On 13 October 2021, UpRights Co-Founder Alessandro Pizzuti participated in a panel discussion at the University of Amsterdam concerning crimes committed against migrants in Libya. The event, organized by the Amsterdam Center for Criminal Justice at the University of Amsterdam as part of the “Global Justice Sessions” series, included a screening of “Libya: No Escape from Hell” by director Sara Creta. The documentary illustrated ongoing mistreatment of migrants in detention centers across Libya.

As part of the panelist discussion, Alessandro outlined the applicability of international criminal law to the abuses committed against migrants. While crimes against migrants are typically viewed as human rights violations, international criminal law must also be considered as a relevant framework to pursue prosecutions and ensure accountability. In light of the link with the armed conflict ongoing in Libya, the abuses committed against migrants in detention centres may be qualified as war crimes and fall within the jurisdiction of the International Criminal Court.

Co-panelists included Ramadan Alamami (former prosecutor in Libya and current CEO of “Adala for all”), Mark Micallef (Director of the “North Africa and Sahel Observatory” of Global Initiative Against Transnational Organized Crime) and documentary filmmaker Sara Creta.

In a Blogpost published on Opinio Juris as part of a symposium on the current crisis in Myanmar, UpRights co-founder Valérie Gabard and Kingsley Abbott, the Director of Global Accountability & International Justice at the International Commission of Jurists. argue that post-coup violations should be investigated as crimes against humanity under article 7 of the International Criminal Court Statute.

The post argues that considering this conclusion, it is critical that: States support the mandate of the Independent investigative Mechanism for Myanmar (IIMM), which has announced that crimes against humanity have “likely been committed” since the coup; possible for a for legal proceedings are actively identified, where evidence collected by the IIMM could help facilitate justice for the people of Myanmar; and the UN Security Council refer Myanmar to the ICC.

To read the full blog post follow the link

In a blogpost published on OpinioJuris, UpRights co-founder Alessandro Pizzuti and Dr. Clare Frances Moran from Edinburgh Napier University discuss the human rights implications of the Memorandum of Understanding signed between Italy and Libya in 2017.

The support provided by Italy pursuant to the Memorandum of Understanding has enhanced the capacity of the Libyan Coast Guard to intercept migrants at sea and return them to Libya where they are subjected to systematic abuses including torture, sexual violence, and murder. These forms of abuses may amount to violations of the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR) and the Convention against Torture (CAT). To the extent that Italy’s support to the Libyan authorities is instrumental to such violations, these instruments may apply extraterritorially, attracting Italy’s responsibility for such acts.

Read the full blogpost on OpinioJuris!

In July, Uprights released a concluding that Italy’s cooperation with Libyan authorities under the MoU is in violation of its human rights obligations and that the agreement needs to be reframed consistently in accordance with international law standards.

From 26 July to 31 July 2021, Valérie Gabard, co-founder of UpRights delivered two trainings for members of the National Commission for Human Rights and for members of civil society organisations on best practices for the documentation of serious human violations and international crimes as part of the “Human Rights and Access to Justice in Burkina Faso” program (DHAJ) lead by the American Bar Association Rule of Law Initiative (ABA ROLI).

From 26 to 28 July 2021, UpRights delivered a training for the members and the staff of the Burkina Faso National Commission for Human Rights. The three-day training centred on techniques to improve the documentation of serious human violations and international crimes in the context of crises or conflict situations.

The deterioration of the security situation in Burkina Faso in recent years has led to an increase in the number and a change in the nature of serious human rights violations and abuses committed in the country. The training was designed to assist the commissioners and staff of the National Commission for Human Rights in carrying out their human rights documentation mandate in this context. The goal of the training, according to Valérie Gabard, co-founder of UpRights “is to give this relatively young institution a systematic framework and the tools to facilitate the work of investigators in the field”.

This training was followed by a two-day training on the same topic for civil societies organisations (field partners of the National Commission for Human Rights) and members of two working groups within the Commission. It was the first capacity-building training for Civil Society Organizations from the region, and it aimed at harmonizing the practices of the organisations for the documentation of serious human violations and international crimes in the context of Burkina Faso.

“This training is welcome because it meets the needs of our work in the field as members of an organization for the defense of human rights, particularly in terms of information collection, treatment, approach, organization of field missions, and especially of documentation and data backup. Given the situation the country is going through, this training will allow us to be more productive”, said at the end of the training Ousséni Maïga, Secretary general of the Center for Good Governance in the Sahel, Vice-president of the working group “Service to victims including legal and judicial assistance”.

These two capacity building trainings are part of the “Human Rights and Access to Justice in Burkina Faso” program (DHAJ), a program funded by the American Agency for International Development (USAID) and implemented by a consortium of organisations comprising the American Bar Association Rule of Law Initiative (ABA ROLI – leader of the project) but also Freedom House, Search For Common Ground, and Pact.

To learn more, follow the links to the Burkina Faso National Commission for Human Rights website:

Renforcement de capacités : Les membres de la CNDH formés aux techniques d’investigation

Investigation des cas de violation des droits humains : Des OSCs formées afin d’harmoniser les pratiques

UpRights is pleased to share a new position paper entitled “Towards a Better Migrant Protection Framework Along the Central Mediterranean Route: Human rights implications and necessary revisions of the Memorandum of Understanding Between Italy and Libya”.

Read the full Position Paper.

The paper considers the human rights implications of the Memorandum of Understanding (MoU) signed between Italy and Libya on 2 February 2017 in which Italy committed to support and strengthen Libyan authorities’ ability to perform rescue missions and intercept migrants attempting to cross the Mediterranean Sea.

The position paper highlights that the implementation of the MoU by Italy is in violation of its obligations under international human rights law. The paper recommends that Italy amend the MoU to ensure that cooperation with Libya is consistent with its international obligations. Should such amendments be impossible, Italy must suspend or terminate the MoU to ensure it is in compliance with relevant international obligations.

As detailed in the paper, the MoU has empowered Libyan authorities, particularly the Libyan Coast Guard, at the expense of migrants’ human rights. Migrants recovered at sea by the Libyan Coast Guard have been and continue to be subjected to serious forms of mistreatment by the Libyan Coast Guard and the armed groups in charge of the detention centres where migrants are later transferred after disembarking in Libya. They are subjected to various forms of ill-treatment, including arbitrary arrest, torture, inhuman treatment and sexual violence. In addition, Libyan authorities have been directly implicated in the business of trafficking of migrants.

Despite awareness of the abuses faced by migrants rescued at sea by the Libyan authorities, the Italian authorities have not undertaken any measures to prevent the commission of further human rights violations. On the contrary, the MoU was tacitly renewed in February 2020. In addition, on 15 July 2021, the low chamber of the Italian Parliament (Camera dei Deputati) authorised once again the financing of the Libyan Coast Guard pursuant to the MoU. This decision will be effective once ratified by the high chamber of the Parliament (Senato).

The paper considers the potential Italian liability emanating from the MoU in light of the conduct of Libyan authorities including potential violations of the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights and possibly the European Convention on Human Rights. Indeed, the Italian Government’s material support for the Libyan authorities, without due regard for the human rights of those whom their actions affect, attracts its responsibility under these instruments.

This paper recommends that Italy’s cooperation with Libya must be reframed consistently with its human rights obligations and in light of the recommendations formulated on numerous occasions by different international organisations including the Committee Against Torture and the Council of Europe.

In particular, Italy should amend the current MoU to include a human rights clause specifying that the respect of human rights, and possibly of international humanitarian law, is an essential element of the respective treaty. The provision must allow the parties to suspend or terminate the treaty in case of persistent violations of the clause and should, at a minimum, incorporate:

1. The establishment of an independent body or organ in charge of monitoring and evaluating of human rights and international humanitarian law compliance by the parties in the execution of the MoU;

2. A list of mitigating measures which parties may seek in the event of human rights violations to address such violations and ensure non-repetition;

3. The implementation of a legal framework to facilitate effective access to justice for those who suffered human rights violations connected to the support provided by Italy on the basis of the MoU.

Should amendments consistent with these principles be unable to be introduced in the MoU, the paper concludes that the only viable alternative which can ensure Italy is not held responsible for the human rights violations committed by the Libyan authorities would be to terminate or suspend the MoU.

On 1 July 2021, the European Center for Constitutional and Human Rights (‘ECCHR’), with the support of UpRights, filed a Request to the Office of the Prosecutor of the International Criminal Court to review its decision of 9 December 2020 not to pursue an investigation with respect to the Situation in Iraq/UK.

In December 2020, the ICC Office of the Prosecutor announced that it would not pursue an investigation with respect to the Situation in Iraq/UK concerning alleged war crimes committed by UK armed forces in Iraq between 2003 and 2009. In its decision, the Office of the Prosecutor determined that there was a reasonable basis to believe that members of the UK armed forces committed war crimes in Iraq. However, under the complementarity assessment, the Office of the Prosecutor found that the relevant potential cases were inadmissible, concluding that the UK authorities are not unwilling to genuinely conduct investigations and prosecutions vis-à-vis the alleged crimes, pursuant to Article 17 of the Rome Statute.

With the support of UpRights, ECCHR filed a request seeking the ICC Prosecutor to reconsider the decision to close the situation in Iraq/UK or, in the alternative, to seek a ruling from the Pre-Trial Chamber under Article 19(3) of the Rome Statute to review the approach adopted with respect to the complementarity assessment.

The ECCHR’s request articulates eight legal and factual errors that affected the outcome of the decision of the Office of the Prosecutor. According to the ECCHR, in addition to an inadequate analysis of the circumstances of the UK’s deficient domestic investigations, the Office of the Prosecutor also adopted an incorrect interpretation of the complementarity regime set by the Rome Statute and applied an excessively high standard of proof regarding the UK’s unwillingness to prosecute alleged war crimes. The request further submits new facts and evidence which warrant the reopening of the preliminary examination under Article 15(6) of the Rome Statute.

The ECCHR’s request represents a unique effort to challenge a decision by the ICC Prosecutor not to proceed with an investigation pursuant to Article 15(6) of the Rome Statute.

The Rome Statute does not provide victims and civil society organizations with a remedy to directly challenge the Prosecutor’s decision not to open a proprio motu investigation. Article 53(3) of the Rome Statute, instead, only gives referring States or the Security Council the power to request the Pre-Trial Chamber to review a decision of the Prosecutor not to proceed with an investigation. The lack of statutory remedies for victims and civil society organizations, who are essential information-providers for the Court, represents a problematic unbalance and can be seen as a gap in the Rome Statute. The ECCHR’s request attempts to fill this gap and UpRights is pleased to have contributed to this important effort to ensure justice for victims.

Read the ECCHR Press Release

On 14 June 2021, UpRights co-Founder, Valérie Gabard, participated in the virtual seminar ‘Strengthening Domestic Capacity to Prosecute and Adjudicate International and Transnational Crimes in Africa’.

The high-level seminar, organised by the International Nuremberg Principles Academy, the Asser Institute and the Antonio Cassese Initiative, followed a training course held in February 2020 in Arusha, Tanzania and an online training in March 2021. 17 judges and prosecutors from Benin, Burkina Faso, Burundi, Cameroun, Chad, Democratic Republic of the Congo and Niger participated in the series of lectures of the high-level seminar.

UpRights conducted an interactive exercise for the Judges and Prosecutors’ oriented around the type of international crimes committed by armed groups and defence and security forces in respective West African contexts. The training allowed the participants to apply challenges present in their respective jurisdictions. Participants working individually and in groups identified whether war crimes and crimes against humanity may have been committed. The focus of the exercise was around the prosecution of international crimes in the context of the fight against terrorism with a particular focus on sexual and gender-based violence.

In the last week, UpRights participated in three seminars on current issues in the field of International Criminal Law (ICL) to students of University of Bologna (Italy) and ITAM University of Mexico City (Mexico).

On 24 March, UpRights co-founder Alessandro Pizzuti, and legal researcher Luigi Prosperi met with students of the “International and European Criminal Law” course of the Department of Legal Studies of the University of Bologna to discuss challenges and outcomes of potential International Criminal Court investigations into crimes allegedly committed against migrants in Libya. They actively worked with students to identify challenges related to the jurisdictional requirements arising from the United Nations Security Council Resolution 1970 which triggered the jurisdiction of the Court and concerning the qualification of the abuses committed against migrants as war crimes and/or crimes against humanity.

On 25 March, Luigi Prosperi discussed with the students of the “International and European Criminal Law” course of the Department of Legal Studies of the University of Bologna the recent decision of the International Criminal Court in the situation in Palestine. He analyzed the context, the reasoning, and the conclusions of the decision as well as the dissent, and the impact the decision may have on the investigation and prosecution of crimes allegedly committed by Palestinian and Israeli nationals during the 2014 Gaza War, in the West Bank and East Jerusalem, and in the context of the 2018 demonstrations on the border fence between the Gaza Strip and Israel.

On 19 March, Luigi Prosperi spoke with students as part of the “Seminario sobre Derecho Internacional Penal” organized by ITAM University of Mexico City (Mexico). He introduced the concept of crimes against humanity, as defined in the Statutes of international criminal tribunals – including the Nuremberg and Tokyo Tribunals, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court – and in the Draft articles on Prevention and Punishment of Crimes Against Humanity adopted by the International Law Commission in 2019. Discussion focused on the contextual elements of crimes against humanity and current practice of the International Criminal Court concerning the “organizational policy” requirement.

We would like to warmly thank Professors Gabriela Rodríguez and Guilherme Vasconcelos of ITAM University and Professor Emanuela Fronza of the University of Bologna for the invitation, and we look forward to further opportunities to discuss important issues of international criminal law and UpRights’ ongoing projects with students and scholars.

The blogpost published on OpinioJuris, by UpRights co-founder Alessandro Pizzuti and entitled ICC Situation on Libya: The ICC Prosecutor Should Look into Libyan Criminal Proceedings Concerning Crimes Committed Against Migrants is now available in Arabic.

The article discusses the International Criminal Court’s (ICC) investigation in Libya and explains why the ICC Prosecutor should look into Libyan criminal proceedings concerning crimes committed against migrants.

In a blogpost published on OpinioJuris, UpRights co-founder Alessandro Pizzuti discusses the Prosecutor’s recent separate determinations concerning the proprio motu preliminary examinations of Ukraine and Nigeria.

In both situations, the Prosecutor concluded that the criteria for opening an investigation under Article 53 of the ICC Statute were met. However, the Prosecutor stated that she will not immediately proceed with a request to initiate investigations in the respective situations due to budgetary constraints and considerations related to prioritisation of the OTP’s workload.

While no doubt grounded on legitimate practical concerns, such considerations do not seem to form part of the Prosecution’s discretion on whether and when to file a request to open an investigation pursuant to Articles 15 and 53 of the ICC Statute. This post contends that instead the proper stage to make an assessment concerning the prioritisation of the OTP workload is during the investigation phase rather than during the preliminary examination.

Without any clear, set parameters, decisions prioritising between different potential investigations to be initiated following the preliminary examination phase can lead to a precarious path whereby situations ready for investigation are put indefinitely on hold (essentially left in limbo) without the possibility for such a course of action to be challenged or otherwise subject to external oversight. This seems to be inconsistent with the overall structure of the Statute and in particular of Articles 15 and 53 of the ICC Statute. If necessary, such selection (with clear and transparent prioritisation criteria) should instead be conducted at the investigation phase where the Prosecutor is in a better position to secure evidence for trial as well as reach a more informed determination regarding which situations (or cases) warrant prioritising over others.

At the same time, States Parties have a specific duty to match the budget requests (and needs) of the Prosecutor in light of the current and expanding workload, as in any domestic judicial system. The operational hurdles faced by the Prosecutor due to her office’s capacity are concrete and undeniable. To manage the challenges faced, the Prosecutor requires the support of States and other relevant actors. The ICC Chambers have frequently cited or referred to the decisions from human rights treaty bodies to emphasise the Prosecutor’s obligation to carry out an effective investigation. We should not forget that such decisions were directed at the States as a whole and not only the relevant Prosecutor that conducted the investigations.