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.

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 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.