Redress - Ending Torture, Seeking Justice for Survivors
Universal Jurisdiction News
May 2013

Dear friends and colleagues,

Please find below a summary of recent cases, news and publications related to universal jurisdiction worldwide from the last month. For more information on universal jurisdiction, please subscribe to our Universal Jurisdiction Listserv by sending an email to:

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Warm wishes,

Dadimos Haile, Interim Director 


 

Kiobel: United States Supreme Court limits jurisdiction for civil suits alleging atrocities committed abroad

On 17 April 2013 the United States Supreme Court delivered a ruling in the case of Kiobel v Royal Dutch Petroleum, significantly limiting the scope and applicability of the Alien Tort Statute (ATS).

The Kiobel case concerned the applicability of the ATS to suits brought against corporations rather than individual persons, although the Court's ruling is of wider application. The case was brought by a group of Nigerian activists now living in the US, who alleged that in the 1990s Royal Dutch Petroleum was complicit in the the torture and murder of protesters at the company's Shell Oil operations in the Ogoni region.

The Supreme Court unanimously ruled that the suit was inadmissible. However, although all nine Justices agreed on the outcome they disagreed over its reasoning, and both the majority and concurrent opinions of the Court leave open a number of significant questions regarding the reach and interpretation of the ATS. 

The majority applied the "presumption against extraterritoriality," pursuant to which US laws are assumed not to apply to conduct abroad, and were agreed that even where claims of atrocities “touch and concern the territory of the United States, they must do so with sufficient force” to overcome the presumption. They added that "mere corporate presence" of defendants in the US does not suffice to bring suits within the scope of the ATS. 

Further clarification of the remaining scope of the Statute will need to be addressed in future cases. Civil society groups - including the Center for Constitutional Rights - expressed their disappointment with the judgment and expressed their intention to continue litigation under the ATS. 

Read the Opinion of the Supreme Court in Kiobel v Royal Dutch Petroleum

Some highlights from the wealth of commentary already available online include:

  • Collected commentary by United States Supreme Court blog, SCOTUSblog
  • An ongoing Kiobel Insta-Symposium on Opinio Juris
  • ASIL Insights: "Supreme Court Holds That Alien Tort Statute Does Not Apply to Conduct in Foreign Countries"
  • UK Human Rights Blog, "Kiobel v Shell: US Supreme Court on corporate accountability for foreign human rights abuses"
  • Diane Marie Amman, "Alien Tort Statute lives to die another day"
  • Michael C. Dorf, "Some Good News for Human Rights Lawyers in the Supreme Court’s Interpretation of the Alien Tort Statute"
  • Julian Ku & John Yoo, "The Supreme Court Unanimously Rejects Universal Jurisdiction"
  • Eric Posner, "The United States Can't be the World's Courthouse"

Photo of United States Supreme Court courtesy of wallyg


 

Impact of Kiobel ruling on further human rights claims pending before US courts is unknown

The South African organisation Khulumani issued a statement on 24 April posing questions regarding the impact of the Kiobel decision on other claims by victims of international crimes which are currently pending before US courts. For example, claims filed by South African litigants have been pending since January 2010,  awaiting the Supreme Court’s decision in Kiobel. 

The applicants are seeking compensation from multinational companies which they claim had aided and abetted the perpetration of gross human rights violations during apartheid. 

Similarly, it was reported shortly before the publication of the Kiobel opinion that a California District Court judge ruled that the federal court system had jurisdiction to hold Turkish banks accountable for seizing land from Armenians during the Armenian Genocide. 

G8 Declaration reiterates that sexual violence is a war crime and grave breach of the Geneva Conventions

On 11 April 2013 the G8 group of states issued a Declaration on Preventing Sexual Violence in Conflict. Reiterating that rape and other serious sexual violence amount to war crimes and grave breaches of the Geneva Conventions, the Declaration was a reminder that all States Parties' to the Geneva Conventions have an obligation to search for and prosecute (or extradite) any individual alleged to have committed or ordered rape and other serious sexual violence, regardless of the nationality of the suspect or victim or where the crime occurred. 

The Declaration therefore constitutes a strong expression of political will by the G8 states to investigate and prosecute conflict-related sexual violence wherever it occurs, using universal jurisdiction if necessary.

REDRESS, Amnesty International UK and TRIAL (Track Impunity Always) issued a statement welcoming the Declaration, and calling on states to enact comprehensive laws that will enable them to fulfil these obligations and to ensure that the Declaration results in more trials of alleged perpetrators. 

Read the Declaration on Preventing Sexual Violence in Conflict

Read joint statement by REDRESS, Amnesty International UK and TRIAL (Track Impunity Always)

Read analysis of the Declaration by Valerie Oosterveld

Photo courtesy of Foreign and Commonwealth Office

19th anniversary of the beginning of the Rwandan genocide

Commemorations of the 19th anniversary of the beginning of the Rwandan genocide on 7 April 1994 were accompanied by calls to all countries harbouring suspected genocide perpetrators to fulfil their duties under international law to extradite or prosecute suspects.

For example, a statement by the Rwandan Ministry of Justice criticised African states harbouring suspects for failing to respond to arrest warrants issued by Rwandan prosecutors.  

The theme of this year's commemoration was kwigira, meaning 'self-reliance'. However, the commemoration was also accompanied by reports of victims and survivors' lack of access to reparation as well as to adequate shelter and healthcare.

Opinion Pieces to mark the occasion included the publication by Pambazuka News of a piece by Tara O'Leary of REDRESS and David Russell of Survivors' Fund (SURF), evaluating the mixed successes of efforts to provide justice for victims of the Rwandan genocide, as well as the general failure to provide access to reparation for survivors. 

François Janne d'Othée evaluates the range of prosecutions of Rwandans in recent months, and comments on the prospects for a fifth trial of Rwandan suspects in Belgium, a potential "mega-trial" of seven suspects (in French).

Photo from Rwandan genocide commemoration at United Nations Headquarters in New York on 15 April 2013, courtesy of Africa Renewal

Palestinian Centre for Human Rights convenes conference on justice and reparation for Palestinian victims of international crimes

On 23 and 24 April 2013, REDRESS and the International Federation for Human Rights (FIDH) were among the organisations who participated in an international legal conference convened by the Palestinian Centre for Human Rights (PCHR) on the topic of “Pursuing justice and redress for Palestinian victims: developing strategies for advocacy and litigation”. 

Attended by representatives of 13 Palestinian, Israeli and international organisations, as well as a number of international lawyers and legal experts, the conference addressed recent developments within the Israeli legal system which are effectively blocking nearly all avenues for access to both criminal and civil justice for Palestinian victims of international crimes. 

In particular, participants discussed the extent to which one of the key strategies for Palestinian victims must be to seek justice through the principles of universal jurisdiction and by accessing the International Criminal Court. 

Read the Malaga Statement by Palestinian, Israeli and international organisations regarding civil compensation in Israeli courts

Photo courtesy of PCHR

Case Updates

Argentina: Operation Condor trial opens in Buenos Aires 

On 5 March 2013, proceedings began in a landmark case of senior political, military and intelligence figures suspected of involvement in Operation Condor, a crossborder cooperation plan among South American military juntas in the 1970s. The charges against the defendants relate to alleged kidnapping, torture and extra-judicial execution, whcih formed part of a range of measures carried out against mostly left-wing activists with the express aim of crushing dissent. 

The 25 suspects on trial include two former Argentinian dictators, Jorge Videla and Reynaldo Bignone. Although the trial is taking place in Argentina, it involves victims from and alleged crimes committed in Uruguay, Paraguay, Chile, Bolivia, and Peru. One of the suspects is Uruguayan former military officer Manuel Cordero, while earlier in the proceedings arrest warrants were issued against other Uruguayan and Paraguyan suspets. The trial is ongoing; proceedings are expected to last for approximately two years. will rule on the cases of over 170 victims and will call on nearly 500 witnesses to testify.


 

France: Genocide suspect Tito Barahira re-arrested

On 3 April 2013 it was reported that Rwandan genocide suspect Tito Barahira (who has also used the name Barahirwa) had been re-arrested by the French authorities in Toulouse. On 4 April he was charged with crimes against humanity and genocide. Barahira was originally arrested in February 2011: he had been placed on an Interpol list of suspects after an international warrant for his arrest was issued by Rwandan prosecutors. He was released on bail in April 2011, and his case was transferred to the High Court of Paris which has the power to investigate and try him. It remains unclear whether he may be subject to an application for extradition. 

A former Bourgmestre (Mayor) of Kabarondo Commune, and Director of Electrogaz in the former Kibungo Prefecture, Barahira is suspected of organising and participating in the killing of thousands of Tutsi, including during an attack on 13 April 1994 against Tutsi sheltering in Kabarondo Church. 

Read TRIAL profile of Tito Barahira


 

France: Update on Pascal Simbikangwa indictment

On 2 April 2013, the case against Pascal Simbikangwa was sent to trial by the Paris Cour d’assises following the decision by investigating magistrates in March to uphold the indictment against him. The case will now proceed to trial, and is expected to begin in 2014.

Listen to Alain Gauthier, President of Collectif des parties civiles pour le Rwanda (CPCR) discussing the case (in French)

Read International Criminal Law Bureau post on recent developments in France 


 

The Netherlands: Immigration appeal court withdraws residence permit of suspected Rwandan genocide perpetrator

On 11 April 2013 the District Court of the Hague dismissed an appeal brought by a Rwandan asylum seeker, seeking to overturn the decision of the Dutch immigration services to suspend his residence permit due to suspicions of his involvement in the Rwandan genocide. In upholding the decision, the Court has paved the way for the potential initiation of extradition proceedings against the man, who remains anonymous in the judgment. The suspicions against him relate to killings at the Ecole Technique Officielle (ETO), a school in Kicukiro, in April 1994.


 

Argentina: Investigation re-opened into allegations against former Chinese officials Luo Gan and Jian Zemin 

On 17 April 2013, the Federal Chamber of Criminal Appeals in Cassation (Cámara Federal de Casación Penal) in Buenos Aires overruled a previous pronouncement by the Federal Appeals Court, which had ruled that an investigation into allegations against former Chinese officials Jian Zemin and Luo Gan should be closed due to the ne bis in idem principle. It is understood that the initial decision had been based upon a similar investigation into both officials which is currently pending before the Spanish courts. The effect of the recent decision is to reopen the investigation by a first instance investigating judge, insofar as there should be a new determination of whether the ne bis in idem principle has been violated.

The allegations against Jian Zemin, the former President of China, and Luo Gan, former security chief in the Politburo Standing Committee of the Chinese Communist Party, relate to reports of torture of Falun Gong members in China by Chinese officials. Arrest warrants were issued by an investigating judge against Luo Gan and Jian Zemin in December 2009, but were later revoked when the investigation was closed. The reopening of the investigation marks the resumption of Argentina's first universal jurisdiction case. 

Read submission by Amnesty International in the case of Luo Gan, August 2012 (in Spanish) 


 

The Netherlands: Frans van Anraat ordered to pay compensation to victims of mustard gas attacks by the Saddam Hussein regime

On 24 April 2013, Dutch businessman Frans van Anraat was ordered to pay €25,000 plus interest in compensation to each of 16 victims of mustard gas attacks in Iraq and Iran during the 1980s. However, while 13 Iranian victims were awarded compensation, applicable limitation periods under Iraqi law meant that all but three claims brought by Iraqi victims were ruled inadmissible due to the passage of time.  

Van Anraat is currently serving a 17-year prison sentence following his conviction by Dutch courts in 2005 for  complicity in war crimes, in relation to chemicals he sold to Saddam Hussein’s regime between 1985 and 1989 with the full knowledge that they would be used to create chemical weapons. 

Read the judgment of 24 April 2013 (in Dutch)


 

Germany: Criminal complaint filed against senior manager of Danzer Group in relation to human rights abuses in the Democratic Republic of Congo (DRC)

On 25 April 2013, the European Centre for Constitutional and Human Rigths (ECCHR) and Global Witness filed a criminal complaint with the State Prosecutor’s office in Tübingen, Germany, asking the Prosecutor to open an investigation into allegations against a senior manager of Swiss and German timber manufacturer, the Danzer Group. The allegations relate to aiding and abetting, through omission, violence by Congolese police and military against civilians in the village of Bongulu in northern DRC on 2 May 2011. According to witness testimony, security forces inflicted grave bodily harm, raped women and girls, arrested 16 people and destroyed property.

It is reported that the security forces received financial and logistical help, in the form of transport and payment, from logging company Siforco S.A.R.L. (Société Industrielle et Forestière du Congo), which at the time was a subsidiary of the Danzer Group. Under German law, corporations cannot be prosecuted for crimes, but senior managers may be held criminally responsible for failing in their duty of care towards those affected by the actions of their staff.

Read press statement by ECCHR and Global Witness

Read special newsletter on the criminal complaint against Danzer

Meetings and events

JUSTICE conference on international crime in London 

On 19 March 2013, JUSTICE supported a one-day conference exploring a wide range of issues related to investigation and prosecution of international crime. A panel on Prosecuting War Crimes included discussion of the definition of crimes subject to universal jurisdiction, updates on current case law from domestic and international courts, and the role of the Director of Public Prosecutions (DPP) in providing consent to instigation of prosecutions.


 

INTERPOL meeting on prosecution of Rwandan genocide suspects 

On 15 and 16 April 2013, INTERPOL convened a meeting in Lyon which brought together specialized Rwandan genocide investigators as well as prosecutors from 11 countries for an operational meeting to share information about wanted fugitives and facilitate the investigation of ongoing cases. Participants discussed information regarding more than 240 Rwandan genocide suspects who are the subjects of INTERPOL Red Notices or diffusions, and investigators exchanged material on specific cases.


 

Crown Prosecution Service Community Involvement Panel

On 22 April 2013, REDRESS participated in a Community Involvement Panel (CIP) meeting in London. Organised four times a year by the UK's Crown Prosecution Service (CPS), the meeting is invitation-only, and functions as a forum where stakeholders engaged in the investigation and prosecution of suspected perpetrators of international crimes within the UK are invited to meet, share information in confidence and exchange views. Participants include the CPS, police officers, representatives of the UK Border Agency and Foreign and Commonwealth Office, defence solicitors, academics and NGOs. 

The April 2013 meeting focused on the theme of special mission immunity, and a presentation was made to participants on behalf of the Foreign and Commonwealth Office.

Read Written Ministerial Statement on Special Mission Immunity, 4 March 2013


 

United Nations Commission on Crime Prevention and Criminal Justice (CCPCJ) 22nd Session

During the 22nd Session of the CCPCJ from 22 - 27 April 2013, the Netherlands, Belgium and Slovenia tabled a draft resolution containing a proposal for a new treaty on mutual legal assistance and extradition for domestic prosecution of the most serious international crimes. On 22 April, the permanent missions of Belgium, the Netherlands and Slovenia also organised a side event on "Fixing the Gap: Towards better international cooperation for domestic prosecution of the most serious international crimes". 

Read the remarks of the Dutch Secretary of State for Security and Justice

New reports

Swiss Coalition for the ICC submits position on Convention on Enforced Disappearance to Swiss Confederation

The Swiss Coalition for the ICC submitted a petition (in French) on the ratification and implementation of the Swiss Federal Council's recent commitment to ratifying the International Convention for the Protection of All Persons from Enforced Disappearance. The position includes a reminder that universal jurisdiction must be used to prosecute any perpetrator of enforced disappearance who is present on Swiss territory.

Read the position of the Swiss Coalition for the ICC (in French)

Read statement by TRIAL (in English)

Recent publications

"Thatcher Backed Pinochet in Landmark Human Rights Case"

In a recent opinion piece, Mugambi Jouet discussed Margaret Thatcher's fierce opposition to universal jurisdiction, particularly in the context of her support for Augusto Pinochet. During a speech at the 1999 Conservative Party Conference, Thatcher "accused Britain's Labor government of collaborating in Pinochet's 'judicial kidnap' and ignoring his past support to the United Kingdom. In her view, the criminal allegations against Pinochet were entirely baseless and simply a pretext for a revenge by 'the Left'. Pinochet was prosecuted for 'defeating communism', the Iron Lady declared."


 

"Prosecuting Human Rights Violations: Universal Jurisdiction and the Crime of Torture"

Tobias Kelly, in Mark Goondale, ed., Human Rights at the Crossroads (Oxford University Press USA, November 2012).


 

"‘Round Peg, Square Hole?’ The Viability of Plea Bargaining in Domestic Criminal Justice Systems Prosecuting International Crimes"

Anjali Pathmanathan, International Criminal Law Review 2013 12(2): 319 – 384.


 

"Corporate Criminal Responsibility for International Crimes: Exploring the Possibilities"

Harmen van der Wilt, Chinese Journal of International Law 2013 12: 43-77.


 

"International Civil Jurisdiction Based on the Place of the Tort"

Nozomi Tada, Japanese Yearbook of International Law, (Vol. 55, 2012).


 

"Foreign Official Immunity: Invocation, Purpose, and Exceptions"

Ingrid B. Wuerth, Swiss Review of International and European Law, 2013, forthcoming.


 

"Rethinking Jus Cogens after Germany v Italy: Back to Article 53?"

Jure Vidmar, (2013) Netherlands International Law Review, 60, pp 1-25. 


Disclaimer: This informal update is provided for information purposes only. Inclusion of information in this newsletter does not constitute endorsement by REDRESS. It is not intended to be comprehensive in nature and may contain errors. Neither REDRESS nor its partners are liable for any use that may be made of the information contained in this document. 

To subscribe to this newsletter please contact Tara O'Leary, Universal Jurisdiction Project Coordinator, at tara@redress.org. We welcome any questions or queries.

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