Recent coverage by the NRC Handelsblad reveals that the Netherlands supplies spare parts for Israel's F35s – a type of combat aircraft. Despite warnings from legal advisers that through this supply the Netherlands would facilitate war crimes committed by Israel, the deliveries are ongoing.
In this blog post, I answer the question whether the cabinet, in particular the most involved ministers, namely Rutte (general affairs), Bruins Slot (foreign affairs), and Schreinemacher (foreign trade), are complicit under Dutch criminal law in war crimes committed - and yet to be committed - by Israel.
On 18 May 2023, the U.S. Supreme Court dismissed claims that Facebook, Twitter, and Google knowingly assisted an ISIS attack on the Reina nightclub in Istanbul, Turkey in 2017. In the case Twitter, Inc v. Taamneh, the Court determined that the companies “at most allegedly stood back and watched” when they failed to remove content and stop ISIS from using their services. But did the Court mischaracterize the companies’ alleged assistance as omissions?
In recent proceedings in Paris and New York, Lafarge SA, a French corporation, faced allegations surrounding its dealings with terrorist groups ISIL and Al-Nusra Front during the Syrian civil war. The similarities between the French and U.S. cases, along with shared defendants and charges, raise questions concerning ne bis in idem and double jeopardy. This blog post explores whether the concluded U.S. Settlement could impact the ongoing French proceedings.
In the first-ever U.S. prosecution of its kind, the Lafarge corporation and its subsidiary, Lafarge Cement Syria, were sentenced to $778 million in financial penalties for providing material support to terrorist organizations. This post reviews the fine and asset forfeiture components of the Lafarge Settlement and considers the broader significance of the Settlement for the victims of terrorism while discussing proposals for Congress to establish a permanent U.S. Fund for Victims of Designated Terrorist Organizations that would distribute corporate financial penalties to victims.
Uncertainty continues as to whether China is selling weapons to Russia for use in the Ukraine war. After President Xi Jinping’s visit to his Russian counterpart Vladimir Putin in March 2023, leaked US intelligence documents showed China had approved the provision of weapons to Russia disguised as civilian items. This was met with a clear statement from China’s foreign minister that “China will not provide weapons to relevant parties of the conflict”. Meanwhile, the Chinese Defense Minister paid a visit to Russian military officials, while Ukraine said it was increasingly finding Chinese weapon components on the battlefield.
With the recent arrest warrants against Putin and Lvova-Belova, the ICC has shown that it is properly and energetically tackling the investigation and prosecution of war crimes in Ukraine. In the past year, there has also been a lot of discussion about whether a new special international tribunal for the crime of aggression should be set up in addition to the prosecution of war crimes at the ICC. In this follow-up blog, I discuss both developments.
In the ongoing civil suits between Mexico and US gun manufacturers like Smith & Wesson and Diamondback Shooting Sports Inc., the Mexican government is pursuing claims for damages linked to cartel violence. A recent development saw the dismissal of the Smith & Wesson lawsuit by a US district court judge, which Mexico plans to appeal. This litigation is pioneering in that it seeks to clarify legal standards for holding business enterprises responsible for facilitating severe harm in a transnational setting.
Amid the Ukraine conflict, allegations have been made against foreign businesses for providing various types of direct or indirect support for Russia’s military attacks. Recently, on November 15, 2022, companies were sanctioned by the US for supplying Iran-made drones used in Russia's devastating strikes on Ukrainian civilian infrastructure. In the current circumstances of the war in Ukraine, the provision of military assistance to Russia probably violates international law. Could it also be a basis to hold individuals criminally responsible? Might investigations deter others from supporting Russia? And would such prosecutions even be a good idea?
Göran Sluiter has represented witnesses in the Ruto case at the ICC.
*This post was originally published on the EJIL:Talk! Blog on 17 October 2022, available at: https://www.ejiltalk.org/why-the-iccs-termination-of-proceedings-against-deceased-kenyan-defendant-paul-gicheru-should-not-be-the-end-of-the-matter/
On 26 September 2022, an ICC defendant, Mr Paul Gicheru, died in Kenya at the age of 52, prompting the New York Times, Radio France Internationale and Voice of America to report on the suspicious circumstances surrounding his sudden demise. Mr Gicheru passed away at home after visiting a restaurant, while his son, with him in the restaurant, suffered abdominal pains. Further investigations are needed, but it cannot be excluded that Mr Gicheru was murdered, for example by poisoning. Indeed, Mr Gicheru’s lawyer in the ICC proceedings, Michael G Karnavas, suspects foul play, calling on the Kenyan authorities and the ICC to open a full investigation: ‘It’s somewhat odd that after the election in Kenya, and before the court issues its judgment, there is this incident,’ he said, commenting that this ‘warrants the ICC stepping up to the plate.’
On 16 September, NRC newspaper published the article: “How the Netherlands facilitate the most hated websites in the world”. The article, written by Carola Houtekamer and Rik Wassens, describes how internet hosting services based in the Netherlands provide services to the extremist, far-right website 8kun. The journalists’ finding that Dutch companies ‘facilitate’ the website raises an interesting question. If 8kun is being used to commit or support crimes, could persons or companies be liable under Dutch criminal law for providing services that ‘facilitate’ the website?
On 24 February 2021, a German court in Koblenz sentenced Eyad Al-Gharib, a Syrian national, to four and a half years in prison for aiding crimes of torture and aggravated deprivation of liberty in Syria. The case was prosecuted in Germany under universal jurisdiction. In convicting Al-Gharib, the Koblenz court relied on definitions of crimes against humanity that reflect those found in the ICC Statute. However, the court relied on a domestic mode of liability to connect Al-Gharib to these crimes. In this blog, we consider whether the use of domestic modes of liability in universal jurisdiction cases is consistent with the principle of legality.
Despite increasing calls by shareholders to exit Russia after its brutal and unprovoked attack against Ukraine, the French energy company TotalEnergies has opted not to entirely abandon its dealing there. Reacting to TotalEnergies’s decision, NGOs Greenpeace France and Amis de la Terre have alleged that the company’s continued involvement “contributes, at least financially, to Russian aggression in Ukraine”, noted that the company and its managers might face criminal liability for facilitating war crimes and crimes against humanity, and highlighted the company's legal obligation not to contribute to human rights violations. In response, TotalEnergies claimed is acting in a responsible manner and that it will take new steps in light of the worsening conflict. However, it appears that TotalEnergies will continue to do business in Russia, at least for now. This blogpost contemplates whether TotalEnergies’s continued business dealings in Russia contribute to Russia’s ability to wage an illegal war, and if so, whether there are any legal consequences.
At last year’s UvA roundtable discussion with Philippe Sands, and a subsequent Rethinking SLIC Panel Discussion on Ecocide with Kate Mackintosh, we presented our views about the scope of liability for acts of ecocide in response to the Stop Ecocide Foundation Independent Expert Panel’s (IEP) proposal for the legal definition of ecocide. Some reflections from our discussions on ecocide are set out in this blog.
There can be no doubt that the recent Russian aggression towards Ukraine amounts to one of the most important allegations of international crimes since the creation of the International Criminal Court (ICC). For at least three reasons, the role of the ICC in relation to Putin’s and Russia’s commission of core crimes on Ukrainian territory has thus far been disappointing, and sadly appears indicative of the Court’s increasing irrelevance.
Since at least 2017, Myanmar has come under increased scrutiny for the actions of its military (the Tatmadaw) against ethnic minorities in its northern provinces and in Rakhine. While the Burmese government has argued its actions are in response to threats by militant groups, many have characterised them as international crimes.
It is both realistic and legally possible for the Independent Investigative Mechanism for Myanmar (‘IIMM’) and the ICC to ensure that allegations of corporate complicity feature in the future accountability landscape for Myanmar under international criminal law. The individual complicity of corporate CEOs falls within the terms of reference of the IIMM and the material jurisdiction of the ICC. Customary international law standards of aiding and abetting, and Article 25 of the Rome Statute provide a legal basis for the accomplice liability of such individuals.