War crimes: proponents of universal jurisdiction target multinational corporations
More countries than ever before are using domestic laws to prosecute perpetrators of atrocity crimes committed outside of their borders under the principle of universal jurisdiction – including as a result of the war in Ukraine. Increasingly, corporations are being brought to trial under this principle, presenting a path towards accountability for crimes committed overseas by large international players who continue to act with relative impunity.
A precedent for corporate accountability was created at the end of the Second World War, when a number of large companies in industries such as steel, weapons and chemicals were charged with complicity in atrocity crimes for supporting the Nazi war effort. Their cases were heard at the Nuremberg trials in 1945–46. Another notable case took place in 2005, when Dutch chemical tradesman Frans van Anraat was convicted for complicity in war crimes for selling a chemical essential for the creation of mustard gas to former Iraqi President Saddam Hussein. The gas was used against the Kurds and killed thousands.
In its latest annual universal jurisdiction review, covering 2022, the non-governmental organisation TRIAL International highlights that 30 corporate actors are currently suspected in cases of atrocity crimes.
John Balouziyeh, North American Regional Forum Liaison Officer for the IBA War Crimes Committee and a partner at The Law Firm of Wael A Alissa in Riyadh, says the use of the principle will dissuade companies from investing in countries that have poor human rights records or are experiencing armed conflict. ‘We are already seeing this happen, with some companies divesting from countries being accused by international organisations of committing serious violations of international human rights and humanitarian law’, says Balouziyeh.
In Sweden for example, an ongoing case concerns two Lundin Energy executives, who were indicted for allegedly aiding and abetting war crimes committed in Sudan between 1999 and 2003. Prosecutors allege the company had asked the Sudanese government to secure a potential oilfield, knowing this would mean seizing the area by force. As such, this made the executives complicit in war crimes that were then carried out by the Sudanese army and allied militia against civilians. The executives deny the allegations and Lundin Energy has stated that ‘there are no grounds for the allegations of wrongdoing by any of [our] representatives.'
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Some companies divesting from countries [are] being accused [of] committing serious violations of international human rights and humanitarian law
John Balouziyeh
North American Regional Forum Liaison Officer, IBA War Crimes Committee
An important development in the successful prosecution of such crimes has been the establishment of specialised prosecutors and units in 26 countries so far, according to the Clooney Foundation for Justice. ‘The existence of specialised war crimes units with the expertise to investigate and prosecute international crimes contributes to the viability of international criminal cases in countries such as France, Germany, Sweden and others that have in recent years actively prosecuted crimes on the basis of universal jurisdiction’, says Balouziyeh.
More countries have begun to accept cases under universal jurisdiction – including a number of eastern European countries, following Russia’s invasion of Ukraine – which is creating the potential for overlap, duplication and the re-traumatisation of victims, according to TRIAL International. Pavani Nagaraja Bhat, Investigations Associate at human rights organisation Fortify Rights, says that when it comes to universal jurisdiction cases, ‘there is a real risk of overlap and that’s why it’s important that all of us coordinate with each other to ensure that we’re not speaking to the same people over and over again and having them testify the same thing in other courts. The risk of re-traumatisation is real.’
To coordinate – including between the International Criminal Court and the US – and facilitate the cases filed in various jurisdictions concerning Ukraine, a joint investigation team has been set up by Eurojust, the EU Agency for Criminal Justice Cooperation.
At the beginning of 2023, US President Joe Biden signed into law the Justice for Victims of War Crimes Act, opening the door in the US to investigations of war crimes committed overseas, even in cases where neither the accused nor the victims are US citizens. Whether this marks a change in response to cases brought against the US or its citizens remains to be seen.
Belgium and Spain have previously amended their universal jurisdiction legislation following international pressure, including from the US. In 2003, the US threatened to move NATO headquarters out of Brussels after victims turned to Belgian courts for accountability for crimes allegedly committed during the Iraq War. Now, only cases involving Belgian residents or long-term residents as victims or suspects can be brought before its courts. Universal jurisdiction proceedings remain susceptible to political interference, says Angela Mudukuti, an international criminal law and human rights lawyer. ‘The damage has been done in those jurisdictions [Belgium and Spain]. It sets a dangerous precedent. Reconsidering bringing a case is different from losing one’, says Mudukuti.
There are other challenges when it comes to seeking justice in countries far away from where crimes are perpetrated. ‘The obstacles are mainly linked to the geographical and cultural distance between the prosecuting state and the victims and survivors. Witnesses and survivors’ security is also an issue’, says Giulia Soldan, Program Manager, International Investigations and Litigation, at TRIAL International.
The International Criminal Tribunal for Rwanda, held in Tanzania, and the trial of the former President of Chad, Hissène Habré, which took place in Senegal, had their challenges but could serve as examples of how proceedings conducted in a somewhat similar cultural context and slightly closer to home benefit victims, says Mudukuti.
The less-than-ideal pursuit of justice far away from home should, however, not deter victims from seeking accountability altogether, according to Priya Pillai, Head of the Asia Justice Coalition secretariat. ‘There is a need for the exercise of universal jurisdiction “closer to home” and a need to explore in greater depth the potential options in Asia and other regions. But we must also not miss opportunities for justice and accountability only on the basis that these are located far from the region’, she says.
Image credit: Rico Löb/AdobeStock.com
IBAHRI activities at the 53rd session of the UNHRC
The International Bar Association’s Human Rights Institute (IBAHRI) participated in the 53rd session of the United Nations Human Rights Council (UNHRC) from 19 June–14 July. The UNHRC is an intergovernmental body within the United Nations system and is comprised of 47 states who are responsible for the promotion and protection of global human rights. It meets at the United Nations Office at Geneva.
The IBAHRI took part in numerous key discussions, side events and activities during the session on important topics related to human rights, including the independence of judges and lawyers, summary executions and women’s and girls’ rights.
The IBAHRI issued a joint statement with Lawyers for Lawyers, LRWC and The Law Society of England and Wales on the situation in China, and joined The Law Society of England and Wales in a statement addressing concerning issues for lawyers in Iran. The IBAHRI also released a joint statement with The Law Council of Australia that condemned the Taliban’s dismantling of Afghanistan’s independent legal system, contempt for the independence of judges and lawyers, and exclusion of women from legal education, legal practice and the judiciary.
The IBAHRI participated in the annual discussion on women’s rights and delivered an oral statement about the dire situation for girls and women globally, with a particular focus on Afghanistan and Iran, where women and girls are subjected to severe restrictions that ultimately prevent their existence outside their homes.
The IBAHRI joined the Law Council of Australia in an oral statement that voiced concerns regarding the incarceration rate of First Nations adults and urged Australia to fully implement the Optional Protocol to the Convention against Torture by ensuring an effective, adequately resourced preventative mechanism is in place across all places of detention in Australia.
Read the highlights and key takeaways here.
Podcast: Climate justice in practice
The effects of the climate crisis are set to have a disproportionate impact on developing countries. Significant attention is now being paid to what should be done, and by whom, to mitigate the consequences and uphold human rights. So, what does this ‘climate justice' mean in practice?
Discussing the issues are:
- Yamide Dagnet, Director, Climate Justice, at Open Society Foundations, a non-profit that works with organisations and individuals who seek to address profound racial, economic and political inequalities.
- Jacynta Fa’amau, Pacific Regional Campaign Specialist at 350.org, an international movement working to end the age of fossil fuels and build a world of community-led renewable energy for all.
- Meredith James, Senior Counsel at Canadian law firm Woodward & Company and a member of the organisation Lawyers for Climate Justice.
Listen to the podcast here.
IBA and Ukrainian Bar Association join forces on war crime trials monitoring
The International Bar Association (IBA) and the Ukrainian Bar Association (UBA) have joined forces to monitor war crime trials in courts in Kyiv and Kharkiv Oblasts until the end of September 2023. The monitoring will be delivered as part of the US Agency for International Development Human Rights in Action Program, which is being implemented by the Ukrainian Helsinki Human Rights Union.
The UBA will examine how the right to a fair trial is respected in these cases when measured against international standards, prepare a report outlining judicial best practice and offer recommendations to address any shortfalls identified. A team of IBA experts has assisted the UBA through the preparation of the trial monitoring methodology, the implementation of the monitoring itself and the production of the report.
‘It is imperative for Ukraine’s reputation that justice is served for victims and the accused alike. Thus, the monitoring of war crime trials in Ukraine is an essential step towards the goals of achieving justice and accountability for the Ukrainian population, while simultaneously ensuring fair trial processes are being followed for the accused’, says IBA Executive Director Mark Ellis. ‘The UBA–IBA trial monitoring collaboration illustrates Ukraine’s ongoing commitment to improve trial practices, prevent potential future procedural complications, and increase process transparency.’
Read the full press release here.
IBAHRI marks International Fair Trial Day 2023 and acknowledges Ebru Timtik Award winners
The International Bar Association’s Human Rights Institute (IBAHRI) marked International Fair Trial Day (IFTD) on 14 June 2023 with participation at a conference in Mexico City. The winners of the 2023 Ebru Timtik Award, honouring human rights defenders, were announced at the IFTD conference.
This year’s winners of the Ebru Timtik Award are two prominent Mexican lawyers and human rights defenders, Alicia de los Ríos Merino and Ana Yeli Pérez Garrido. The award, named after a Turkish lawyer who died in August 2020 following a 238-day hunger strike in protest against fair trial rights violations, is presented annually to those who demonstrate outstanding commitment and sacrifice in defence of fair trial rights.
Alicia de los Ríos Merino was selected by the judging panel for her dedication to achieving justice for the families of disappeared persons in Mexico. She was a member of Eureka, the first collective in Mexico for relatives of disappeared persons, and since 2002 has assisted in seven cases of serious human rights violations before the Attorney General’s Office of the Republic. Currently, Ms de los Ríos Merino works as lecturer and researcher in the Faculty of Philosophy and Letters at the Autonomous University of Chihuahua.
Ana Yeli Pérez Garrido was chosen by the judging panel for her devotion to the protection and promotion of women’s and girls’ rights in Mexico, a country where gender-based violence results in the violent deaths of 11 women every day. Over the course of her career, Ms Pérez Garrido has fought for the modification of regulatory frameworks and the creation of public policies for the prevention and punishment of violence against women and girls in Mexico. She is the founder and director of Justicia Pro Persona, an organisation that promotes gender equality and social justice for victims of human rights violations.
Read the full press release here.
IBAHRI expresses concern after Hong Kong issues arrest warrants for overseas pro-democracy figures
In mid-July, the International Bar Association’s Human Rights Institute (IBAHRI) expressed concern over the escalation of transnational repression by China, following the issuance of arrest warrants against eight overseas Hong Kong Special Administrative Region pro-democracy figures.
The accused are former lawmakers Dennis Kwok and Ted Hui, lawyer and scholar Kevin Yam, unionist Mung Siu-tat, online commentator Yuan Gong-yi and pro-democracy activists Nathan Law, Anna Kwok and Finn Lau. All are accused of violating the controversial Hong Kong National Security Law (NSL) while in exile. Further, the Hong Kong police has placed a bounty on their heads, with a reward of HK$1m each for information leading to their arrest.
The charges are grounded on Articles 21, 23 and 29 of the NSL, namely ‘incitement to secession’, ‘incitement to subversion’ and ‘collusion with a foreign country or with external elements to endanger national security’. The NSL was passed by China’s top legislature in 2020 and its extraterritorial reach, provided for by Articles 37 and 38, represents the long arm of China’s suppression of dissent.
‘Offering a cross-border bounty on the head of Hong Kongers overseas poses a serious threat to their safety. It is an intolerable affront to the rule of law and a “Wild West” practice’, says Anne Ramberg, IBAHRI Co-Chair.
Read the full press release here.
IBAHRI sends letter of concern to Saudi Arabia over former judges’ arrest
In early July, the International Bar Association’s Human Rights Institute (IBAHRI) issued a letter to His Majesty King Salman bin Abdulaziz Al Saud, the Saudi Arabian monarch, expressing concern over reports that ten former judges of Saudi Arabia have been charged with ‘high treason’. The charge carries a potential death sentence.
The IBAHRI says the arrests contribute to the ongoing dismantling of the independence of the judiciary and legal profession in Saudi Arabia through the intimidation, hindering, harassment and improper interference of judges, lawyers and jurists. The letter calls on Saudi Arabian authorities to ‘cease the use of incommunicado detention and to immediately and unconditionally release all those who have been arbitrarily arrested and detained; to ensure the right to a fair trial and due process; to review the scope of the death penalty without delay to ensure that its imposition and implementation are strictly limited to the confines of international law [...] and to introduce an immediate moratorium on its use with a view to abolition’.
Read the report.
Myanmar: Generals who orchestrated Rohingya atrocities cling to power
When Cyclone Mocha hit Myanmar’s western Rakhine state in May, tens of thousands of Rohingya facing tight movement restrictions under the country’s junta had no place to run.
Official numbers are hard to come by, but deaths and large-scale destruction have been reported. According to the military junta, over 100 Rohingya lost their lives. Aid access has been blocked by the military since, leaving displaced people exposed to the elements and without access to clean water, food or healthcare as the monsoon season is about to start.
‘The junta’s apartheid conditions in Rakhine State effectively trapped Rohingya in the path of the cyclone.’ says Shayna Bauchner, Asia researcher at Human Rights Watch. ‘Rohingya told us that some evacuation announcements were made, but they were left on their own to find shelter and transportation, with no idea how devastating the storm would be.'
Brad Hazlett is president of the non-governmental organization Partners Relief and Development. ‘These people didn't have much margin to begin with and when the cyclone hit, they lost everything they had. In some areas, up to 90% of the structures are totally gone, so now they have to rebuild and aid is restricted. They’re back to where they were after the violence in 2012,’ he says.
The camps were created following sectarian violence that displaced thousands of Rohingya in 2012. An estimated 140.000 people continue to live there and are confined to the area. While movement and aid restrictions had been in place since 2012, measures were intensified following the coup on 1 February 2021, when the generals deposed of the quasi-civilian government under Aug San Suu Kyi.
These people didn't have much margin to begin with and when the cyclone hit, they lost everything they had. They’re back to where they were after the violence in 2012
Brad Hazlett
President, Partners Relief and Development
Aid agencies had been in conversations with Myanmar's government to gain access to the areas affected by the cyclone in Rakhine State but, on 12 June, all humanitarian access was suspended. ‘This denial of access unnecessarily prolongs the suffering of those without food to eat or a roof over their head. It increases the risk of food insecurity and water-borne disease,’ UN Resident and Humanitarian Coordinator a.i (ad interim) Ramanathan Balakrishnan said.
A UN report has identified Myanmar as one of 18 ‘hunger hotspots’ in 2023, classifying the food situation in the country as one of ‘very high concern’. It states that ‘many townships and displacement sites in northern Rakhine have lost substantial food stocks and livelihoods’ during the storm.
The up to 250 km/h winds also caused devastation in other areas in the Myanmar’s North-west, where communities had already been affected by increased conflict since the coup. Plans for distribution and transportation to parts of that area – Chin State – also remain pending, according to the United Nations Office for the Coordination of Humanitarian Affairs (UN OCHA).
An investigation into the generals‘ alleged crimes against the Rohingya is in progress at the International Criminal Court and The Gambia filed a case at the International Court of Justice (ICJ) alleging that Myanmar’s persecution of the Rohingya violates the Genocide Convention. Aung San Suu Kyi – at that time as the country’s de facto leader in the position of state counsellor – travelled to the Hague to defend the country against these allegations.
The deprivation of aid could also be a crime under international law, says Steven Kay KC, a member of the IBA War Crimes Committee Advisory Board. ‘Such conduct could come within other inhumane acts Article 7.1.a as defined by the Rome statute, if all the elements of the offence were proven,’ says Kay.
Prior to the cyclone, early in 2023, Myanmar’s military had announced plans to hold an election in an attempt to legitimise its position in the country. The generals since introduced a new law which required political parties to reregister by March or be disbanded. A large number of parties, including Aung San Suu Kyi’s National League for Democracy (NLD), refused. ‘Considering it won 79 per cent and 82 per cent of the elected seats in the last two general elections, the NLD’s participation ‘is a fundamental requirement for credible polls in Myanmar,’ according to the International Crisis Group, a non-governmental organisation.
The Special Rapporteur on the situation of human rights in Myanmar, Tom Andrews, has said that the military junta ‘can make no claim to democratic legitimacy’. Instead, he calls on countries to recognise the National Unity Government (NUG) – the shadow government formed following the coup - as the legitimate representatives of the people of Myanmar.
Under the military, there is little hope for the Rohingya in the camps that they’ll ever be able to return to their homes. Under the guise of closing the camps, the military is building permanent structures – replacing the temporary ones that were supposed to be there for two years only – near the current sites to house them, according to Human Rights Watch.
Also, the hundreds of thousands of Rohingya who fled to Bangladesh following the military’s brutal and deadly campaign in 2017 are at risk of being returned to Myanmar. The Bangladesh government aims to return over 1100 refugees initially, who would be housed in newly built villages that they would not be allowed to leave. While often described as voluntary, threats of arrests for non-cooperation have been reported.
‘The freedom of the Rohingya is very much bound up in the freedom of Myanmar. Junta officials are trying to carry out their problematic ‘camp closure’ process in the Rakhine camps, entrenching segregation and denying Rohingya the right to return home. All of this only makes the prospect of safe returns for Rohingya refugees in Bangladesh even more distant,’ says Bauchner.
Image credit: Waste collected in and around Rohingya Refugee camps in Teknaf, Bangladesh. Moinak /AdobeStock.com