prioritize international human rights.  Especially when the sanctions are considered in the context of the U.S. still holding persons for twenty years in Guantanamo without trial, the sanctions will also hamper the ability of the U.S. to obtain international enforcement cooperation, especially from its allies.

During its annual meeting last month, the American Bar Association adopted Resolution 114, urging all national governments to “observe, respect, and protect the independence of the International Criminal Court.”  It also “condemns threats by governments to the International Criminal Court and its officers and personnel in the performance of their duties.”  Prior ABA policies and statements on the ICC  and a timeline of the US-ICC relationship show that the ABA has from the start supported the operation of the ICC and U.S. proactive participation in it.   The ABA ICC project’s board members, including former U.S. War Crime Ambassadors and a former Nuremberg prosecutor, have also written opinion pieces the Project’s board members wrote about the sanctions.

The implementation of the Executive Order against the ICC will further alienate U.S. relations with its closest allies, who are making contingency plans for the potential that Donald J. Trump may be re-elected.  On July 17, 2020, European Union High Representative/Vice-President Josep Borrell made a statement on United States sanctions.  He referred specifically to the U.S. unilateral sanctions against the ICC.  Borrell said sanctions against those involved in the work of the ICC, its staff, and their families, as well as persons associated with the ICC, are unacceptable and unprecedented in scope and content.

 

U.S. President Trump Issues Executive Order Imposing Sanctions against International Criminal Court

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On June 11, 2020, United States President Donald J. Trump issued an executive order imposing sanctions on “certain persons associated with the International Criminal Court.”

The Executive Order

The Executive Order cited as authority for the action the Constitution and the laws of the United States, including the International Emergency Economic Powers Act (IEEPA),[1] the National Emergencies Act (NEA),[2] section 212(f) of the Immigration and Nationality Act of 1952,[3]  and section 301 of title 3, United States Code.

President Trump in the E.O. finds that the efforts of the ICC threaten U.S. national security and foreign policy:

“The ICC Prosecutor’s investigation into actions allegedly committed by United States military, intelligence, and other personnel in or relating to Afghanistan, threatens to subject current and former United States Government and allied officials to harassment, abuse, and possible arrest.  These actions on the part of the ICC, in turn, threaten to infringe upon the sovereignty of the United States and imped the critical national security and foreign policy work of the United States Government and allied officials, and thereby threaten the national security and foreign policy of the United States.”

The Executive Order also refers to the enactment in 2002 of the American Service-Members’ Protection Act,[4] which “rejected the ICC’s overbroad, non-consensual assertions of jurisdiction.”[5]

According to the Executive Order, the U.S. will impose tangible and significant consequents on those responsible for the ICC’s misconduct.  They may include the suspension of entry into the U.S> of ICC officials, employees, and agents, as well as their immediate family members.

Justifications of the Executive Order and Imposition of Sanctions

National Security Advisor Robert O’Brien made a statement before press alongside Secretary of State Mike Pompeo, Secretary of Defense Mark Esper, and Attorney General Bill Barr. O’Brien said “The ICC’s effort to target American servicemen and women and other public servants are unfounded, illegitimate, and make a mockery of justice”.[6]

Barr stated “(w)e are concerned that foreign powers, like Russia, are also manipulating the ICC in pursuit of their own agenda.”  The Justice Department received “substantial, credible information that raises serious concerns about a long history of financial corruption and malfeasance at the highest levels of the office of the prosecutor.”[7]

The ICC investigation that triggered the Executive order will focus on possible crimes committed by the Taliban and other groups between 2003 and 2014, including alleged mass killings of civilians, as well as the alleged torture of prisoners by Afghan authorities and, to a lesser extent, by U.S. forces and the CIA.[8]

The ICC only investigates when national governments have not already investigated atrocities and crimes against humanity.

Human rights groups criticized the order as overly broad and vague and could subject human rights researchers at risk in countries allied with the U.S., such as the Philippines.[9]

Analysis

Although the Executive Order states that the ICC investigation into Afghanistan atrocities threatens to subject U.S. government and allied officials to potential arrest, U.S. allied officials are members of and support the ICC.

While the press conference talked of a “politically motivated court,” President Trump has intervened in several cases involving war-crimes accusations even though military justice experts and senior defense officials have opposed his intervention.[10]

The Trump Administration’s charge of political interference and corruption in the ICC will ring hollow. Three emoluments suits have been brought against the President.  The President has dismissed five inspector generals, including ones investigating improprieties at the defense and state departments.[11] Mr. Barr has been embroiled in a series of political interference allegations, including his whitewash of the Robert Mueller report,  his overriding the sentencing memorandum of DOJ attorneys for former Trump campaign adviser Roger Stone,[12] his effort to dismiss the plea of former Trump national security advisor Michael Flynn,[13]  the impeachment of Trump for his effort to have the Ukrainian head of state investigate the presumptive Democratic presidential candidate Joe Biden and his son, and his criticism and firing of his first Attorney General Jeff Sessions for recusing himself in the special counsel’s investigation.[14]

Already the U.S. has revoked the visa of the ICC’s chief prosecutor, Fatou Bensouda.[15]  The Executive Order and sanctions may hinder the ICC’s recruitment of personnel.

The imposition of sanctions is a setback to the effort to hold perpetrators of war crimes accountable and to the ability of the U.S. to obtain international enforcement cooperation, especially from its allies.

The current issue of the IELR will have a more comprehensive discussion of the sanctions.

 

[1]    50 U.S.C. § 1701 et seq.

[2]    50 U.S.C. § 1601 et seq.

[3]    8 U.S.C. §1182(f).

[4]    22 U.S.C. §7241 et seq.

[5]    For a discussion of the decision by the ICC Appeals Chamber authorizing the Afghanistan investigation, see Michael Plachta, ICC Appeals Chamber Authorizes the Prosecutor’s Request to Investigate War Crimes in Afghanistan, 36 Int’l Enforcement L. Rep. 104 (Mar. 2020).

[6]    Robbie Gramer and Jack Detsch, Trump Order Treats International Prosecutors Like War Criminals, Foreign Policy, June 11, 2020.

[7]    Id.

[8]    Karen DeYoung and Carol Morello, Trump authorizes sanctions against ‘corrupt’ International Criminal Court, Wash. Post, June 12, 2020.

[9]   Id.

[10]   Id.  See also Mikhaila Fogel, When Presidents Intervene on Behalf of War Criminals, Lawfareblog, May 27, 2019 https://www.lawfareblog.com/when-presidents-intervene-behalf-war-criminals (discussing President Trump’s preparation of pardons  for, among others, Special Operations Chief Edward Gallagher, a Navy SEAL accused of shooting unarmed civilians and stabbing an enemy prisoner to death; Maj. Mathew Golsteyn, who was accused of killing an unarmed Afghan man who had been connected to the Taliban; and a group of Marine Corps snipers charged in connection with urinating on the bodies of dead Taliban fighters).

 

[11]  Melissa Quinn, The internal watchdogs Trump has fired or replaced, May 19, 2020 https://www.cbsnews.com/news/trump-inspectors-general-internal-watchdogs-fired-list.

[12]    Andrew Prokop,   The fiasco at Bill Barr’s Justice Department, explained, Vox, Feb 13, 2020.

[13]     Roger Parloff ,The Shoddy History Behind a Key Precedent in the Flynn Case, Lawfareblog,  June 11, 2020 https://www.lawfareblog.com/shoddy-history-behind-key-precedent-flynn-case; Josh Gerstein and Kyle Cheney, Everything about this is irregular’: Ex-judge tapped to review Flynn case blasts Trump DOJ, Politico, June 10, 2020 https://www.politico.com/news/2020/06/10/gleeson-flynn-sullivan-barr-justice-department-311018.

[14]    Trump fires Attorney General Jeff Sessions, BBC, Nov. 18, 2018.

[15]    Naha Toosi and Natasha Bertrand, Trump authorizes sanctions against the International Criminal Court, Politico, June 11, 2020 https://www.politico.com/news/2020/06/11/white-house-international-criminal-court-sanctions-313070

 

UK Accountability for War Crimes in Doubt

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By Professor Alexandra Fowler*

On 18 March the UK Minister for Defence introduced into the UK Parliament his promised package of new legislation designed to ‘protect veterans’. Entitled the Overseas Operations (Service Personnel and Veterans) Bill (https://publications.parliament.uk/pa/bills/cbill/58-01/0117/cbill_2019-20210117_en_2.htm#pt1-pb1-l1g1), the proposed law contains important restrictions on the ability to bring alleged UK war criminals – past and future – before the courts.

In particular, ss1-3 of the Bill introduce a “presumption” that once five (5) years have elapsed from the date of an alleged offence during overseas operations, it would be “exceptional” for prosecutors to decide that a serving or ex-soldier should be prosecuted. Indeed, any decision about prosecution would need to take into account matters which reduce culpability, such as the operating environment’s “exceptional demands and stresses” (such as being in a continuous threat environment, or serving alongside others who were killed or injured in action) which may reduce the ability to make sound judgments or exercise self-control, regardless of the soldier’s rank, length of service or personal resilience. Further, there is presumed to be a public interest in finality where no ‘new’ evidence is presented. Section 5 of the Bill requires that any criminal prosecution would require the consent of the UK Attorney General before it could proceed.

The Iraq Historic Investigations Team (IHAT) was responsible for investigating alleged violations of the rules of war in Iraq, and Operation Northmoor investigated alleged violations in Afghanistan. No Operation Northmoor cases were ever passed to the Service Prosecuting Authority (SPA) for prosecution, and the SPA declined to proceed with prosecution for the few IHAT cases put before it. The UK government closed IHAT down in 2017, leaving a caseload of around 20 cases to be investigated by a successor body, Service Police Legacy Investigations (SPLI). None of these have proceeded to court yet either, leading to allegations that the UK government is uninterested in pursuing any war crimes cases (https://www.theguardian.com/law/2019/nov/17/british-government-army-accused-covering-up-war-crimes-afghanistan-iraq).

The time limit in the Bill appears to eliminate any prospect of prosecutions from this legacy caseload. Additionally, given that any substantial UK troop commitment overseas is likely to lead to a large number of incidents requiring years to investigate, the presumption against prosecution after five years is likely to stymie prospects for holding future UK war criminals to account.

Accountability in the International Criminal Court (ICC)

There is a small possibility that an international process will hold UK commanders responsible for historic war crimes even if a domestic process cannot. The UK ratified the Rome Statute on 4 October 2001, making British nationals eligible for possible prosecution. In 2005 the Office of the Prosecutor (OTP) opened a preliminary investigation into UK war crimes in Iraq, but this was closed in early 2006 concluding inter alia that while there was “reasonable evidence” to believe there had been around 20 instances of wilful killing and inhuman treatment under Article 8 of the Rome Statute, this number was not of sufficient gravity and thus did not satisfy the Admissibility criteria of the Court (https://www.icc-cpi.int/NR/rdonlyres/04D143C8-19FB-466C-AB77-4CDB2FDEBEF7/143682/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf).

Upon new evidence being presented in 2014, the OTP re-opened the preliminary investigation, concluding in 2017 that there was a “reasonable basis” to believe that members of UK forces committed a range of war crimes under Article 8 (para 194, https://www.icc-cpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE-Iraq_ENG.pdf). As to whether such evidence could support a prosecution, an Admissibility Assessment by the OTP dated December 2019 (https://www.icc-cpi.int/itemsDocuments/191205-rep-otp-PE.pdf) noted that while the UK has not been inactive in investigations of war crimes for domestic prosecution, recent investigative reporting by UK media outlets had alleged a deliberate effort to shield higher-level perpetrators from scrutiny, along with the destruction of potentially incriminating evidence (para 170). Further, legislation to limit prosecutions (such as the Bill just introduced) would be assessed during 2020 to see whether it evidences the standards of inactivity and genuineness set out in Article 17 of the Rome Statute (paras 173-175).

The new Bill is therefore on the radar of the ICC, and its bar on prosecutions over five years old except in “exceptional circumstances” certainly makes it more difficult now for the UK to argue that outstanding war crimes investigations will be seriously pursued. Of course whether the UK would cooperate if a formal investigation was launched and/or arrest warrants issued is an open question; in April 2019 the ICC’s Pre-Trial Chamber II rejected the OTP’s request to investigate war crimes in Afghanistan in part because the lack of cooperation received from the UK government and others meant the chances of successful investigation and prosecution were slim (https://www.icc-cpi.int/Pages/item.aspx?name=pr1448).

 

* Dr Alexandra Fowler is a specialist in public international law at the University of Westminster, London. She holds a Doctor of Juridical Studies degree from the University of Sydney, and has taught international law and constitutional law at a number of major Australian universities. Her research interests include victim compensation in international humanitarian law, international human rights law, international criminal law and transitional justice.

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