U.N. Official’s Report About  U.S. Poverty Is Criticized by U.S. 

On June 22, Philip G. Alston, the U.N. Special Rapporteur on Extreme Poverty and Human Rights,[1] presented to the U.N. Human Rights Council in Geneva, Switzerland his final report criticizing certain U.S. poverty policies. It immediately was condemned by U.S.  Ambassador to the U.N. Nikki Haley with a  prompt retort by Mr. Alston. We will examine these developments and then analyze this controversy.

Special Rapporteur’s Report on U.S.[2]

In his oral summary of the report, the Special Rapporteur made the following overall findings:

  • “[T]he combination of extreme inequality and extreme poverty generally create ideal conditions for small elites to trample on the human rights of minorities, and sometimes even of majorities. The [U.S.] has the highest income inequality in the Western world, and this can only be made worse by the massive new tax cuts overwhelmingly benefiting the wealthy. At the other end of the spectrum, 40 million Americans live in poverty and 18.5 millions of those live in extreme poverty.  In addition, vast numbers of middle class Americans are perched on the edge, with 40% of the adult population saying they would be unable to cover an unexpected $400 expense.”
  • “In response, the Trump administration has pursued a welfare policy that consists primarily of (i) steadily diminishing the number of Americans with health insurance (‘Obamacare’); (ii) stigmatizing those receiving government benefits by arguing that most of them could and should work, despite evidence to the contrary; and (iii) adding ever more restrictive conditions to social safety net protections such as food stamps, Medicaid, housing subsidies, and cash transfers, each of which will push millions off existing benefits.”
  • “My report demonstrates that growing inequality, and widespread poverty which afflicts almost one child out of every five, has deeply negative implications for the enjoyment of civil and political rights by many millions of Americans. I document the ways in which democracy is being undermined, the poor and homeless are being criminalized for being poor, and the criminal justice system is being privatized in ways that work well for the rich but that seriously disadvantage the poor.  Underlying all of these developments is persistent and chronic racial bias.  That bias also helps to explain the abysmal situation in which the people of Puerto Rico find themselves.  It is the poorest non-state in the Union, without a vote in Congress, at the mercy of an unelected and omnipotent oversight board, and suffering from record poverty levels in the aftermath of Hurricane Maria.”
  • In many cities and counties, “state and county taxes are capped; public budgets are slashed; governments are left without essential resources; they instruct their police departments to impose and collect more fines to fund the general budget; these fines fall overwhelmingly upon the poor; the victims cannot pay the fines and so additional penalties and fees accumulate; most scrimp and pay but some default and are imprisoned; when they are in prison their economic and family situations collapse; and when they emerge from prison they are even less unemployable because they have a conviction.”

Based upon these finding, the Special Rapporteur made these recommendations for the U.S.: (1) “acknowledge that America’s proudest achievement –a vibrant democracy – is in peril unless steps are taken to restore the fabric from which it was crafted, including the adage that ‘all are created equal.’” (2) “Stop irrationally demonizing taxation and begin exploring how reasonable taxes can dramatically increase the social well-being of Americans and the country’s economic competitiveness.” (3) Provide “universal healthcare [that] . . . would rescue millions from misery, save money on emergency care, increase employment, and generate a healthier and more productive workforce.”

Ambassador Haley’s Criticism of the Report[3]

 On June 21 (the day before the official release of the report), Ambassador Haley in a letter to U.S. Senator Bernie Sanders (Ind., VT), said. “ I am deeply disappointed that the Special Rapporteur used his platform to make misleading and politically motivated statements about American domestic policy issues. Regrettably, his report is an all too common example of the misplaced priorities and poor use of funds proven to be rampant throughout the UN system. The report categorically misstated the progress the [U.S.] has made in addressing poverty and purposely used misleading facts and figures in its biased reporting.”

“It is patently ridiculous for the [U.N.] to examine poverty in America. In our country, the President, Members of Congress, Governors, Mayors, and City Council members actively engage on poverty issues every day. Compare that to the many countries around the world, whose governments knowingly abuse human rights and cause pain and suffering.”

“Rather than using his voice to shine a light on those vulnerable populations [in Burundi and the Democratic Republic of the Congo], and so many others, the Special Rapporteur wasted the UN’s time and resources, deflecting attention from the world’ s worst human rights abusers and focusing instead on the wealthiest and freest country in the world.”

U.S. Mission to Geneva’s Criticism[4]

“The right to property, the right to pursue one’s own livelihood, and the right of free association are core economic and social rights by any reasonable definition, and have been core rights of the United States since its founding. The world knows that the U.S. economy is the largest, the most influential, and the most innovative on the planet.”

“Indeed, the U.S. is entering a new era of economic growth and prosperity.  Strong gross domestic product growth and increasing investment have already created 3.4 million new jobs, brought 900,000 workers off the sidelines since the President took office, and lowered unemployment to its lowest point in nearly 50 years.  The administration is fighting for American jobs and American workers, and standing strong with those that are standing strong for a more prosperous American economy. Sadly, Mr. Alston’s report does not give due credit to current policies enacted by this administration to spur economic growth and the prosperity it brings for all Americans.”

“We note that U.S. federal, state, and local governments guarantee emergency health care, a right to equal access to education, pursue policies that promote access to food, and support the need to promote, protect, and respect human rights in carrying out housing policies.  For example, the U.S. Department of Housing and Urban Development (HUD) and other federal agencies support communities that establish centralized or coordinated assessment systems, emphasizing that coordinated entry processes to ensure all people experiencing a housing crisis in a community have fair and equal access and are connected to available housing and related assistance based on their strengths and needs.  Across the nation, local homelessness provider organizations under a consortium called “Continuums of Care” support persons in emergency shelters and transitional housing programs as well as those living unsheltered on the streets through grants providing critically needed support to local programs on the front lines of serving individuals and families experiencing homelessness.  In January of this year, the ‘Continuums of Care’ provided a record $2 billion to support more than 7,300 local homeless assistance programs across the nation.  There is also robust funding for programs such as Emergency Shelter Grants and other programs like Community Development Block Grants that can be used to assist homeless.  This U.S. administration stands shoulder-to-shoulder with our partners to support real housing solutions for those who may otherwise be living in our shelters or on our streets.”

“Furthermore, the [U.S.] has robust legal protections to prohibit discrimination in the enjoyment of rights that are provided by domestic law.  For example, in the area of housing, HUD actively monitors and enforces laws prohibiting discrimination.  In 2016, HUD, along with its state and local partners, investigated more than 8,300 housing discrimination complaints and obtained over $25.2 million in compensation; through its Fair Housing Assistance Program, HUD paid state and local government partners more than $24.6 million to support local enforcement activities and outreach activities.  That same year, HUD also awarded through its Fair Housing Initiatives Program $38 million in grants to 155 organizations for private enforcement to prevent or eliminate discriminatory housing practices and for educational initiatives to inform individuals of their rights and responsibilities.”

“It is regrettable that the Special Rapporteur, while acknowledging that the political status of Puerto Rico is beyond his mandate, nevertheless chose to opine on the matte. Puerto Rico is a self-governing territory of the United States that achieved self-determination in 1952. In successive referenda, the residents of Puerto Rico have made the democratic choice to maintain the island’s current status or to pursue statehood, with a very small fraction opting for independence. Like the states of our federal system, the vast majority of Puerto Rico’s affairs are governed by a popularly elected governor and legislature, and disputes are settled by Puerto Rico’s independent judiciary.  It is baseless to argue, as the Special Rapporteur does, that Puerto Rico “is no longer a self-governing territory” when in fact its residents enjoy and exercise extensive democratic rights.  Furthermore, the U.S. administration is awarding over $18 billion in disaster recovery and mitigation funds to Puerto Rico, through HUD’s Community Development Block Grant – Disaster Recovery Program.”

“Accusations that the [U.S.] shows ‘contempt and hatred’ for the poor, including accusations of a criminal justice system designed to keep low income persons in poverty while generating public revenue, are inaccurate, inflammatory, and irresponsible.  The U.S. funds large public assistance programs designed to help low-income Americans, including $565.5 billion for Medicaid, $63 billion for Supplemental Nutrition Assistance Program (SNAP) benefits, and $42.5 billion for housing assistance programs.  In fact, more than $1 trillion dollars in means-tested benefits are provided to the poor annually by federal and state governments.  Based on some measures of consumption, poverty is down by 77 percent since 1980.  Recent studies using the Consumer Expenditure Survey suggest that only 175 of 222,170 surveyed American households reported spending less than an extreme poverty threshold figure of $4.00 a day, which implies that there are only approximately 250,000 persons in “extreme poverty” circumstances, rather than the exaggerated figure cited by the Special Rapporteur.  Regardless, any number of Americans with this severe level of economic difficulties should not be ignored, and a stronger focus of the Special Rapporteur on the problems and remedies for this population would have been welcome.”

Special Rapporteur’s Response[5]

“The suggestion that this Council should only consist of rights-respecting States was made long ago by the US and others, but abandoned because there are no workable criteria to determine who should qualify under such a test, and because a body composed only of self-appointed good guys would not only be tiny but would be talking unproductively among themselves.  Human rights promotion requires robust engagement, not behaving like the kid who takes his football and goes home.”

“Ambassador Haley complained that the Council has done nothing about countries like Venezuela.  In fact I and several other special rapporteurs reported earlier this year that ‘vast numbers of Venezuelans are starving, deprived of essential medicines, and trying to survive in a situation that is spiraling downwards with no end in sight.’  We warned of ‘an unfolding tragedy of immense proportions.’”

Moreover, “this Council has published many report detailing the situations in [Burundi and the Democratic Republic of Congo].” And “when [the U.S.,] one of the world’s wealthiest countries, does very little about the fact that 40 millions of its citizens live in poverty, it is entirely appropriate for the reasons to be scrutinized.”

“If this Council stands for anything, it is the principle of accountability – the preparedness of States to respond in constructive and meaningful ways to allegations that they have not honored their human rights commitments. The United States position, expressed by Ambassador Haley, [erroneously] seems to be that this Council should do far more to hold certain states to account, but that it should exempt the [U.S.] and its key allies from such accountability.”

“Ambassador Haley called my report ‘misleading and politically motivated.’ She didn’t spell out what was misleading but other stories from the same media outlet emphasized two issues.”

“The first is that my report uses official data from 2016, before President Trump came to office.  That is true, for the simple reason that there will be no Census Bureau data on the Trump era until September this year.  But these data provide the best available official baseline, and my report then factors in the effects of the combination of massive tax cuts for the wealthy and systematic slashing of benefits for the less well-off.”

“The second criticism . . . is that the US ‘economy continues to roar to life under President Trump.’ Indeed, the US economy is currently booming, but the question is who is benefiting. Last week’s official statistics show that hourly wages for workers in “production and nonsupervisory” positions, who make up 80% of the private workforce, actually fell in 2017.  Expanding employment has created many jobs with no security, no health care, and often with below-subsistence wages.  The benefits of economic growth are going overwhelmingly to the wealthy. Average pre-tax national income per adult in the US has stagnated at $16,000 since 1980 for the bottom 50% of the income distribution, while it has really boomed for the top 1%, a trajectory that has been quite different from that in most European countries. Even the IMF has warned that in the US “prospects for upward mobility are waning, and economic gains are increasingly accruing to those that are already wealthy”. In other words, the American dream of mobility, is turning into the American illusion, in which the rich get ever richer, and the middle classes don’t move.”

U.S. Withdrawal from U.N. Human Rights Council[6]

 As reported in a prior post, on June 19, the U.S. announced its withdrawal from the Human Rights Council, and on June 22, a spokesman for Ambassador Haley said that the Alston report had nothing to do with that decision. However, when Alston arrived in the U.S. last year, as noted above, he recently said, “A senior official said . . .my report could be a factor in whether the U.S. decided or not to stay in the council. I think I was being sent a message.”

Conclusion

There are many reasons why Ambassador Haley’s criticism of this report is unwarranted. Here are some.

First, the U.S. in June 2017 apparently joined other Council members in approving the resolution extending the mandate for the Special Rapporteur to, among other things, “(a) Further examine the relationship between the enjoyment of human rights and extreme poverty; [and] (b) Identify alternative approaches to the removal of all obstacles, including institutional ones, at the regional, national and international, public, corporate and societal levels, to the full enjoyment of human rights for all people living in extreme poverty.” That resolution also called “upon all Governments to cooperate with and assist the independent expert in his or her task, to supply all necessary information requested by him or her and to give serious consideration to responding favorably to the requests of the independent expert to visit their countries, to enable him or her to fulfil his or her mandate effectively.”[7]

Second, the U.S. invited the Special Rapporteur to visit the U.S., initially by the Obama Administration and then by the Trump Administration on June 8, 2017, at a Human Rights Council meeting.

Third, on November 29, 2017, a Human Rights Council Press Release announced that the Special Rapporteur would be visiting the U.S. in December 2017 with a detailed itinerary “to examine government efforts to eradicate poverty in the country, and how they relate to US obligations under international human rights law.” Mr. Alston said, “Some might ask why a UN Special Rapporteur on extreme poverty and human rights would visit a country as rich as the United States. But despite great wealth in the US, there also exists great poverty and inequality.”[8]

Fourth, on December 15, 2017, at the conclusion of his visit to the U.S., the Special Rapporteur released a statement on his visit with the following comments that later turned out to be a preview of the final report the following June:[9]

  • The U.S. is harnessing “neither its wealth nor its power nor its technology . . . to address the situation in which 40 million people continue to live in poverty.
  • He provided some details on both the negative and positive things he had witnessed as well as statistical comparisons of the U.S. with other countries. “American exceptionalism was a constant theme in my conversations.  But instead of realizing its founders’ admirable commitments, today’s United States has proved itself to be exceptional in far more problematic ways that are shockingly at odds with its immense wealth and its founding commitment to human rights.  As a result, contrasts between private wealth and public squalor abound.”
  • The then “proposed tax reform package stakes out America’s bid to become the most unequal society in the world, and will greatly increase the already high levels of wealth and income inequality between the richest 1% and the poorest 50% of Americans.  The dramatic cuts in welfare, foreshadowed by the President and Speaker Ryan, and already beginning to be implemented by the administration, will essentially shred crucial dimensions of a safety net that is already full of holes.”
  • The “indispensable ingredients for a set of policies designed to eliminate poverty. . . include: democratic decision-making, full employment policies, social protection for the vulnerable, a fair and effective justice system, gender and racial equality and respect for human dignity, responsible fiscal policies, and environmental justice. Currently, the United States falls far short on each of these issues” while providing further details.

Fifth, the Special Rapporteur, as of June 2018, has visited or plans to visit or has made comments about other wealthy countries (United Kingdom, and Japan), developing countries (China and Brazil)  and poorer countries (Ghana and Venezuela). [10]

Sixth, the Special Rapporteur correctly observes that human rights obligations are imposed on every country, regardless of its wealth.

Finally, recall that Ambassador Haley first criticized human rights groups for their failure to support U.S. efforts to reform the Human Rights Council as a contributing cause for the U.S. withdrawal from the Council.

The short response to the Ambassador is Shakespeare’s line in Hamlet, “The lady doth protest too much, methinks.”

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[1] Alston is an Australian citizen and John Norton Pomeroy Professor of Law, New York University and Director of NYU Center for Human Rights and Global Justice. Here is the website for the Special Rapporteur.

[2] U.N. Hum. Rts. Council, Oral Statement by Mr. Philip Alston Special Rapporteur on extreme poverty and human rights (June 22, 2018); Assoc. Press, UN Expert Slams US on Poverty, Quitting Global Rights Body, N.Y. Times (June 22, 2018).

[3]  Haley, Letter to Sen. Sanders (June 21, 2018); Stein, Nikki Haley: ‘It is patently ridiculous for the United Nations to examine poverty in the United States, Wash. Post (June 22, 2018).

[4] U.S. Mission to Geneva, Country Concerned Statement in Response to SR Alston’s report on the United States (June 22, 2018).

[5] U.N. Hum. Rts. Council,  Oral Statement by Mr. Philip Alston Special Rapporteur on extreme poverty and human rights (June 22, 2018).

[6] Stein, ‘I think I was being sent a message’: U.S. warned U.N. official about report on poverty in America, Wash. Post (June 22, 2018).

[7]  U.N. Hum. Rts. Council, HRC/RES/35/19 Human rights and extreme poverty (June 22, 2017); U.N. Hum. Rts. Council, HRC/RES/8/11, Human rights and extreme poverty (June 18, 2008).

[8] U.N. Hum. Rts. Council, Press release, UN expert on extreme poverty and human rights  to visit USA, one of the wealthiest countries in the world (Nov. 29, 2017).

[9] U.N. Hum. Rts. Council, Press Release, Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights* (Dec. 15, 2017); U.N. Hum. Rts. Council, Special Rapporteur, Press Conference, Washington, D.C. (Dec. 15, 2017).

[10] U.N. Hum. Rts. Council, Press Release, Venezuela: Dire living conditions worsening by the day, UN human rights experts warn (Feb. 9, 2018); U.N. Hum. Rts. Council, Press Release, China: UN experts concerned about health of jailed rights lawyer Jiang Tianyong (Mar. 23, 2018); U.N. Hum. Rts. Council, Press Release, Brazil: UN experts alarmed by killing of Rio human rights defender who decried military intervention (Mar. 26, 2018); U.N. Hum. Rts. Council, Press Release, Japan: Benefit cuts threaten social protection of the poor, UN rights experts warn (May 24, 2018); U.N. Hum. Rts. Council, Press Release, Ghana’s main economic initiatives will do little to reduce poverty, warns UN expert (June 20, 2018).

 

 

 

 

 

 

 

 

 

 

 

U.S. Withdraws from U.N. Human Rights Council 

On June 19 U.S. Secretary of State Mike Pompeo and U.S. Ambassador to the U.N. Nikki Haley announced that the U.S. had “withdrawn” from its membership on the U.N. Human Rights Council.[1] The Council’s current President, Ambassador Vojislav Šuc (Slovenia) immediately responded to this news.

Secretary Pompeo’s Remarks

“The Trump administration is committed to protecting and promoting the God-given dignity and freedom of every human being. Every individual has rights that are inherent and inviolable. They are given by God, and not by government. Because of that, no government must take them away.”

“For decades, the United States has led global efforts to promote human rights, often through multilateral institutions. While we have seen improvements in certain human rights situations, for far too long we have waited while that progress comes too slowly or in some cases never comes. Too many commitments have gone unfulfilled.”

“President Trump .. . has called out institutions or countries who say one thing and do another. And that’s precisely the problem at the . . . Council. As President Trump said at the UN General Assembly: “It is a massive source of embarrassment to the United Nations that some governments with egregious human rights records sit on the . . . Council.” In short, the Council now “is a poor defender of human rights.”

It “has become an exercise in shameless hypocrisy – with many of the world’s worst human rights abuses going ignored, and some of the world’s most serious offenders sitting on the council itself.” Those members include “authoritarian governments with unambiguous and abhorrent human rights records, such as China, Cuba, and Venezuela.” In addition, the Council’s “bias against Israel is unconscionable. Since its creation, the council has adopted more resolutions condemning Israel than against the rest of the world combined.”

Moreover, the U.S. “will not take lectures form hypocritical bodies and institution as Americans selflessly give their blood and treasure to help the defenseless.”

 Ambassador Haley’s Remarks

The Ambassador recalled her speech to the Council in June 2017 that “declared our intent to remain a part of the . . . Council if essential reforms were achieved.. . . to make the council a serious advocate for human rights.”[2]

She then provided details on how the U.S. since then unsuccessfully has endeavored to obtain such reforms. Therefore, the U.S. “is officially withdrawing from the . . . Council.”

The details of the failure of reform included: (a) the U.N. General Assembly last Fall electing as a Council member the Democratic Republic of the Congo, which “is widely known to have one of the worst human rights records in the world;” (b) the Council would not hold “a meeting on the human rights conditions in Venezuela” because it is a Council member; (c) early this year the Council passed five resolutions against Israel; (d) the U.S. effort to reform the Council was blocked by “unfree countries,” including “Russia, China, Cuba, and Egypt;” and (e) “many members that share U.S. values “were unwilling to seriously challenge the status quo.”

In contrast, she said, under U.S. leadership the U.N. Security Council this past 12 months held its “first ever . . . session dedicated to the connection between human rights and peace and security” and another session on “Iranian human rights.” In addition, last year the U.S. organized “an event on Venezuela outside the Human Rights Council chambers in Geneva.” And the Ambassador herself has traveled “to UN refugee and internally displaced persons camps in Ethiopia, Congo, Turkey, and Jordan, and met with the victims of atrocities in those troubled regions.”

Council President Šuc’s Statement[3]

“While I recognize it is the prerogative of any member State to take such a decision [to withdraw], I wish to acknowledge that the United States has been a very active participant at the Council having engaged constructively on numerous issues aimed at improving the lives of rights holders around the globe, including the many issues which we are addressing in our current session. The Human Rights Council always stands to benefit from constructive engagement of its member States.”

“In times when the value and strength of multilateralism and human rights are being challenged on a daily basis, it is essential that we uphold a strong and vibrant Council recognizing it as a central part of the United Nations for the 21st century.”

“Over the past 12 years, the . . . Council has tackled numerous human rights situations and issues keeping them in sharp focus.  In many senses, the Council serves as an early warning system by sounding the alarm bells ahead of impending or worsening crises.  Its actions lead to meaningful results for the countless human rights victims worldwide, those the Council serves.”

“The . . . Council is the only intergovernmental body responding to human rights issues and situations worldwide, with the active participation of civil society.  It provides a unique setting to hear a wide range of views, including those which other organizations are unable or unwilling to discuss.”

Conclusion

I disagree with the U.S. decision to withdraw from its membership on the Council for several reasons.

First, the Human Rights Council does not have the power to order any Council member or any other U.N. member to do anything. Instead it is “responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and [making] recommendations on them. It has the ability to discuss all thematic human rights issues and situations that require its attention.” In short, it is a forum for discussion or debate on these issues, and the U.S. has an important voice to raise on these issues.

Second, there are 47 Council members, and although the U.S. correctly points out that some members have horrible human rights records, there is no claim that such countries constitute a majority of the Council. Moreover, no country in the world has a perfect record on these issues, including the U.S.

Third, all Council members, including the bad actors, are subject to Universal Periodic Review (UPR) every five years. A mere summary of the latest UPRs for the countries mentioned by Secretary Pompeo and Ambassador Haley shows that each of them received many recommendations for improving their human rights records, thereby negating or diminishing the notion advanced by these two U.S. officials that those with poor records escape censure by the Council.[4]

Fourth, the High Commissioner for Human Rights has the authority and responsibility to provide the Council with his or her assessment of human rights concerns in the world. The current High Commission did just that on June 18 (the day before the previously mentioned U.S. decision to withdraw from the Council).[5] In so doing he had critical comments about  seven of the nine countries identified by Pompeo and Haley as having bad human rights records (China, Democratic Republic of Congo, Ethiopia, Iran, Russia, Turkey and Venezuela).

Fifth, the High Commissioner had these critical fact-based criticisms of    Israel and the U.S., which both countries should be willing and able to evaluate on their merits:

  • “Israel continues to deny access to the Occupied Palestinian Territory by the Special Rapporteur on the Situation of human rights in the Palestinian territory occupied since 1967. This has been the case for three successive holders of the mandate. Access has also been denied to all of the Council’s previous Commissions of Inquiry, including on Gaza in 2014. I believe the Council’s advocacy of impartial monitoring and expert recommendations is entirely justified by the gravity of the situation, and I urge Israel to provide access to all human rights mechanisms – including the investigative body mandated last month – to enable impartial monitoring and advance accountability and justice.” (Emphasis in original.)
  • “In the United States, I am deeply concerned by recently adopted policies which punish children for their parents’ actions. In the past six weeks, nearly two thousand children have been forcibly separated from their parents. The American Association of Pediatrics has called this cruel practice ‘government-sanctioned child abuse’ which may cause ‘irreparable harm,’ with ‘lifelong consequences’. The thought that any State would seek to deter parents by inflicting such abuse on children is unconscionable. I call on the [U.S.] to immediately end the practice of forcible separation of these children, and I encourage the Government to at last ratify the Convention on the Rights of the Child, in order to ensure that the fundamental rights of all children, whatever their administrative status, will be at the center of all domestic laws and policies.” (Emphasis in original.) [6]

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[1]  U.S. State Dep’t, Remarks on the UN Human Rights Council (June 19, 2018). The Council is made up of 47 U.N. Member States, which are elected by the majority of members of the U.N. General Assembly through direct and secret ballot. The Council’s Members serve for a period of three years and are not eligible for immediate re-election after serving two consecutive terms. The U.S. is in its second consecutive term ending  January 1, 2019.

[2] Haley, Remarks at the United Nations Human Rights Council (June 6, 2017); Haley, Remarks at the Graduate Institute of Geneva on “A Place for Conscience: the Future of the United States in the Human Rights Council” (June 6, 2017).

[3] Human Rts. Council, Press Statement by the President of the Human Rights Council, Ambassador Vojislav Šuc (Slovenia) (June 19, 2018)

[4] Human Rights Council: Report of the Working Group on the UPR-China (252 paragraphs of recommendations) (Dec. 4, 2013);Report of the Working Group on the UPR-Cuba (292 paragraphs of recommendations) (July 8, 2013); Report of the Working Group on the UPR-Democratic Republic of Congo (229 paragraphs of recommendations) (July 7, 2014); Report of the Working Group on the UPR-Ethiopia (252 paragraphs of recommendations) (July 7, 2014); Report of the Working Group on the UPR-Iran (291 paragraphs of recommendations) (Dec. 22, 2014); Report of the Working Group on the UPR-Jordan (173 paragraphs of recommendations) (Jan. 6, 2014); Report of the Working Group on the UPR-Russian Federation (231 paragraphs of recommendations) (July 8, 2013);Report of the Working Group on the UPR-Turkey (278  paragraphs of recommendations) (April 13, 2015); Report of the Working Group on the UPR-Venezuela (274  paragraphs of recommendations) (Dec. 27, 2016).

[5]  U.N. Hum. Rts. Council, Opening statement and global update of human rights concerns by UN High Commissioner for Human Rights Zeid Ra’ad Hussein at 38th session of the Human Rights Council (June 18, 2018).

[6] After a firestorm of criticism by the public and politicians from both major political parties, President Trump on June 20 signed an executive order ending the policy of separating immigrant children from their immigrant parents. (Haberman & Shear, Trump Signs Executive Order to Keep Families Together, N.Y. Times (June 20, 2018).)

 

 

U.N. Human Rights Council’s Sparring Over Cuban Human Rights

This September the U.N. Human Rights Council  in Geneva, Switzerland has encountered two items relating to Cuba: (a)  a Council reprimand of Cuba for its alleged punishing some of its citizens for cooperating with the U.N. on human rights and (b) Cuba’s human rights record.

The Council’s Reprimand

On September 20 the U.N. Human Rights Council reprimanded Cuba by putting it on a list of 29 states that have “punished people, through intimidation and reprisals, for cooperating with the UN on human rights.”  Such reprisals and intimidation include travel bans, asset-freezing, detention and torture.[1]

The  29 states on the list are Algeria, Bahrain, Burundi, China, Cuba, Egypt, Eritrea, Honduras, India, Iran, Israel, Mauritania, Mexico, Morocco, Myanmar, Oman, Pakistan, Rwanda, Saudi Arabia, South Sudan, Sri Lanka, Sudan, Tajikistan, Thailand, Turkey, Turkmenistan, United Arab Emirates, Uzbekistan and Venezuela. (The nine in bold along with 38 other U.N. members are elected by the U.N. General Assembly to serve on the Council.)

The report said the  following about Cuba:

“On 18 October 2016, some mandate holders raised with the [Cuban] Government allegations of harassment and reprisals against human rights defenders and members of the Cubalex Legal Information Center for their cooperation with the United Nations in the field of human rights (see A/HRC/34/75, CUB 3/2016). The allegations were mainly in relation to advocates’ cooperation with the Human Rights Council, its special procedures and the universal periodic review mechanism, and took the form of stop and questioning at the airport and harassment by immigration agents. Additionally, on 23 September 2016, the offices of Cubalex Legal Information Center were raided (CUB 3/2016).” (Report, Section V.B.5.)[2]

The Council’s Assistant Secretary-General, Andrew Gilmour, said, “There is something grotesque and entirely contrary to the Charter and spirit of the United Nations, and particularly this Council, that people get punished, through intimidation and reprisals, for cooperating with the U.N. on human rights,”

Complaint about Cuba’s Human Rights

On September 19, under the Council’s Agenda Item 4: “Human Rights Situations Requiring Council Attention,” a U.S. diplomat expressed U.S.’ deep concern about the human rights situation in Syria, the Democratic Republic of Congo, Burundi, Sudan, Myanmar, South Sudan, Russia, Iran, Democratic Republic of Congo, (North Korea), China, DPRK (North Korea), Hong Kong, Belarus, Turkey, Venezuela and Cuba. (Emphasis added.)[3]

The diplomat’s statement about Cuba was very short: “We urge Cuba to release political prisoners and cease the harassment of civil society groups.” (Emphasis in original.)

The U.S. statement about Venezuela, Cuba’s closest ally, was longer. It said, “We condemn the Maduro regime’s repressive actions to violate human rights including by suppressing dissent and peaceful protests in Venezuela.  We call on it to dissolve the illegitimate Constituent Assembly and restore Venezuela’s democratic institutions; hold free, fair, and credible elections as soon as possible; and provide humanitarian assistance for the Venezuelan people.” (Emphasis in original.)

Cuba’s Response.

The same day (September 19), Cuba’s Permanent Representative to the Council, Ambassador Pedro L. Pedroso Cuesta, made the following longer response:[4]

  • “Is it politicization, double standards and selectivity, [all] bad practices, that will end up prevailing in the work of the Human Rights Council? Many of us hope not.”
  • “However, what we have heard in the debate of this theme, as well as in others last week, suggests that some promote that this is the way to go by this body.”
  • “Several countries continue to seek to stand as paradigms for the promotion and protection of human rights and use this and other agenda items to criticize other countries, while xenophobia, racism and intolerance increase in their own territories to a highly worrying level.”
  • “How can one think they are seriously concerned about human rights situations in countries of the South, when they promote wars and interventions against them, and then ignore or keep their hands off the suffering they caused with these actions to citizens whose rights are supposedly sought to improve?”
  • “Why do they oppose implementing the right to development and thereby improve the situation of millions of people living in poverty?”
  • “Cuba rejects manipulation for political ends and double standards in the treatment of human rights. The accusations against my country made by the [U.S.] representative, as well as unfounded, are inconsistent with the need to promote an objective, non-politicized and non-discriminatory debate on human rights issues.”
  • “I must also draw attention to the fact that such statement, centered on the alleged violations of others, aims at ignoring all human rights violations occurring in its territory, and the deep international concern caused by the language of exclusion that appears in that country.”
  • “We demand the cessation of the economic, commercial and financial blockade imposed on Cuba for more than 55 years. The measures of June 16 to reinvigorate this blockade are doomed to failure, and will not achieve their purpose of weakening the Revolution or bending the Cuban people.”
  • “We reiterate our solidarity with the Venezuelan Government and people and call for an end to all interference in the internal affairs of that country. We demand respect for the legitimate right of the Venezuelan people to continue building the social model that drives the Bolivarian Revolution.”
  • “Let us not let the failure of the defunct Commission on Human Rights repeat itself in the Council. It is our duty to work for cooperation and respectful dialogue to prevail, and politicization, selectivity and double standards disappear once and for all.”

As mentioned in a previous post, U.S. Vice President MIke Pence at the U.N. Security Council Meeting  on September 20 complained about Cuba and certain other countries being members of the U.N. Human Rights Council in light of what he said was its oppression and repression, a charge rejected by Cuba at that same meeting and by Cuba’s Foreign Minister at the General Assembly on September 22.   https://dwkcommentaries.com/2017/09/24/u-s-cuba-relations-discussed-in-u-n-proceedings/

Conclusion

These developments at the Council do not involve the potential imposition of sanctions of any kind on Cuba. Instead they are, I believe, verbal sparring on an international stage. (If I am missing some potential sanctions, please advise in a comment to this post.)

I have not seen any Cuban response to the Council’s reprimand. In any event, Cuba as soon as possible should end any harassment of Cubalex Legal Information Center and any of its officers and employees.

Any reforms of the Human Rights Council would seem to lie with the General Assembly, which I assume would only do so after significant study, analysis and voting, and I am unaware of any such study being proposed or conducted.

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[1] U.N. Human Rts. Council, Report of the Secretary-General: Cooperation with the United Nations, Its representatives and mechanisms in the field of human rights (# A/HRC/36/31, Sept. 15, 2017)(Advance unedited version); U.N. Human Rts Council, Oral presentation by the Assistant Secretary-General for Human Rights of the Report of the Secretary-General on cooperation with the UN, its representatives and mechanisms in the field of human rights (No. 36/31 Sept. 20, 2017); U.N. Human Rts Council, Report highlights rising reprisals against human rights defenders cooperating with the UN (Sept. 20, 2017); Reuters, Record Number of States Punishing Human Rights Activism: U.N., N.Y. Times (Sept. 20, 2017).

[2] See earlier post to dwkcommentaries: Cuban Police Search and Seize Property of Independent Legal Center (Oct. 7, 2016) (CUBALEX is the Center in question); More Cuban Arrests of Dissidents ( Dec. 2, 2016) (arrest of Alfredo Ferrer Tamayo, who is ‎affiliated with Cubalex).

[3] U.S. Mission Geneva, Statement by the United States of America (Sept. 19, 2017).

[4] Cuba rejects manipulation of human rights issue in Geneva, Granma (Sept. 21, 2017).

Global Forced-Displacement Tops 50 Million

On June 20th, the United Nations refugee agency (U.N. High Commissioner for Refugees or UNHCR) reported that the number of refugees, asylum-seekers and internally displaced (IDPs) people was 51.2 million in 2013. This is the first time after World War II that the number has topped 50 million. (Articles about this report may be found in the New York Times and the Guardian.)[1]

This represented an increase of 6 million over the prior year due largely to the war in Syria and conflicts in the Central African Republic and South Sudan. Here is a graph showing the totals (with components), 1993-2013:

 

Refugee graph

Here is another graph showing the largest sources of refugees in 2013:

Source of refugees

Developing countries host 86% of the world’s refugees. The top five host countries are Pakistan, 1.6 million; Iran, 0.9 million; Lebanon, 0.9 million; Jordan, 0.6 million; and Turkey, o.6 million. The U.S. ranks 10th as a host country with 0.3 million.

The U.N. High Commissioner for Refugees, António Guterres, said,”We are seeing here the immense costs of not ending wars, of failing to resolve or prevent conflict. Peace is today dangerously in deficit. Humanitarians can help as a palliative, but political solutions are vitally needed. Without this, the alarming levels of conflict and the mass suffering that is reflected in these figures will continue.” He added, “The international community has to overcome its differences and find solutions to the conflicts of today in South Sudan, Syria, Central African Republic and elsewhere. Non-traditional donors need to step up alongside traditional donors.”

Serge Schmemann of the New York Times editorial board observed that the report indicates that half “the refugees are children; a growing number of these are on their own . . . . More than half of the 6.3 million refugees under the refugee agency’s care have been in exile for five years or more, testifying to conflicts that rage on and on.” Schmemann added that the “stunning figures offer a bitter counterpoint to the growing resistance in Europe and the United States to letting in immigrants and asylum seekers, and to the endless sterile blame-games about responsibility for the various conflicts.”

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[1] A brief history of the UNHCR was provided in a prior post while another post discussed its report for 2010. Another post reviewed the international law of refugees and asylum seekers.

 

 

 

 

 

 

 

 

 

 

International Criminal Court: The U.S. and the ICC

International Criminal Court
International Criminal Court

We just reviewed the status of the investigative situations and cases of the International Criminal Court (ICC) and other ICC developments. Now we look at developments in U.S.-ICC relations.[1]

U.N. Security Council. On October 17, 2012, the U.N. Security Council had a general discussion on the promotion and strengthening of the rule of law in the maintenance of international peace and security with emphasis on the role of the ICC.

Susan Rice
Susan Rice

U.S. Ambassador to the U.N., Susan Rice, said at that meeting that “strengthening the global system of accountability for the worst atrocities remains an important priority for the [U.S.]. President Obama has emphasized that preventing mass atrocities and genocide is a core national security interest and core moral responsibility for our nation. We are committed to bringing pressure to bear against perpetrators of atrocities, ensuring accountability for crimes committed, and prioritizing the rule of law and transitional justice in our efforts to respond to conflict.”

Rice added that the U.S. “recognize[s] that the ICC can be an important tool for accountability. We have actively engaged with the ICC Prosecutor and Registrar to consider how we can support specific prosecutions already underway, and we’ve responded positively to informal requests for assistance. We will continue working with the ICC to identify practical ways to cooperate – particularly in areas such as information sharing and witness protection – on a case-by-case basis, as consistent with U.S. policy and law.”

Another important point for Rice was the need “to improve cooperation and communication between the Security Council and the Court. For example, the Council should monitor the developments in situations it refers to the Court, since the ICC may face dangers in conducting its work. However, we must also recognize that the ICC is an independent organization. This status raises concerns about proposals to cover its expenses with UN-assessed funding.” In addition, she said, the “interests of peace, security and international criminal justice are best served when the Security Council and the ICC operate within their own realms but work in ways that are mutually reinforcing. We should not accept the false choice between the interests of justice and the interests of peace.”

Assembly of States Parties. The U.S. continues to participate as an observer at meetings of the Court’s governing body, the Assembly of States Parties. At its November 2012 meeting, for example, major speeches were made by U.S. Ambassador-at-Large Stephen J. Rapp of the Department of State’s Office of Global Criminal Justice and Harold Koh, who then was U.S. Department of State Legal Advisor.

Stephen Rapp
Stephen Rapp

 

Ambassador Rapp said the U.S. had “worked diligently to promote an end to impunity” and had been “supporting the work of the ICC in each of its current cases.” He then outlined the following priorities for the Court and its supporters:

  • “First, it is essential that the fugitives who currently remain at large in the ICC’s cases are apprehended . . . and that the witnesses who testify and the victims who wish to participate in the proceedings are assured of their safety.” The U.S. uses “an array of tools to advance the causes of apprehension and witness protection.”
  • Second, “it is crucial that members of the international community continue to reinforce the legal norms and prohibitions that lead to the creation of institutions such as the ICC.” One example is the U.S. establishment of the Atrocities Prevention Board that was discussed in a prior post.
  • Third, “we must continue to strive to improve our system of international justice. . . . [The ICC needs] to build a solid jurisprudence, navigate challenges that arise in international cooperation, and establish legitimacy . . . as a fair and efficient criminal justice institution that makes prudent decisions in the cases it pursues, and those it declines to pursue.”
  • Fourth, “we all must continue to recognize that the ICC cannot and must not operate alone. States retain primacy, both legal and moral, in ensuring justice for grave crimes. Justice closer to the victims is always preferable, in a system that can account for local laws and custom, in a familiar language, and in an accessible setting. Even where the ICC does operate, tremendous work will remain to be done at the national level. . . . [The U.S.] looks forward to continuing to collaborate in promoting this crucial work.”[2]
Harold Koh
Harold Koh

Legal Advisor Koh said the Court was “an important forum” for advancing U.S. national security and humanitarian interests. It “can help increase stability and thus decrease the need for more costly military interventions in the future.”

Koh reviewed the five stages of the historical development of international criminal justice: (1) International Criminal Justice 1.0: The Nuremberg Trials that worked to establish the principles of legitimacy, professionalism, cooperation, and legality; (2) International Criminal Justice 2.0: The Ad Hoc Tribunals; (3) International Criminal Justice 3.0: The Hybrid Tribunals; (4) International Criminal Justice 4.0: The ICC; and (5) International Criminal Justice 5.0: The Future.

After reviewing the history of U.S. relations with the ICC, Koh discussed four important issues for the Court’s future. First, it needs to continue to develop the practice of positive complementarity so that the ICC is the court of last resort with fewer cases. Second, the ICC established important precedents with its first conviction (Lubanga of the DRC) and establishment of procedures and principles for reparations for victims in that case. Third, the ICC must build up its resources and capacities; it must function in a fair and transparent manner with able and unbiased prosecutors and judges; national judicial systems must be bolstered to reduce the ICC’s burdens; it must improve cooperation with states and enhance the efficiency and effectiveness of its prosecutions; and it should be cautious about moving forward with the amendment on the crime of aggression that was adopted at the Kampala Review Conference.

Koh concluded with more general comments about the future. He said the challenge is “to build the accountability agenda of the past seventy years into a sustained ‘Smart Power Approach’  to international criminal justice that sees accountability as part of a broader approach to diplomacy, development, rule of law, and atrocities prevention.”

New U.S. Statute To Assist ICC. On January 15th, President Obama signed The Department of State Rewards Program Update and Technical Corrections Act of 2012 (S.2318). The President said the new law “will enhance the ability of the U.S. Government to offer monetary rewards for information that leads to the arrest or conviction of foreign nationals accused by international criminal tribunals of atrocity-related crimes, and of individuals involved in transnational organized crime.” The President added, “This powerful new tool can be used to help bring to justice perpetrators of the worst crimes known to human kind. . . . We have made unmistakably clear that the United States is committed to seeing war criminals and other perpetrators of atrocities held accountable for their crimes, and today’s legislation can help us achieve that goal.

The new law declares “the sense of Congress that the rewards program of the Department of State should be expanded in order to … target other individuals indicted by international, hybrid or mixed tribunals for genocide, war crimes, or crimes against humanity.” It then goes on to authorize the State Department to pay rewards for “the transfer to or conviction by an international criminal tribunal … of any foreign national accused of war crimes, crimes against humanity, or genocide, as defined under the statute of such tribunal.”

Two provisions of the law show a continuing wariness about the ICC. One requires that 15 days before announcing a reward for the arrest of a particular foreign national accused of those crimes, the State Department must submit a report to Congress explaining why the arrest would be in the national security interest of the United States. The other declares that the law does not authorized activities precluded under the American Servicemembers’ Protection Act.

On April 3rd this new law was used when the U.S. offered to pay up to $5 million for information leading to the arrest, transfer or conviction of four ICC fugitives: Joseph Kony, Dominic Ongwen and Okot Odhiambo of the Lord’s Resistance Army in Uganda and Sylvestre Mudacumura of the Democratic Republic of the Congo. The names will be broadcast on radio and appear on reward posters printed in the languages of the fugitives’ countries, he said. “The offer of rewards for I.C.C. fugitives will be the biggest step we’ve taken toward engagement and support” for the court, Ambassador Rapp said.


[1] The website of the American Non-Governmental Coalition for the International Criminal Court (AMICC) has additional details about U.S. relations with the ICC, Congress and the ICC, U.S. law regarding the ICC, analysis and opinion about the U.S. and the ICC.

[2]  As a prior post reported, Ambassador Rapp also addressed the Assembly on the subject of complementarity.

 

 

 

 

 

 

 

 

 

 

International Criminal Court: Status of Its Situations and Cases

International Criminal Court
International Criminal Court

 This post will review the current status of the eight situations (all from Africa) currently under investigation by the Office of the Prosecutor (TOP) of the International Criminal Court (ICC) and the 30 individuals that have been charged by the ICC with crimes in those situations.[1]

1. Uganda

In July 2004, pursuant to a referral by the government of Uganda, TOP opened an investigation into the situation of the Lord’s Resistance Army (LRA)in Northern Uganda. That has resulted in charges of crimes against humanity and war crimes against five individuals, four of whom remain at large: Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen. The other (Raska Lukwiya) is deceased.

The hunt for Kony and other LRA leaders continues. Uganda has some 2,500 soldiers deployed around the border areas of Central African Republic (CAR) the Democratic Republic of Congo and South Sudan, where Kony and his fighters are thought to spend most of their time. The Ugandan troops are joined by 500 Congolese fighters, 500 South Sudanese and 350 CAR troops, all operating under the auspices of the African Union (AU). They have been assisted by 100 U.S. special forces. These efforts will continue despite the recent coup in the CAR.

On March 18, 2013, TOP issued a statement that LRA members  will not be killed or tortured if they surrender to the  ICC. All their human rights will be protected and the cases against them will be in accordance with accepted international human rights standards. They will face a fair, impartial and public justice that respects all their rights, including the right to be represented by a lawyer of their choice, and to present evidence in their defense. If convicted they will not be sentenced to death. Therefore, they should hand themselves over and face a fair justice process at the ICC or remain fugitives in full knowledge that military forces from many countries are looking for them, and they may be cornered, captured, and possibly killed or wounded in the process.

2. Democratic Republic of the Congo

In June 2004, pursuant to a referral by the government of the Democratic Republic of the Congo (DRC), TOP opened an investigation into the situation in the country since June 1, 2002. That has resulted in six cases against six individuals.

Thomas Lubanga Dyilo on March 1, 2012, was convicted of war crimes and on July 10, 2012, sentenced to 14 years imprisonment.

On July 8, 2012, the ICC issued its first decision on reparations. It decided that the potential beneficiaries are the direct and indirect victims who suffered harm following the crimes of enlisting, conscripting and using children under the age of 15 in Ituri in the DRC (9/1/02–8/13/03), including family members of direct victims and individuals who intervened to help the victims or to prevent the commission of these crimes. The decision also established the following principles for reparations:

  • no discrimination as regards age, ethnicity or gender;
  • reconciling the victims of child recruitment and their families and communities in Ituri;
  • preserving their dignity and privacy;
  • taking into account the age of the victims and the sexual violence that they may have suffered; and
  • the need to rehabilitate the former child soldiers within their communities.

Germain Katanga went on trial (with Mathieu Ngudjolo Chui) on November 24, 2009, on charges of crimes against humanity and war crimes within the meaning of Article 25(3)(a) of the Statute (committing the crimes jointly through another person). On February 7, 2012, evidence in the case was closed and closing arguments were heard in May 2012 by the Trial Chamber.

On November 21, 2012, the Chamber, 2 to 1, issued an order severing Mr. Chui from this case and deciding that the mode of liability of Mr. Katanga might be changed under Regulation 55(2)[2] to Article 25(3)(d) of the Statute (contributing in any other way to the commission of the crimes by a group of persons acting with a common purpose).

This proposed change (after the trial) was appealed by Mr. Katanga, and on March 27, 2013, the Appeals Chamber, 2-1, affirmed the Trial Chamber. It held that the decision was in accordance with Regulation 55(2) and did not violate the defendant’s right to a fair trial. However, it said, the Trial Chamber will have to be vigilant in its further deliberations to ensure that this right will not be infringed by further trial proceedings.

Mathieu Ngudjolo Chui , as just indicated, was tried with Mr. Katanga from November 24, 2009 through May 23, 2012 on charges of crimes against humanity and war crimes within the meaning of Article 25(3)(a) of the Statute (committing the crimes jointly through another person), but on November 21, 2012, Mr. Chui’s charges were severed.

On December 18, 2012, the Trial Chamber issued its unanimous verdict acquitting Mr. Chui of all charges because it had not been proven beyond reasonable doubt that he was the commander of the Lendu combatants from Bedu-Ezekere during the attack against the Bogoro village on 24 February 2003. On December 21, 2012, Mr. Chui was released from detention pursuant to an order by the Appeals Chamber.

The Office of the Prosecutor has appealed that verdict.

Bosco Ntaganda  has been charged with three counts of crimes against humanity and seven counts of war crimes.

On March 22, 2013, he voluntarily surrendered himself to the U.S. Embassy in Rwanda and asked to be turned over to the ICC. His decision prompted speculation as to why he did so. One theory says he was threatened by member of his own rebel group and wanted to save his own life. In any event, soon thereafter he made his initial appearance before the Court and said he was not guilty. The date for his confirmation of charges hearing was set for September 23, 2013.

Callixte Mbarushimana was charged with five counts of crimes against humanity and eight counts of war crimes, but on December 16, 2011, the Pre-Trial Chamber refused to confirm the charges, and on December 23, 2011, he was released from the Court’s custody.

Sylvestre Mudacumura  on July 13, 2012, was the subject of the Pre-Trial Chamber’s arrest warrant for allegedly committing nine counts of war crimes in the DRC, including  attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrages against personal dignity. He is at large.

3. Central African Republic

On May 22, 2007, pursuant to a referral by the government of the Central African Republic (CAR), TOP opened an investigation into alleged crimes, in 2002 and 2003, in that country. In which civilians were killed and raped; and homes and stores were looted in the context of an armed conflict between the government and rebel forces.

Jean-Pierre Bemba Gombo is the only case. He is charged as a military commander, with two counts of crimes against humanity: (murder and rape) and three counts of war crimes (murder, rape and pillaging). His trial started on November 25, 2010, and is not finished.

4. Darfur/Sudan

On June 6, 2005, pursuant to a referral by the U.N. Security Council, TOP opened an investigation into the situation in Darfur, Sudan since July 1, 2002.

That has resulted in six cases involving  seven  individuals, the following  four of whom are still at large: (i) Ahmad Muhammad Harun (20 counts of crimes against humanity and 22 counts of war crimes); (ii) Ali Muhammad Ali Abd-Al-Rahman (22 counts of crimes against humanity and 28 counts of war crimes); (iii) Omar Hassan Ahmad Al Bashir, the President of Sudan (5 counts of crimes against humanity, 2 counts of war crimes and 3 counts of genocide); and (iv) Abdel Raheem Muhammad Hussein (7 counts of crimes against humanity and 6 counts of war crimes).

Bahar Idriss Abu Garda was charged with war crimes, but in 2010, the Pre-Trial Chamber refused to confirm the charges, and rejected the Prosecutor’s application to appeal.

Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus are charged with co-commission of three war crimes. Their trial is scheduled to start on May 5, 2014.

In the latest (December 2012) semi-annual report to the U.N. Security Council on this situation and cases,[3] the Chief Prosecutor said that her office would consider whether further investigations and additional arrest warrants were needed to address recent violations, including reports of thwarting humanitarian aid deliveries, attacks on African Union-United Nations Hybrid Operation in Darfur (UNAMID) peacekeepers and bombardments and attacks on civilian populations.

The Chief Prosecutor also told the Council, “The question that remains to be answered is how many more civilians must be killed, injured and displaced for this Council to be spurred into doing its part. There are no words to properly express the frustration of Darfur’s victims, which we share, about the lack of any meaningful progress towards arresting those indicted by the Courts.”

In response, Sudan’s representative told the Security Council that the Prosecutor’s report was flawed, saying it contained unsubstantiated allegations, and contradicted UNAMID reports.  The report’s allegations of gender violence, for instance, did not provide sources, and it mistook tribal clashes for fighting between militias.  Also, reported attacks on peacekeepers had in fact been committed by bandits now being pursued by Sudanese authorities. He said the Court had become a tool for “blackmail” and for violating the sovereignty of small States and was being exploited by certain political interests.

Among the other statements at the Council meeting, a U.S. diplomat said mounting violence was a grave concern, including targeted civilian attacks and denying UNAMID access to affected areas.  Since UNAMID’s initial deployment in 2007, 43 peacekeepers had been killed, in attacks that could be prosecuted as war crimes.  The Council should condemn any and all attacks on mission personnel.  Reversing the cycle of violence required accountability for the perpetrators, he said, expressing dismay that the Sudanese Government was not cooperating with the Court, despite its obligation to do so fully.  Continued impunity for crimes committed in Darfur fomented instability and sent a dangerous message that there were no consequences to attacking civilians.  Welcoming the willingness of States to consider creative approaches and new tools to assist the Court, he also embraced further discussions on resolutions concerning Council referrals to the Court. [4]

5. Kenya

On March 31, 2010, the Pre-Trial Chamber, 2-1, authorized TOP to proceed with an investigation that it had proposed into the situation in Kenya between June 1, 2005 and November 26, 2009.

Uhuru Muigai Kenyatta is charged as an indirect co-perpetrator of crimes against humanity (murder, deportation or forcible transfer, rape, persecution and other inhumane acts. The charges stem from his alleged role in funding and organizing ethnic violence leading to the death of an estimated 1,200 people after the 2007 presidential election. His trial is scheduled to start on July 9, 2013.

In the meantime, on March 3, 2013, Kenyatta, who employed anti-ICC propaganda in his presidential election campaign, was narrowly elected President of Kenya, and on March 30th the country’s Supreme Court unanimously rejected a challenge to the election from his main electoral opponent. Kenyatta’s election creates an “awkward” situation, as the New York Times said, for the U.S. and other countries who need good diplomatic relations with Kenya.

William Samoei Ruto was charged with being an indirect co-perpetrator of crimes against humanity. His trial is scheduled to begin on May 28, 2013.

Joshua Arap Sang was charged with having contributed to crimes against humanity. His trial is scheduled to begin on May 28, 2013.

Henry Kiprono Kosgey was charged as an indirect co-perpetrator of crimes against humanity, but the Pre-Trial Chamber declined to confirm the charges.

Mohammed Hussein Ali was charged with crimes against humanity, but in 2012, the Pre-Trial Chamber refused to confirm the charges.

Francis Kirimi Muthaura was charged as an indirect co-perpetrator of crimes against humanity, and the re-Trial Chamber in January 2012 confirmed some of the charges. In March 2013, however, TOP filed notice to withdraw the charges because several people who may have provided important evidence regarding his actions, have died, while others are too afraid to testify for the Prosecution; the Government of Kenya failed to provide TOP with important evidence; and the key witness against him had recanted a crucial part of his evidence and had admitted he had accepted bribes.

6. Libya

On February 26, 2011, the U.N. Security Council referred the situation in Libya since February 15, 2011 to the Court. That has resulted in TOP’s charges against three individuals, one of whom died (Muammar Gaddafi) resulting in the dismissal of his case.

The other two (Saif Al-Islam Gaddafi and Abdullah Al-Senussi) are in the custody of the Libyan Provisional Authority and have not been turned over to the Court despite negotiations to that effect.

In October 2012, Libya asked the ICC to abandon its claims against the two men because it said Libya can give them fair trials in Tripoli.  In early 2013, Libyan officials told the ICC that the two men would be put on trial in Libya in May this year and would not face summary trial and execution.

In the latest (November 2012) semi-annual report to the U.N. Security Council on this situation and cases,[5] the Chief Prosecutor said both Saif Al-Islam Qadhafi and Abdullah Al-Senussi had been arrested and detained in Libya, and that the Libyan authorities had challenged the admissibility of the ICC’s case against Mr. Qadhafi and possibly of the case against Mr. Al-Senussi.  She said the ICC’s Pre-Trail Chamber would decide the merits of the challenge as to whether the case should be heard at the Court or in Libya, and should the challenge ultimately succeed, TOP would monitor those proceedings and cooperate with Libya, to the extent of the mandate.Emphasizing the pressing need for complementary and mutually supportive approaches to address accountability, she encouraged international support and assistance to enhance Libya’s capacity to deal with past crimes and to promote the rule of law.

A Libyan representative at the Council meeting said  his Government had set out its plans for stability, reconciliation and comprehensive justice for crimes that had been committed in his country and that its investigation was already at an advanced stage in some of those cases although the Qadhafi trial had been postponed in order to allow for the most thorough possible investigation.  Libya, he continued, has been cooperating with the ICC and was now awaiting the decision on the admissibility challenge in the Qadhafi case and a forthcoming similar challenge in the Al-Senussi case.  He reiterated his country’s pledge to carry out all procedures in compliance with international law.

A U.S. diplomat at the Security Council urged the Libyan Government to continue its cooperation with the Court.  It was an important moment for both Libya and the Court as they worked together, under their respective roles, in ensuring peace and accountability. It was critical for Libya to ensure the safety of ICC personnel on visits to the country. She added that the U.S. had endeavored to cooperate with the ICC in its efforts regarding Libya, consistent with U.S. law and policy.  Impunity for all serious crimes in Libya, including gender crimes, must be avoided, and victims should be assisted.  The U.S. would continue to work with the international community to assist Libyan efforts to reform its justice sector and advance human rights in the country.

7. Ivory Coast (Côte d’Ivoire)

On October 3, 2001, the Court’s Pre-Trial Chamber granted TOP request to commence an investigation into the situation in the Ivory Coast since November 28, 2010, and in February 2012 the Chamber expanded the investigation to cover the period September 19. 2002 through November 28, 2010.

Laurent Gbagbo, the former president of the country, has been charged with four counts of crimes against humanity. He was surrendered to the Court in November 2011, and his confirmation of charges hearing was held in February 2013.

Simone Gbagbo, the wife of Laurent Gbagbo, has been charged as an indirect co-perpetrator with four counts of crimes against humanity. She has not been turned over to the Court.

8, Mali

On July 13, 2012, the government of Mali referred the situation in that country since January 2012 to the ICC, which has assigned it to the Pre-Trial Chamber.

In January 2012 a rebellion began in Northern Mali, led by the National Movement for the Liberation of Azawad (MNLA). In March 2012, military officer Amadou Sanogo seized power in the country in a coup d’etat, citing the president’s failure to eliminate the rebellion. The MNLA quickly took control of the north, declaring independence as Azawad. However, Islamist groups that had helped the MNLA defeat the government, turned on the rebel group and took control of the North with the goal of implementing Sharia Law in Mali.

On January 11, 2013, the French Armed Forces intervened at the request of Sanogo’s government. On January 30th, the coordinated advance of the French and Malian troops claimed to have retaken the last remaining Islamist stronghold.

In the midst of these military engagements, on January 16, 2013, TOP announced that it formally had opened an investigation into the Situation in Mali since January of 2012. After thorough analysis it said it had found that evidence, admissibility, gravity of potential cases, and interest of justice all support the requirements to open a formal investigation into war crimes allegedly committed in Mali. Crimes alleged to have happened include murder; mutilation, cruel treatment and torture; intentionally directing attacks against protected objects; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court; pillaging; and rape. The ICC will move to investigate these alleged crimes and bring charges against individuals “who bear the greatest criminal responsibility for the most serious crimes committed.

In late January 2013, TOP warned Malian authorities to put an immediate stop to the alleged abuses and, on the basis of the principle of complementarity, to investigate and prosecute those responsible for the alleged crimes. TOP reminded all parties to the on-going conflict in Mali that it has jurisdiction over all serious crimes committed within the territory of Mali, from January 2012 onwards. All those alleged to be responsible for serious crimes in Mali must be held accountable.

Conclusion

The following summarizes the status of those charged with crimes by the Court as it nears its 11th anniversary on July 1, 2013:

Status Number
Deceased   2
At large or not in Court custody 12
Pre-Trial: charges not confirmed   6
Pre-Trial: pending   1
Trials scheduled to start by 12/31/14   5
At trial   1
Tried and convicted   1
Tried and status in question   1
Tried and acquitted   1
TOTAL 30

[1] There have been many prior posts about the ICC.

[2]  Regulation 55, which is titled “Authority of the Chamber to modify the legal characterization of facts,” says in part (2),”If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change.” Part (3) goes on to say, “For the purposes of sub-regulation 2, the Chamber shall, in particular,ensure that the accused shall:(a) Have adequate time and facilities for the effective preparation of his or her defence [sic] in accordance with article 67, paragraph 1 (b); and (b) If necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute in accordance with article 67, paragraph 1 (e).”

[3] A prior post discussed the June 2012 ICC report to the Security Council on the Darfur/Sudan referral.

[4] The U.S. statement regarding Sudan/Darfur is available online.

[5]  A prior post discussed the May 2012 ICC report to the Security Council on the Libyan referral.

International Criminal Court: Recent Developments

International Criminal Court

There have been significant recent developments at the International Criminal Court (ICC) with respect to Libya, the Democratic Republic of the Congo, Kenya, Sudan/Darfur, the Office of the Prosecutor, the campaign to add more States Parties to the Court’s Rome Statute and commentary on one of the Statute’s provisions.

Libya

ICC Report to Security Council. On May 16th the ICC Chief Prosecutor, Luis Moreno-Ocampo, made his semi-annual and last report on the situation in Libya to the U.N. Security Council. This was discussed in a prior post.

Postponement of Surrender of Saif Al-Islam Gaddafi. On June 1st the ICC’s Pre-Trial Chamber decided that Libya may postpones its execution of the Court’s request for the surrender of Saif Al-Islam Gaddafi , pending the Court’s final determination of Libya’s challenge to the admissibility of the case.

Libyan Detention of ICC Personnel. On June 6th four ICC staff members arrived in Libya to meet with Mr. Gaddafi to discuss his legal representation before the ICC. They were Melinda Taylor, an attorney who works in the ICC’s office of public defense and who was appointed to act as one of two interim lawyers for Mr. Qaddafi; an interpreter, Helene Assaf, from Lebanon; and Alexander Khodakov, a former Russian diplomat, and Esteban Losilla, a Spanish lawyer, who were sent to find out whether Mr. Qaddafi wanted counsel of his own choosing. Their visit had been agreed to by Libya.

The next day (June 7th), however, the four people were detained by Libyan authorities. The ICC protested their detention and demanded their immediate release.

However, as of June14th they were still being detained. They are accused of bringing a camera disguised as a pen and suspicious documents–letters for Gaddafi from allegedly dangerous people who are supporters of the old regime and a page with drawings that looked like codes. They also had three blank pages that were signed by Mr. Gaddafi. The Libyan authorities say they will not be released until Ms. Taylor answers questions about her dealings with Mr. Gaddafi.

In addition, as of June 14th the Libyan attorney general had said he had decided that Ms. Taylor and Ms. Assaf could be held for up to 45 days awaiting the results of his inquiry into possible “threats to national security.” The other two could leave Libya, but had chosen to stay to support their colleagues. The National Transitional Council has said that it was powerless to release the four individuals or influence the investigation

On June 15th the ICC issued a press release announcing that on the 12th (with the cooperation of Libyan officials) representatives of the ICC had met with the four individuals, who said they were in good health and had been well treated. The press release also made conciliatory comments that the ICC welcomed  the Libyan assistance, that the ICC was “very keen to address any regrettable misunderstandings on either side about the delegation’s mandate and activities during its mission in Libya” and that the ICC hoped “the release of the four detained persons will take place with no delay, in the spirit of the cooperation that has existed between the Court and the Libyan authorities.”

Democratic Republic of the Congo

Thomas Lubanga. On June 13th the ICC’s Trial Chamber held its hearing on the sentencing of Mr. Lubanga, who had been found guilty of war crimes regarding child soldiers. The Prosecutor asked for a sentence of 30 years imprisonment because of the seriousness of the crimes and the presence of these aggravating factors: (1) Lubanga as the top leader bears the greatest responsibility for the actions of the UPC militia; (2) his recruitment of children included particularly cruel treatment; (3) girls were recruited as sex slaves and were daily victims of rape by commanders and soldiers; and (4) children needed to be protected against violence and injuries and for their right to education.

Germain Katanga and Mathieu Ngudjolo Chui. The trial of these two gentlemen recently concluded, and the Trial Chamber’s judgment will be issued in the next several months. An interesting analysis of one of the issues raised in this case has been provided by Jennifer Easterday, a Ph.D. Researcher for the Jus Post Bellum project at the Grotius Centre for International Legal Studies at the University of Leiden in the Netherlands. That issue is whether the Trial Chamber may re-classify a conflict from international to non-international armed conflict or visa versa.

Callixte Mbarushimana. On May 30th, the ICC’s Appeals Chamber unanimously dismissedthe Prosecution’s appeal of the Pre-Trial Chamber’s refusal to confirm charges against Callixte Mbarushimana. The Appeals Chamber found that the Pre-Trial Chamber may evaluate ambiguities, inconsistencies, contradictions or credibility doubts in the evidence in determining whether to confirm charges under article 61 of the Rome Statute. The Appeals Chamber emphasized that “the confirmation of charges hearing exists to ensure that cases and charges go to trial only when justified by sufficient evidence” and that article 61(7) of the Rome Statute requires the Pre-Trial Chamber to evaluate whether the evidence is sufficient to establish substantial grounds to believe the person committed each of the crimes charged.

The Appeals Chamber also rejected the Prosecutor’s contention that under article 25(3)(d) of the Rome Statute, the contribution of an accused individual must be “significant”, because the alleged error did not materially affect the decision of the Pre-Trial Chamber. One of the three appellate judges, however, stated that the Pre-Trial Chamber erred in finding that the contribution to the crimes must be significant under article 25(3)(d) of the Rome Statute.

An NGO has observed that the decisions in the Callixte case are indicative of a more significant problem regarding gender-based crimes. It asserts that “more than half of all charges for gender-based crimes which reach the confirmation stage are not being successfully confirmed[;] no other category of charges before the ICC faces this level of dismissal and contention.”

Sylvestre Mudacumura. On May 31st the ICC’s Pre-Trial Chamber unanimously dismissedin limine (without examining the merits), the Prosecutor’s application for a warrant of arrest against Mr Sylvestre Mudacumura, considering that this application “fell short of the proper level of specificity” in describing the alleged crimes “for which the person’s arrest is sought”. The Chamber said the Prosecutor’s application did not provide “proper counts or any other kind of accompanying description of the specific facts underlying the crimes” and failed to “set out the specific references to the alleged crimes” as requested by the Rome Statute.

On June 13th the ICC Prosecutor submitted an amended application for an arrest warrant against Mr. Mucadumura, for five counts of crimes against humanity (murder, inhumane acts, rape, torture and persecution) and nine counts of war crimes (attack against a civilian population, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrage upon personal dignity). The Prosecution said it considers Mr. Mudacumura the Supreme Commander of the FDLR-FOCA, one of the most active militias in the Kivu Provinces of the DRC, and is allegedly responsible for a campaign of violence targeting civilians in these provinces.

Kenya

On May 24th, the ICC’s Appeals Chamber unanimously rejected challenges to the ICC’s jurisdiction in the two Kenyan cases. It said that the interpretation and existence of an ‘organizational policy’ for certain crimes against humanity under the Rome Statute relate to the substantive merits of these cases, not whether the Court has subject-matter jurisdiction. Therefore, the Chamber found that the ICC has subject-matter jurisdiction over the alleged crimes.

Sudan/Darfur

On June   the ICC Prosecutor reported on the situation in Sudan/Darfur to the U.N. Security Council. This was discussed in a prior post.

New Chief Prosecutor

ICC Prosecutor Basouda

On June 15th, Fatou Bousouda, the ICC’s new Chief Prosecutor, officially took office. In her acceptance of this position, she said she was “humbled” by her appointment, and promised to continue pursuing all cases that fall under the court’s jurisdiction. Other major  points in her speech were the following:

  • “The one thing which every one of you can rest assured of is that I will be the Prosecutor of all the 121 States Parties, acting in full independence and impartiality. Justice, real justice, is not a pick‐and‐choose system. To be effective, to be just and to be a real deterrent, the Office of the Prosecutor’s activities and decisions will continue to be based solely on the law and the evidence.”
  • “Thanks to the tireless efforts and the commitment of Luis Moreno‐Ocampo, [her predecessor, there is now] . . .  a well‐respected and sound functioning Office [of the Prosecutor], with almost 300 staff from 80 countries, 7 situations under investigation, 14 cases before the Chambers, 7 preliminary examinations and one verdict.”
  • “As I speak, massive crimes continue to be committed in Darfur (Sudan); Joseph Kony and the Lord’s Resistance Army’s acts of violence continue unabated in central Africa. . . . In total, 11 arrest warrants remain outstanding. Nothing short of arresting all those against whom warrants have been issued will ensure that justice is done for millions of victims of . . . [their] crimes. . . .”

The Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia and a former ICC Deputy Prosecutor, Serge Brammertz, has emphasized the urgent need for the new ICC Chief Prosecutor to have the support of states in arresting the Court’s fugitives. He stressed the need for universal acceptance of the ICC as one way to combat the concern about its current exclusive concentration on African situations. Another of his suggestions for the new ICC Chief Prosecutor was doing more  to strengthen national court systems that are capable of handling the crimes that are within the ICC’s jurisdiction under the principle of complementarity.

Because the ICC cannot respond to atrocities the world over, Brammertz says, the U.N. should use the work of international fact-finding and investigatory commissions as bases “for choosing the right follow-up action, whether technical help to the affected country, setting up hybrid national/international structures, or referring the situation to the ICC.”  There also needs to be standard procedures for collecting and storing evidence or conducting interviews as well as a permanent operational infrastructure for such commissions.

A columnist for London’s Guardian newspaper suggested the following priorities for the new Prosecutor:

  1. Rebuild ICC relations with Africa. All of the Court’s active investigations and prosecutions come from Africa, and many Africans believe the Court is anti-African. Bensouda, herself an African, should consult more frequently with the African Union and work to restore confidence in the Court.
  2. Prosecute cases in other regions. She should continue pending preliminary _– into Columbia, Afghanistan, Georgia, Honduras and North Korea and seek permission to start an investigation of Syria. She also should work to increase the number of Arab nations that are States Parties.
  3. Restore transparency to the internal and external practices of the ICC. She should create clear and public processes for launching investigations and issuing arrest warrants, particularly in cases where she acts proprio motu – exercising her discretion to launch investigations of her own initiative.
  4. Improve witness protection and investigatory techniques.
  5. Improve investigatory techniques. The ICC needs to avoid over-reliance on NGOs that are not trained in interrogation and evidence gathering.

ICC States Parties

The ICC is engaged in a campaign for universal adoption of its Rome Statute to persuade the remaining 72 U.N. Members that are not States Parties to join the 121 that already have done so. This campaign, it has been suggested, could be strengthened by using the U.N. Human Rights Council’s Universal Periodic Review process to press those 72 members on the subject.

As previously noted, the U.S. in the Obama Administration is now a member of the U.N. Human Rights Council, and its participation is credited with helping to increase international scrutiny of human rights abusers.

Other

Under Article 53 of the Rome Statute,  the ICC’s Prosecutor may, in certain circumstances, decline to press charges “in the interests of justice,” and the Office of the Prosecutor (OTP) has issued a policy paper on this provision.

Linda M. Keller, Associate Professor at Thomas Jefferson School of Law in San Diego, recently has explored an ongoing debate over whether the OTP should adopt ex ante guidelines for prosecutorial discretion in order to increase transparency and legitimacy, especially with respect to the “interests of justice” provision. She compared this provision of the Rome Statute with a similar provision in New York and concluded that (1) “requiring a written rationale regarding exercise of discretion does not necessarily yield thorough or convincing explanations, undermining arguments that the legitimacy of the ICC will be enhanced by public explanations of prosecutorial discretion; ” (2)  “such explanations may backfire when the balancing of nebulous factors leads to apparently inconsistent or arbitrary reasoning and results, which may undercut the credibility of the decision-maker;” and (3) “the lack of a guiding theory to drive the interpretation of ambiguous criteria can lead to more confusion than clarity when there is no agreement on the theoretical justifications for prosecution.”

Dr. Kamari Maxine Clarke, Associate Professor of Anthropology at Yale University and a Research Associate at its Law School, also has written about the “interests of justice” provision in May 18 and 19 posts.