In a separate opinion, Judge Luz Del Carmen Ibáñez cited Rome Statute Article 25(3)(a), which recognizes individual criminal responsibility where a person “commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.” As such, Judge Ibáñez clarified that “indirect co-perpetration in this case should not be seen as a stand-alone mode of liability, but as a particular form of co-perpetration . . . and that [t]he requirement of the existence of an organisation used to subjugate the will of the direct perpetrators refers to one of the forms in which commission through another person . . . may take place.”
The Court has made a clear distinction between perpetration and other modes of liability under the statute. Judge Ibáñez noted that the Court previously adopted the following objective criterion of “control over the crime”:
[O]nly those who have control over the commission of the offence – and are aware of having such control – may be principals because:
(1) They physically carry out the objective elements of the offence (commission of the crime in person, or direct perpetration);
(2) They control the will of those who carry out the objective elements of the
(3) Offence (commission of the crime through another person, or indirect perpetration); or
(4) They have, along with others, control over the offence by reason of the essential tasks assigned to them (commission of the crime jointly with others, or co-perpetration).
Further, “indirect perpetration through an organised power apparatus is a form of commission through another person as provided in article 25(3)(a) of the Statute whereby crimes are committed through an organised power apparatus.” The position within the organized power apparatus, may give that person the power of “functional control over the crimes and retains the power to frustrate their commission.”
The AppCh ultimately determined that contrary to Ntaganda’s challenge, “the Hema civilians functioned as a tool in the hands of the co-perpetrators” and that their “will had become irrelevant” and that the civilian conduct resulted from UPC/FPLC leadership orders.
2. Prosecutor v. Ongwen
Dominic Ongwen was a leader in the so-called Lord’s Resistance Army (LRA). He had been abducted and used as a child soldier for the majority of his life. This status put Ongwen in the position of being both an alleged vicious perpetrator and also a victim charged with committing some of the same crimes from which he claimed to have suffered. His situation, therefore, required ICC Trial Chamber IX (TC) to decide his criminal responsibility, evaluate his asserted defenses of duress and legal insanity, and determine the appropriate sentence, based on all of the facts. The trial began on December 6, 2016, and was submitted on December 12, 2019, after 234 hearings during which the Prosecutor submitted 116 witnesses, the Defense tendered sixty-three witnesses, and the representatives for the more than 4,000 victims who chose to participate offered seven witnesses. On February 4, 2021, the TC convicted Ongwen of sixty-one of the seventy counts he had been charged of; it also rejected Ongwen’s defenses. Just over three months later, on May 6, 2021, Ongwen was sentenced to twenty-five years imprisonment, over a partial dissent recommending thirty years. He filed a Notice of Appeal on May 21, 2021, and the appeal is still pending.
The TC’s Judgment recites the long history of the LRA: notably that it was founded by Joseph Kony in the 1980s in Uganda and is active throughout the region as well as in the Central African Republic and the Democratic Republic of the Congo. Uganda referred the situation to the ICC in 2004, and, thereafter, arrest warrants were issued for Kony and four individuals including Ongwen.
The TC specifically found that Ongwen was abducted when he was between nine and ten years old, and that he was between twenty-four and twenty-seven when the crimes charged were committed. These findings begged the obvious question: How, if at all, are these facts relevant to Ongwen’s criminal responsibility and proper sentence?
To answer this question, the TC first described the crimes with which Ongwen was charged in detail in the nearly 1,100-page Judgment. The seventy counts of war crimes and crimes against humanity fall into four categories:
(1) Four attacks on several displaced persons camps including the constitutive acts of murder, torture, enslavement, outrages upon personal dignity, persecution, destruction of property and pillaging;
(2) Crimes of sexual violence including rape, torture, forced marriage, forced pregnancy, sexual slavery, enslavement, and outrages against personal dignity against seven victims who were kidnapped and forced to serve in his personal household;
(3) Crimes of sexual violence against women and girls in and by his brigade; and
(4) Abduction of children under age fifteen for use as soldiers.
Ongwen was charged as a direct and indirect perpetrator and as an indirect co-perpetrator.
The TC found, beyond a reasonable doubt, that Ongwen was an apt pupil: Kony praised him, and Ongwen ultimately attained the position of brigade commander of the Sinia Brigade, one of four LRA brigades comprising several hundred members. Ongwen organized attacks, gave orders, and led members personally. No one was allowed to disobey his orders, or escape. The Court additionally found that Ongwen participated in, co-perpetrated, and knew of gender violence. He also participated in the abduction and use of children under fifteen as soldiers.
The Rome Statute, Article 7(1), defines “crimes against humanity” based on a list constitutive acts when those acts are committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Article 8 of the Rome Statute recognizes that war crimes include grave breaches of the Geneva Conventions and “other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law . . . .” Ongwen did not seriously contest that the crimes occurred, but he raised two defenses to his responsibility: legal insanity and duress.
Scholars generally categorize criminal defenses into “excuse” and “justification” types of claims. In the former category, the offender has committed a social harm, which is not offset by a lesser harm or social benefit, is excused because he or she is not a proper target for criminal adjudication and punishment. Classic examples include infancy, legal insanity, and duress or coercion. Colloquially translated, an excuse defense means that treatment may be a more just and efficacious remedy (e.g., for mental disease or infancy) or that the actor cannot control his or her actions (e.g., the coerced actor). A justification defense, in comparison, recognizes that the actor caused prohibited social harm but that the actions were justified because they mitigated or avoided a greater threatened harm. There was no justification claim in this case: Ongwen argued the substantive excuses of mental disease and duress.
Rome Statute Article 31 defines a mental disease or defect excluding criminal responsibility in familiar ter ms that resemble the American Law Institute’s Model Penal Code.
A person shall not be criminally responsible if, at the time of that person’s conduct: (a) The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law.
Thus, there are three elements of the defense: (1) a diagnosed mental disease or defect, which destroys (2) the capacity to appreciate either (3a) that the act was prohibited or (3b) the actor’s ability to control his or her conduct. In Ongwen’s situation, one would expect the debate to concern the last, alternate, prongs: did he understand what he was doing was legally or morally wrong (for example sexual violence, outrages upon personal dignity, abduction of children) or, more likely, even if he did, was he able to exercise self-control and not offend?
Instead, the TC focused on the first prong of the defense and found that Ongwen was not suffering from a mental disease when he committed the offenses. Defense experts testified that he suffered from a number of mental diseases including post-traumatic stress disorder (PTSD), depression, obsessive compulsive disorder (OCD), dissociative disorder, and suicidal ideation. The TC was unpersuaded, noting especially that Ongwen had behaved normally and even thrived while in the LRA. The TC found that he was good at his job, “hardworking” and able to function. Lay witnesses, including former fellow soldiers and some of his victims, testified similarly that he was generally a “good person” and skilled at his work. The TC further found that Ongwen’s ability to plan and execute complex attacks indicated the absence of mental disease. The TC found “the possibility that Dominic Ongwen was able to successfully hide from the persons around him the symptoms of his mental disorders, and that he was able to do so for a long period of time, throughout the period of the charges and possibly throughout, or almost throughout, his entire stay in the LRA, impossible in practice and purely theoretical;” the TC concluded that Ongwen did not suffer from a mental disease during the times of the crimes charged. Accordingly, the TC found it unnecessary to address the other elements of the legal insanity defense. This holding is raised on appeal.
The TC also rejected Ongwen’s defense of duress based on Rome Statute Article 31(1)(), which requires that
The conduct . . . has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.
The TC rejected any claim that Ongwen was threatened with imminent death or harm if he refused to obey orders or try to escape, recognizing that abstract dangers or theoretical risks are not sufficient to prevail on the defense. The TC also noted that even though Ongwen disobeyed Kony from time to time, he was still a favorite, successfully rising in rank and power in the LRA. He was not under threat of imminent death at all times; he could have escaped any time he chose, but did not. The TC’s rejection of Ongwen’s duress defense is also the subject of appeal.
The TC did not consider Ongwen’s status as both an accused and victim as mitigation for the crimes. But notwithstanding its decision to reject both defenses, the following passage shows that the TC recognized the real difficulty in this decision:
[W]hile acknowledging that indeed . . . Ongwen had been abducted at a young age by the LRA, the Chamber notes that . . . Ongwen committed the relevant crimes when he was an adult and, importantly, that, in any case, the fact of having been (or being) a victim of a crime does not constitute, in and of itself, a justification of any sort for the commission of similar or other crimes—beyond the potential relevance of the underlying facts to the grounds excluding criminal responsibility expressly regulated under the Statute.
Although the TC appeared reluctant to take real note of the fact pattern involving victims who are also perpetrators, the Question & Answer page posted on the ICC website about the Ongwen decision (which is not an official court decision), is more expansive, stating the following:
The Judges noted that Dominic Ongwen himself was abducted in 1987 at the age of around nine by the LRA. They are aware that he experienced much suffering in his childhood and youth. The Chamber might have to evaluate this in a later context.
The sentencing decision adopted a balancing test, weighing facts relevant to the offender and “crime specific circumstances and factors.” The Prosecutor agreed that Ongwen’s experience as a child soldier was relevant and warranted “some” sentence reduction, but argued that these experiences did not lessen Ongwen’s responsibility. The defense argued that his experiences effectively constituted a but for cause of his crimes. The class of victims recognized Ongwen’s history but countered that his actions were both extremely serious and voluntarily chosen by an adult. Considering all of these arguments, the TC found all of Ongwen’s experiences to be relevant but not a justification for the offenses. In applying the above-referenced balancing test and considering the Prosecutor’s recommendation of a one-third sentence mitigation, along with all aggravating and mitigating factors, the TC sentenced Ongwen to a total of twenty-five years imprisonment.
3. The Philippines Situation
a. A Chronological History
On October 13, 2016, the former ICC Prosecutor Fatou Bensouda highlighted that the extrajudicial killings reported during the Philippines War on Drugs campaign (WoD) “may fall under the jurisdiction of the International Criminal Court if they are committed as part of a widespread or systematic attack against a civilian population pursuant to a State policy to commit such an attack.” A preliminary examination was opened on February 8, 2018, when the Office of The Prosecutor (OTP) received several communications pursuant to Rome Statute Article 15. Subsequently, on May 24, 2021, Bensouda requested authorisation for an investigation pursuant to Rome Statute Article 15(3), stating there is a reasonable basis to believe that crimes against humanity were committed as part of the WoD between July 1, 2016 and March 16, 2019. On September 15, 2021, Pre-Trial Chamber I authorized the commencement of the investigation and instructed the Registrar to provide notice of the present decision to the victims who made representations.
This short essay considers the procedural issues, with special attention to jurisdiction ratione temporis, which remains, in the author’s opinion, an unresolved issue.
b. Jurisdiction Ratione Temporis
The Philippines ratified the Rome Statute on August 30, 2011. Therefore, based on Article 126(1), the Rome Statute because effective the Philippines beginning November 1, 2011. On March 17, 2018, the Government of the Philippines deposited a written notification of withdrawal from the Statute. In accordance with Article 127, the withdrawal took effect one year later, on March 17, 2019.
The jurisdictional situation in The Philippines for the WoD events that took place while the Rome Statute was in effect could be resolved in two different ways based on two different interpretations of Article 127: one “broad” and one “strict.”
Following a broad interpretation—as proposed by the OTP as well as the Pre-Trial Chamber I—jurisdiction ratione temporis is not an issue at all: jurisdiction is not subject to any time limit, particularly since the preliminary examination here commenced on February 8, 2018, prior to the Philippines’ withdrawal from the Rome Statute. Moreover, the precedent of Burundi Situation, supports this position. In the Burundi Situation, which seems to exclude any objections, as Pre-Trial Chamber III held that a State Party’s withdrawal from the Rome Statute does not affect the Court’s exercise of jurisdiction over crimes committed prior to the effective date of the withdrawal. Furthermore, this interpretation also is supported another decision, which was issued on May 17, 2021, in the Sudan-Darfur Situation. In that decision, Pre-Trial Chamber II stated the following:
[T]he very idea that the effect of an act triggering the jurisdiction of the Court could be simply taken away by a subsequent act—and one not even relating to the same subject matter—runs counter to fundamental and critical features of the system governing the exercise of the Court’s jurisdiction, as enshrined in the Statute as a whole.
Following this approach, the ICC would have jurisdiction from November 1, 2011, to March 16, 2019. The Pre-Trial Chamber dedicated just a few sentences to this issue in the Philippines Decision Request for Authorisation, highlighting that this broad interpretation “is in line with the law of treaties, which provides that withdrawal from a treaty does not affect any right, obligation or legal situation created through the execution of the treaty prior to its termination.” But is that interpretation sufficient? Or it is just the easiest and more discretional way to climb over a complicated procedural issue?
Indeed, following a “strict” interpretation of the statutory law, the result is the opposite. Article 127 provides that a country’s withdrawal from the Rome Statute shall take effect one year after the date of receipt of the notification, meaning that in this case the OTP had one year to request the investigation based on the Rome Statute. The Burundi precedent is not helpful because there is a significant difference between these cases: While the Burundi Situation was already in the phase of the authorization of an investigation under Article 15 at the time Burundi withdrew, the Philippines situation was still in the phase of the preliminary examination. More significantly, the Pre-Trial Chamber’s decision on Burundi was issued on October 25, 2017 (only two days before the withdrawal took effect), but the decision in the Philippines Situation was issued on September 15, 2021, more than two years after the withdrawal took effect. Furthermore, the Sudan-Darfur decision also involves a situation that differs significantly from the Philippines situation: Darfur fell under ICC jurisdiction on March 31, 2005, after the UN Security Council referred the situation to the ICC (Resolution 1593 (2005)),), and the investigation was opened in June 2005. This latter issue is not strictly related to Article 127, but Articles 13, 22 and 25, and the latest decision of the Appeals Chamber, issued on June 29, 2021, clarifies any residual doubts.
Although the broader interpretation has been preferred by both ICC Prosecutor and Pre-Trial Chamber I, what is the threshold of judicial interpretation? As the former ICC Vice-President Cuno Jakob Tarfusser said (regarding the Gbagbo-Blè Goude Appeal), “the ICC statutory legal framework is comprehensive enough so as to give ample possibility for solving legal problems through legal interpretation. No need for this continuous flourishing of judicial creations ultra legem.”
The solution to every issue may be found in the law, starting with the Rome Statute. If judicial interpretation of the procedural rules should strictly conform with statutory law, a strict interpretation should be followed.
c. Admissibility and Complementarity
The jurisdiction ratione temporis raises another potential challenge for the ICC judges in the Philippines Situation, because in their latter interpretation of Article 127, the issue remains theoretically unsettled. Possible challenges in terms of complementarity (and regarding Articles 18 and 19) are thus likely.
Reaching admissibility is a delicate and insidious procedural analysis. The main norm is Article 17(1)(a) and (b). Following the Katanga jurisprudence, whether a case is inadmissible is based on the following two initial questions: “(1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction has decided not to prosecute the person concerned." The second halves of sub-paragraphs (a) and (b) are used to examine unwillingness and inability only if the answers to both of these initial questions are affirmative. “To do otherwise would be to put the cart before the horse.”
Considering these questions, in 2018, in the Philippines, three police officers were investigated, prosecuted, and sentenced with the penalty of reclusion perpetua by the Caloocan City Regional Trial Court. Further, in June 2020, the Philippines announced the creation of an inter-agency panel, to reinvestigate deaths in drug-related police operations. In addition, there were Senate Committee hearings, a writ of amparo requesting a temporary protection order, and cases brought before the Ombudsman. Although in principle, only national investigations trigger the application of Article 17, an overall evaluation of all these factors could be taken into consideration. As highlighted in the request under Article 15, the total number of victims appears to be between 12,000 to 30,000. Therefore, these domestic trials are surely not sufficient to trigger complementarity.
Complementarity could represent a harsh challenge in Articles 18 and 19 perspectives, depending on the decisions of the Philippines itself. Procedurally speaking, the situation in the Philippines is far from simple. Indeed, on November 18, 2021, the Prosecutor notified Pre-Trial Chamber I that Philippines had requested deferral of the proceedings. Accordingly, the Prosecutor’s Office suspended the investigation pending the receipt of additional information, but clarified that “the Office will continue its analysis of information already in its possession and any new information it may receive from third parties,” and will “actively assess the need for applications to the Pre-Trial Chamber for authority to conduct necessary investigative steps for the preservation of evidence under article 18(6) of the Statute.”
B. The International Residual Mechanism for Criminal Tribunals
On June 8, 2021, the Appeals Chamber of the International Residual Mechanism for Criminal Tribunals (IRMCT) upheld the 2017 judgment of its predecessor court, the International Criminal Tribunal for the Former Yugoslavia (ICTY), and confirmed its sentence of life imprisonment for Ratko Mladić, the former Commander of the Main Staff of the Bosnian Serb Army.
The ICTY Trial Chamber had convicted Mladić for genocide; crimes against humanity (persecution, extermination, murder, deportation, and inhumane acts); and violations of the laws or customs of war. These acts had been committed by Serb forces during the armed conflict in Bosnia and Herzegovina (BiH) from 1992 until 1995. The Chamber found that “Mladić was instrumental to the commission of these crimes . . . so much so that without his acts, they would not have been committed as they were.” Specifically, it determined that Mladić had a “leading and grave role” in four joint criminal enterprises (JCEs):
(1) The “overarching JCE,” aiming to permanently remove Bosnian Muslims and Bosnian Croats from Bosnian Serb‐claimed territory in Bosnia and Herzegovina between May 1992 and November 1995;
(2) The “Sarajevo JCE,” aiming to spread terror among the civilian population of Sarajevo through a campaign of sniping and shelling between May 1992 and November 1995;
(3) The “Srebrenica JCE,” aiming to eliminate the Bosnian Muslims in Srebrenica between July and at least October 1995; and
(4) The “Hostage-Taking JCE,” aiming to capture UN Protection Force and UN Military Observer(s) personnel deployed in Bosnia and Herzegovina and detain them in strategic military locations to prevent the North Atlantic Treaty Organization from launching further air strikes against Bosnian Serb military targets from May to June 1995.
The ICTY Trial Chamber had, however, found Mladić not guilty of genocide with respect to crimes against Bosnian Muslims and Croats in certain BiH municipalities in 1992, reasoning that while the victims in each municipality had indeed been targeted as part of a protected group, they had constituted “a relatively small part and were not in other ways a substantial part” of that protected group; the Chamber was, therefore, “not satisfied that the only reasonable inference was that the physical perpetrators possessed the required intent to destroy a substantial part of the protected group of Bosnian Muslims.”
Mladić filed a notice of appeal on the following nine grounds:
(1) The manifest errors made by the Trial Chamber in the application/interpretation of the indictment resulted in violations of due process;
(2) The procedural errors made by the Trial Chamber infected the trial proceedings and the Judgement, thereby prejudicing the Appellant;
(3) The Trial Chamber erred in law and in fact by finding that an overarching JCE existed and that the Appellant participated in it;
(4) The Trial Chamber erred in law and in fact by finding that the Appellant participated in the JCE’s alleged in Srebrenica in Counts two through eight;
(5) The Trial Chamber erred in law and in fact by finding that the Appellant intended the objective of the hostage taking JCE and that he committed the actus reus and shared the requisite intent for the crime;
(6) Errors in law and in fact as to modes of liability;
(7) The Appellant’s right to a fair trial was grossly violated; and
(8) Appeal against the sentence.
The Prosecution also appealed on two counts, seeking a conviction for the single count of genocide for which Mladić had been acquitted, and requesting that he also be found liable under the command responsibility mode of liability.
In August 2020, the IRMCT conducted an appeals hearing in the Mladić based on jurisdiction pursuant to the UN Security Council’s Transitional Arrangements of 2010. But the hearing was fraught with complications arising from the COVID-19 pandemic and Mladić’s poor health. The final decision from the court upheld all the ICTY’s convictions, dismissing the appeals of both Mladić and the Prosecution.
Serge Brammertz, Chief Prosecutor of the International Residual Mechanism for Criminal Tribunals, made the following public statement after the issuance of the judgment:
Mladić ranks among the most notorious war criminals in modern history . . . His name should be consigned to the list of history’s most depraved and barbarous figures. This is not a judgment against the Serbian people, who Mladić and his supporters have manipulated for decades. Mladić’s guilt is his, and his alone.
C. International Court of Justice
Despite the ongoing confines of COVID-19 in 2021, the International Court of Justice (ICJ) issued one preliminary judgment and one final judgment; heard oral arguments on provisional measures, merits, and reparations; and announced the docketing of one dispute technically instituted by a 2016 special agreement.
1. Final Judgment
On October 12, 2021, the Court announced its judgment in Somalia v. Kenya. Somalia and Kenya have disputed their shared maritime boundary extending into the Indian Ocean for nearly half a century: Somalia contends the boundary continues the line of states’ land border; while Kenya maintains that the boundary takes a 45-degree turn at the coast to extend due east, parallel to a line of latitude.
Roughly 39,000 square miles rich with fish and oil and gas deposits fall within the disputed boundaries. After years of failed negotiations, in 2012, Kenya licensed foreign oil companies to explore potential resources in the disputed offshore territory. Two years later, Somalia instituted proceedings before the ICJ, requesting that the Court determine the border in accordance with the UN Convention on the Law of the Sea (UNCLOS). Somalia ultimately asked the Court to determine that Kenya’s exploration licensing violated international law and that Kenya must share its technical data obtained about the disputed area. Kenya raised jurisdictional objections, which the ICJ rejected in 2017.
On the merits, Somalia asserted no maritime boundary existed. Kenya countered that the parties had for years followed an agreed boundary along the parallel of the line of latitude where the states’ land border meets the sea—and even if the Court concluded there was no existing boundary, that latitude line should be the border. Somalia presented oral argument in March 2021, although Kenya declined to participate.
In its 2021 merits ruling, the Court first ruled unanimously “that there is no agreed maritime boundary between the Federal Republic of Somalia and the Republic of Kenya that follows the parallel of latitude” as Kenya described. The Court then established a boundary, parceling rulings as to the territorial sea (the first twelve nautical miles out from the shore’s baseline), the exclusive economic zone (extending from the territorial sea up to 200 nautical miles from the baseline), and across the continental shelf. The Court ruled unanimously that the maritime boundary begins with a straight line extending from the states’ coastal boundary, extending along that line across the states’ territorial seas. Seeking an “equitable solution,” the Court voted ten-to-four that the border takes a slight northern turn at the start of the exclusive economic zone, extending Kenya’s waters. The Court voted nine-to-five that the second line extends to “the outer limits of the continental shelf or the area where the rights of Third States may be affected.”
The Court unanimously rejected Somalia’s allegations that Kenya’s exploration violated international law. The Court declined to find that Kenya violated Somalia’s sovereignty, given there was no evidence of bad faith. The Court further declined to find that Kenya violated UNCLOS, given there was no evidence that Kenya’s activity caused “permanent physical change” to the disputed area.
2. Preliminary Judgment
Following public hearings conducted in September 2020, on February 3, 2021, the Court near-unanimously rejected the United States’ five preliminary objections to jurisdiction and admissibility regarding Iran’s 2018 application in Iran v. United States. The case concerns the United States’ 2018 reimposition of sanctions against Iran, which were waived or lifted in 2016, following the Joint Comprehensive Plan of Action on Iran’s nuclear program.
3. Oral Arguments
In 2021, the ICJ heard oral arguments in two additional ongoing cases. In April, the Court heard argument and court-appointed expert testimony on reparations in Democratic Republic of the Congo v. Uganda. In 2005, the ICJ found that Uganda’s invasion of the Congo violated a litany of international laws and principles, and that the DRC’s attacks on the Ugandan embassy violated the Vienna Convention on Diplomatic Relations. The Court dispatched the states to negotiate reparations. In 2015, the DRC asked the Court to determine reparations, reporting unsuccessful negotiations. In October 2020, the Court appointed four independent experts to monetize the loss of human life and natural resources, and property damage.
In September, the ICJ heard two weeks of oral arguments in Nicaragua v. Colombia. Nicaragua and Colombia came to the ICJ for resolution of disputes stemming from shared maritime boundaries.
4. New Cases
One dispute technically instituted by a 2016 Special Agreement was formally docketed in 2021, in Gabon/Equatorial Guinea. On March 5, 2021, Guinea notified the Special Agreement to the ICJ Registrar. Gabon and Guinea now ask the Court to determine whether certain titles, treaties and conventions have the force of law as applied to certain maritime disputes. Briefing is scheduled to finish in 2022.
One new contentious case was filed in 2021. On September 16, Armenia instituted proceedings against Azerbaijan, alleging violations of the International Convention on the Elimination of All Forms of Racial Discrimination, and requesting provisional measures. Azerbaijan instituted cross-proceedings against Armenia, alleging violations of the same Convention and requesting provisional measures. The filings stem from a 2020 war between the states animated by ethnic conflict over a disputed region containing Armenian heritage sites, which was recently returned to Azerbaijan’s control after decades in Armenian control.
In October 2021, the Court held public hearings on provisional measures. Armenia’s requested provisional measures include protection and release of Armenian prisoners of war who were captured in 2020; preservation and protection of Armenian heritage sites now in Azerbaijani territory; preservation of all evidence related to alleged hate crimes by Azerbaijani against Armenians; and ongoing reports from Azerbaijan to the ICJ for accountability to these matters until the Court rules on the merits. In turn, Azerbaijan called for Armenia to identify remaining landmines in Azerbaijan; cease facilitating any further landmines in Azerbaijan territory; prevent race-based violence and hate speech coming from Armenia toward Azerbaijanis—especially “on Twitter and other social media and traditional media channels;” collect and preserve any known evidence of “ethnically-motivated crimes against Azerbaijanis;” refrain from any further aggravation; and report regularly to the ICJ until a final decision is rendered. Armenia requested that the Court “reject Azerbaijan’s requests for the indication of provisional measures in full.” The Court will deliver its provisional measures decision at a yet-announced public sitting.
D. International Human Rights Courts & Tribunals
2021 marked a year of many noteworthy case developments by international human rights courts and tribunals, including the European Court of Human Rights (ECHR), the African Court on Human and People’s Rights (AfCHPR), and the Inter-American Court on Human Rights (IACHR).
1. The ECHR
The ECHR issued many notable decisions in 2021. In January, the ECHR ruled in Georgia v. Russia (II) that Russia had violated Articles 2-1 & 2 of Protocol No. 4, Articles 3, 5, Article 2 of Protocol No. 1, Article 38, and Article 41 of the European Convention of Human Rights (“Convention”) during and after its conflict with the Republic of Georgia in which Russia used indiscriminate and disproportionate force, injuring, killing, and detaining hundreds of civilians.
In Hanan v. Germany, the applicant complained under Article 2 of the Convention that Germany failed to properly investigate a German airstrike in Afghanistan that killed civilians, including the applicant’s two sons. The ECHR found Germany did not violate Article 2 of the Convention, saying that the investigation was sufficient and subject to public scrutiny.
In Vavřička v. the Czech Republic, the ECHR found that the Czech Republic did not violate Article 8-1 of the Convention, which provides for a right to respect for private life, by fining a parent and excluding their children from preschool for failing to comply with the requirement to vaccinate their children. The ECHR concluded that the vaccine requirement was proportionate and “necessary in a democratic society.”
In Centrum för Rättvisar v. Sweden, the European Court of Human Rights (ECHR) found that Swedish intelligence services violated Article 8 of the Convention through the bulk interception of private communication in efforts to prevent and intercept crimes before they occur, rather than investigating crimes that had already taken place. The ECHR concluded that interception must be necessary and targeted, and that bulk collection of communication may only be permissible with proper safeguards.
The same issues of bulk interception were addressed in Big Brother Watch v. United Kingdom, with the court ruling that electronic selectors could have been used to filter out news organizations and thereby protect the principle of journalistic freedom of expression.
2. The AfCHPR
The African Court on Human and Peoples' Rights (AfCHPR) also issued notable decisions in 2021. After the AfCHPR reported a loss of members in 2020, the Democratic Republic of Congo took a step toward joining the Court by ratifying the protocol that established the AfCHPR.
In Makame v. Tanzania, the applicants argued that because there was only one level of appeal to review the decision of the lower court, their rights were violated under Articles 3 and 7 of the African Charter on Human and Peoples’ Rights (“Charter”), which provide the Right to Equality before the Law, Equal Protection of the Law and the Right to Fair Trial, respectively, were violated. The AfCHPR determined that while those articles provide a right to a review at an appellate level, they do not specify a minimum number of levels; therefore, one level of review was sufficient.
In Rajabu v. Tanzania, the AfCHPR determined that the applicant, who was accused of raping a minor, was denied his right to free counsel in violation of Article 7(1)(c) of the Charter because it was a serious crime that, if convicted, carried a long sentence. The AfCHPR found similarly in Onesmo v. Tanzania and Benyoma v. Tanzania.
In Juma v. Tanzania, the AfCHPR found that the mandatory imposition of the death penalty under Tanzanian law violated the right to life for the applicant, who was on death row after being convicted of murdering two people. The AfCHPR declined to overturn the application’s conviction but awarded him 4,000,000 Tanzanian shillings for this violation and for the nearly five-year delay from his arrest to trial.
3. The IACHR
The IACHR issued several decisions in 2021. In Habbal v. Argentina, the applicant renounced her original Syrian citizenship to become a naturalized Argentine citizen, but the Argentinian government retroactively invalidated her Argentinian citizenship, which was viewed as discrimination against her Middle Eastern origins. The IACHR ruled that Argentina violated the applicant’s right to due process by failing to give proper notice of the proceeding and violated her right to a presumption of innocence by treating her as an immigrant rather than as a citizen during the proceeding. Further, Argentina did not take into consideration her rights as a possible stateless person, given that she had renounced her Syrian citizenship.
In Zaván v. Paraguay, a journalist was killed in the course of pursuing his professional activities by non-state actors. The IACHR recognized that journalism is an important manifestation of freedom of expression and information and concluded that Paraguay was intentionally responsible for the journalist’s death by failing in its duty of prevention and protection and failing to guarantee his right to freedom of expression.
In Pessolani v. Paraguay, the IACHR determined that a criminal prosecutor investigating corruption was removed from his position without the proper guarantees under the law as a mean of retribution because the law used to punish him was “vague and ambiguous,” that the decision to remove him was not based on clear and specific evidence, and that all of this violated the applicant’s right to “the principle of legality andto freedom of expression.”
In Active Memory Civil Association v. Argentina, the IACHR determined Argentina breached its duty to protect life and personal integrity, pursuant to Articles 4(1) and 5(1) of the American Convention of Human Rights, by not taking adequate measures to protect a vulnerable Jewish group in a 1994 terrorist attack against the Asociación Mutual Israelita Argentina.
In Baidal v. Ecuador, the IACHR determined that Ecuador violated its duties of righties of to life, judicial guarantees, and judicial protection, under Articles 4 and 25 of American Convention of Human Rights, by prosecuting a police officer for extrajudicial killings before a police criminal court rather than before an impartial, ordinary jurisdiction.
In Fuentes v. Peru, the IACHR determined that Peru failed to protect the applicant’s right to privacy and the principles of equality and non-discrimination by not protecting him from being reprimanded by the Dulces y Salados cafeteria of the Santa Isabel Supermarket in San Miguel when he and his homosexual partner were showing public affection and four security agents approached them and asked them to modify their behavior because kids were playing nearby, despite a heterosexual couple doing the same without reprimand.
In Ungaretti v. Ecuador, the IACHR found that Ecuador violated the applicant’s right to the freedom of expression by failing to protect him from reprisal after he became a whistleblower against the Ecuadorian Armed Forces.
II. National Courts
A. Developments in French Criminal Law
This section discusses important recent developments in the field of white-collar enforcement in France. Three developments stand out. First, the goal of aligning the French anti-corruption framework with the best European and international standards led to an evaluation of the Sapin II law by French Members of Parliament, five years after its enactment. The Report, published on July 7, 2021, proposes several ways to improve the legal framework. Second, a new offense of ecocide has strengthened the protection of the environment. Finally, the French Supreme Court issued a landmark decision on corporate criminal responsibility for crimes against humanity.
1. Improving France’s Anti-Corruption Framework
On July 7, 2021, French Members of Parliament, Raphaël Gauvain and Olivier Marleix, published a Report evaluating the Sapin II Law. While their overall review was positive, they recommended fifty amendments to improve it. The Report notes that the French Anti-Corruption Agency (AFA) fulfilled its mission of control and sanction, but to the detriment of its coordination mission. The Report thus suggests a special committee for the fight against corruption, and the redirection of the AFA’s focus to administrative coordination. The AFA’s control and sanctions missions would then be transferred to the already existing High Authority for the Transparency of Public Life (HATVP).
The Report also focuses on ways to encourage the use of the Judicial Public Interest Agreement (CJIP) by granting more safeguards to those involved and improving the status of whistleblowers as difficulties persist both in the quality of their treatment and in their protection against retaliation. The Report will form the basis of a draft bill to be submitted to the National Assembly in November 2021.
2. The New Ecocide Offense
The Climate and Resilience Act was enacted on August 22, 2021. It strengthens the enforcement of environmental crimes, notably by introducing the ecocide offense, which reinforces the risk for companies that pollute.
The Climate and Resilience Act defines ecocide as aggravating the general offense of environmental pollution when the acts are deliberately committed, i.e., when the offense of air and water pollution or soil pollution of the environmental code, was not accidental but intentional. It is punishable by ten years’ imprisonment and a fine of 4.5 million euros or of an amount corresponding to ten times the benefit derived from the commission of the offense.
3. The Lafarge Case
In the Lafarge, a French company, was indicted for involvement in alleged offenses committed by its Syrian subsidiary, in connection with payments made to the so-called Islamic State and other armed groups in Syria between 2012 and 2014. The issue before the French Supreme Court (Cour de Cassation) was the legal validity of this indictment.
On September 7, 2021, the Cour de Cassation held that “one can be an accomplice to crimes against humanity even though there is no intention of associating oneself with the commission of these crimes.” The Court held that it is sufficient to have had knowledge of the preparation or commission of these acts and to have facilitated them through aid or assistance. There is no requirement that the actor be part of the criminal organization or have participated in the conception or execution of the criminal plan. In the Lafarge case, the defendant’s informed payment of several millions of dollars to an organization whose purpose was to commit crimes against humanity was found sufficient to constitute complicity.
In addition, the Court clarified the rules on the admissibility of NGOs in cases concerning crimes against humanity and terrorism financing. It held that only the European Center for Constitutional and Human Rights (ECCHR) was admissible as a civil party with respect to the offense of complicity in crimes against humanity, because ECCHR was the only association that included such purposes when it was created. By contrast, the Court found that that none of the NGOs were admissible as a civil party for the offense of financing of terrorism because the facts alleged were not likely to have caused direct damage to any members of the NGOs. Finally, the Supreme Court confirmed Lafarge’s indictment for the financing of terrorism.
B. Developments in U.S. Criminal Law
1. United States v. Van Buren
The Computer Fraud and Abuse Act of 1986 (CFAA) was enacted to give both federal prosecutors and private victims the right to seek relief from outside hackers and inside employees who abuse a victim’s computers for unauthorized or illegal purposes. Like the federal Racketeer Influenced and Corrupt Organizations Act (RICO) statute, the CFAA includes criminal and civil liability for the described offenses. A defendant can be liable under CFAA in two ways: first, when an individual “accesses a computer without authorization,” like an outside hacker, and second, when an individual “exceeds authorization” and then obtains information he is “not entitled to so obtain,” like an inside employee. In its 2021 decision in Van Buren v. United States, the U.S. Supreme Court revised the scope of this second means of liability; that is, of an insider who “exceeds” his authorized access to a computer. No particular political agenda can be discerned from the identity of the justices joining the opinions; Justice Barrett wrote the majority opinion for six justices, and Justice Thomas wrote the dissent for the other three.
Nathan Van Buren, a former Georgia police sergeant, had authorized access to a law enforcement database that stored information including license plate numbers and registered owners of vehicles. Department policy allowed him to retrieve license-plate information only for law enforcement purposes. An FBI informant offered him $5,000 for information about a woman the informant had met at a strip club. Van Buren agreed to use his patrol car’s computer to access the law enforcement database to find the license plate number of the woman. No party suggested that Van Buren had any law enforcement purpose. He was convicted by a jury for violations of the CFAA, which was affirmed by the U.S. Court of Appeals for the Eleventh Circuit. In its six-to-three decision, the Supreme Court reversed Van Buren’s conviction under the CFAA.
The majority opinion assessed the interplay between the “without authorization” and “exceeds authorized access” clauses of infraction in section (a)(2) of the CFAA. The Court observed that these clauses specify two distinct ways of unlawfully obtaining information. Whereas the first clause, “without authorization,” protects computers from targeting by outside hackers, the second clause, “exceeds authorized access,” covers those who access a computer with permission and then exceed the parameters of the authorization by entering an area of the computer to which such authorization does not extend. Both clauses, according to the majority, stem from a “gates-up-or-down inquiry: one either can or cannot access a computer system, and one either can or cannot access certain areas within the system.” Because Van Buren had authorized access to the database as well as the registration information on it, he could not be in violation of the CFAA Section (a)(2). The majority disregarded the fact that Van Buren had been offered a loan (or bribe) to retrieve the information for a non-law enforcement purpose.
The three dissenting justices, including Chief Justice Roberts, took a straightforward approach, recognizing that Van Buren only had permission to retrieve license-plate information from the database for law enforcement purposes. The justices concluded that he disregarded this limitation when, in exchange for several thousand dollars, he used the database in an attempt to unmask a potential undercover police officer. In short, Van Buren’s conduct was legal only if he was entitled to obtain that specific license-plate information by using his authorized access, which he was not.
Policy considerations were not irrelevant in this case. If Van Buren’s conviction were affirmed, what, for example, would limit the government from criminalizing any use by an employee of a work computer for personal purposes? Would the CFAA proscribe use of a work computer for embellishing an online-dating profile or for use of a pseudonym on Facebook? Indeed, the U.S. Department of Justice’s written policy on prosecutions of this kind is rather vague.
The Van Buren decision on the scope of criminal prosecutions and private civil suits raises more questions than it answers. The CFAA remains a robust statute for prosecuting or suing outside hackers who have penetrated and abused the victim’s computer database. But it is now far more difficult to bring a criminal prosecution against those insiders, such as employees, who have used their employer’s database for personal use and purposes that run afoul of the employer’s policies.
Moreover, it is not clear whether any basis remains for a private employer to sue such an employee in a civil action under CFAA. Section 1030(g) gives rise to civil liability where the private plaintiff suffers “loss” or “damage.” According to the majority’s rationale, those terms are “ill fitted” to remediating “misuse” of sensitive information that employees may permissibly access using their computers. If private employers or corporations want specific files or categories of information protected from most of their employees, they likely must take stronger measures to prevent widespread and unfettered access to that computer data by all employees. Employers cannot rely on their corporate or internal policies to enforce violations by employees of those policies under the CFAA. The reach of this decision is relevant to international as well as domestic firms within U.S. jurisdiction.
2. U.S. Supreme Court State Secrets Cases
The 2021 term of the Supreme Court of the United States features two cases from the U.S. Court of Appeals for the Ninth Circuit that implicate the common law evidentiary state secrets privilege. United States v. Husayn et al. involves a foreign national who, at the time of writing, remains in custody at the U.S. Naval Station Guantanamo Bay, and questions whether a court, on its own assessment, can reject a Government’s otherwise proper invocation of the State Secret privilege. The second case, Federal Bureau of Investigations v. Fazaga, tests the Ninth Circuit’s holding that the Foreign Intelligence Surveillance Act (FISA) displaces the state secrets privilege dismissal procedure and authorizes a district court to examine, in camera and ex parte, evidence subject to the privilege to determine the merits of a lawsuit.
a. United States v. Abu Zubaydah
Abu Zubaydah was captured in March 2002 in Pakistan and suspected of being a high-value terrorist target, a claim later contradicted by a U.S. Senate report. Abu Zubaydah was labeled an “enemy combatant” and underwent “enhanced interrogation techniques” (EITs) while detained at a secret Central Intelligence Agency (CIA) facility in Poland.
In 2010, Abu Zubaydah filed a criminal complaint in Poland “seeking to hold Polish officials accountable for their complicity in his unlawful detention and torture.” This investigation closed with no prosecutions, prompting Abu Zubaydah to seek relief from the ECHR. In 2015, the ECHR found, beyond a reasonable doubt, that Abu Zubaydah had been detained and tortured in Poland and that Poland had failed to meet its obligations under the European Convention on Human Rights.
Following the ECHR decision, Polish prosecutors reinitiated their investigation, “focusing on the culpability of Polish citizens and government officials in Abu Zubaydah’s detention.” In furtherance of this renewed investigation, Poland attempted to obtain information from the United States through the Mutual Legal Assistance Treaty (MLAT) framework, but the United States denied such assistance. Thereafter, Abu Zubaydah’s counsel filed an application under 26 U.S.C. § 1782 to compel the US to turn over testimony related to the EIT program for use in the Polish investigation. The US moved to quash the subpoenas, asserting the state secrets privilege. The District Court granted the Government’s motion; however, the Ninth Circuit reversed and remanded, holding that information related to the CIA site in Poland, the interrogation techniques and conditions of the facility, and the treatment of Abu Zubaydah in the facility were not state secrets.
The U.S. Supreme Court heard argument in this matter on October 6, 2021, on the question of whether the Ninth Circuit erred in rejecting the Government’s claim of state secrets based on its own assessment. Justices pressed the then-Acting Solicitor General on whether the Government would be willing to produce Abu Zubaydah to testify in the matter, potentially rendering the case before the high court moot; however, the government counsel was unable to confirm whether the government would produce Abu Zubaydah. Abu Zubaydah’s testimony could render the matter moot, as he could testify as to his recollection of the events, treatment, and conditions without compelling disclosure from the Government or third party witnesses.
b. FBI v. Fazaga
In 2011, three Muslim residents of Southern California brought suit alleging the Federal Bureau of Investigation (FBI) unlawfully gathered information against members of the Muslim community through use of a confidential informant (CI). The FBI made clear to the CI that they were only concerned with information relating to Muslims, and their desire was to “get as many files on [the] community as possible.” Information regarding non-Muslims was “set aside.”
Procedurally, the respondents first sought to certify a class naming the Government and both official and unofficial-capacity defendants, including individual FBI agents. The initial complaint named eleven causes of action alleging violations of their privacy and freedom rights, including constitutional law claims and claims under FISA. Relevant to the matter before the U.S. Supreme Court, the District Court dismissed several claims against the Government pursuant to qualified immunity, and all other claims against the Government pursuant to the state secrets privilege; the only claims to survive the District Court’s dismissal were those against the individual agents.
The Ninth Circuit reversed and remanded (in part), holding that FISA “displaced the common law dismissal remedy created by the Reynolds state secrets privilege as applied to electronic surveillance within FISA’s purview.” Further, the Ninth Circuit found that the District Court was obligated to pursue the FISA dismissal procedure and conduct an in camera and ex parte review of the evidence subject to the Government’s assertion of the state secrets privilege as the claim itself challenges the legitimacy of the electronic surveillance “under FISA, the Constitution, or any other law.” The U.S. Supreme Court heard argument in the case on November 8, 2021.
3. Protecting Privilege in Internal Investigations
The past year has seen significant developments on the treatment of the attorney-client privilege and attorney work product protection during internal investigations. Firms advising international, as well as domestic, clients should take note. A notable case is Attorney General v. Facebook, Inc., in which the Massachusetts Supreme Judicial Court affirmed and reversed in part a trial court decision that had ordered the production of various materials created in connection with a Facebook, Inc. internal investigation.
In 2018, Facebook hired a law firm to conduct an internal investigation after allegations that various third-party applications had misused Facebook user data, including in connection with the now highly publicized transfer of data to Cambridge Analytica (the “app developer investigation”). Later that year, the Massachusetts Attorney General (the MAG) opened an investigation surrounding the issue and served civil investigative demands. Facebook declined to produce certain materials sought by the demands, arguing that they were covered by the attorney-client privilege and attorney work product doctrines.
In 2020, a trial court judge largely granted the MAG’s petition to compel production of the materials. That court found that the work product doctrine did not protect the investigation materials from disclosure because the app developer investigation was a continuation of Facebook’s ongoing app enforcement program, rather than having been done in anticipation of litigation. It further found that the attorney-client privilege did not apply to most of the information because the information was factual in nature, and Facebook had “touted” the investigation in public and therefore could not claim privilege.
The Massachusetts Supreme Court affirmed the decision with respect to the attorney-client privilege, but reversed aspects relating to the work product doctrine. With respect to privilege, the court emphasized “distinctions between attorney-client communications and underlying facts,” noting that the “privilege only protects communications between the attorney and the client . . . not the facts themselves.” Accordingly, the court determined that the bulk of the requests did not implicate privileged material, because they “do not require the production of any communications between Facebook and counsel.” Rather, the court determined that factual information such as the identity of the apps at issue, even if that information was learned as a result of an internal investigation, was not protected from disclosure.
With respect to the work product doctrine, the court disagreed with the trial court and found that the app developer investigation was conducted in anticipation of litigation. The court made clear that “simply funneling an organization’s investigation through outside counsel does not bring it within the protection of the work product doctrine if the organization would have conducted these activities irrespective of anticipated litigation.” Nonetheless, the court concluded that the app developer investigation was “not business as usual for Facebook” and was “meaningfully distinct from Facebook’s ongoing enforcement program.” The court then considered whether the materials constituted fact or opinion work product, rejected the trial court’s conclusion that none of the pertinent materials constituted opinion work product, and remanded to the trial court for further consideration after clarifying the standard.
While just one case, the Facebook litigation crystallizes emerging trends in courts’ treatment of privilege and work product. Courts are increasingly skeptical of claims that investigations are conducted “in anticipation of litigation,” rather than for other purposes. If a court determines that an investigation was not in anticipation of litigation, then the protections of the work product doctrine may not attach, even if lawyers conducted key aspects of the investigation. Moreover, while jurisdictions vary with respect to the test for determining whether an investigation was conducted in anticipation of litigation, the parties involved may not have complete certainty concerning where any future litigation will take place at the time an investigation is conducted, and so it is worthwhile to be mindful of different jurisdictions’ standards.
