International Justice Day Round-Up II: Bemba, the Crime of Aggression, and More Justice for Chile

This is Part II of an International Justice Day Top-10 Round Up.  Part I—which discussed the recent judgment against Hissène Habré in the Extraordinary African Chambers, the consequences (vel non) of recent travel of President Al-Bashir to ICC States Parties, and the Open Society Justice Initiative’s finding that crimes against humanity have been committed in Mexico—is here.

4. Jean-Pierre Bemba Convicted: On March 21, 2016, the International Criminal Court (ICC) convicted former militia head Jean-Pierre Bemba of war crimes and crimes against humanity, namely pillage and sexual violence, in the Central African Republic for events transpiring in 2002-3. In June, Bemba was sentenced to 18 years’ imprisonment (subject to appeal); the Court is now considering potential reparations. Points of significance:

• This is the first ICC judgment devoted to adjudicating the international criminal law relevant to sexual violence. My colleague Daryn Reicherter of the Stanford Medical School’s Department of Psychiatry and Behavioral Science testified during the sentencing phase about the long-term impact of mass rape on victims, their families, and their communities. His expert report was produced by the Stanford Human Rights in Trauma Mental Health Laboratory of which I am co-founder.
• The case is also significant in that it offers the first comprehensive analysis by the ICC of the doctrine of superior responsibility, as elaborated on these pages by Alex Whiting.
• Bemba is involved in a second set of proceedings alleging his involvement with others (including his defense counsel) in committing offences against the administration of justice (in breach of Article 70 of the ICC Statute)—namely efforts to corruptly influence witnesses. Evidence in this case includes records from Western Union as well as telephone intercepts provided by European countries pursuant to requests for assistance (RFA) from the ICC. In pursuing these charges, the ICC considered the right to privacy as an international human right and concluded that no violation occurred because the intercepts were made “in accordance with the law” as required by Article 8(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Following closing statements at the end of May/early June, the Article 70 case was put to the judges.

5. The Aggression Amendments Poised to Enter into Force: The amendments adding the crime of aggression to the subject matter of the International Criminal Court (ICC) have achieved the necessary 30 ratifications to enter into force. 

• On June 26, 2016, Palestine lodged the 30^th ratification of the aggression amendments with the Secretary-General of the United Nations, the official depository for the ICC (other ratifications and statements of commitment to ratify are here). Palestine’s move follows on the heels of its ratification of a whole host of other treaties—including the ICC Statute on January 2, 2015—as detailed by Fionnuala ní Aoláin here.
• In other developments, Kenya has become the first state to avail itself of the opt out clause of the aggression amendments. (Although its declaration was filed last year, it has only just now come to light; Kenya has not yet ratified the amendments themselves). That clause reads:

The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.

• Since its re-engagement with the ICC in 2009, the United States (among other states) has been skeptical of the aggression amendments (its current policy is set forth here, as announced by Undersecretary Sarah Sewell at the American Society of International Law’s 2015 Annual Meeting). Some human rights organizations are concerned that adding the crime of aggression will undermine the Court’s ability to address the atrocity crimes, although the amendments enjoy support amongst other elements of civil society.
• With Palestine’s move, the earliest the amendments can become actionable is in June 2017, one year after the 30^th ratification, although states parties have not yet decided upon the modality or venue for rendering the necessary “decision” to bring them into force. The only guidance offered by the amendment text is that:

The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.

• Nor have states parties reached consensus on the circumstances under which the Court will be able to exercise jurisdiction once this decision has been formally made because states parties are not in agreement as to how to interpret Article 121(5), which governs the aggression amendments.

6. Jara v. Barrientos Nuñez and Justice in Chile: A U.S. jury recently returned a verdict in a case litigated by the Center for Justice & Accountability on behalf of the family of Chilean singer and activist Victor Jara, winning a $28 million judgment against Chilean army officer Pedro Pablo Barrientos Nuñez, a U.S. citizen by virtue of his marriage to a U.S. citizen. The complaint—filed almost 40 years after Jara was arrested following the September 11, 1973, coup that brought Augusto Pinochet to power—originally included allegations of torture and extrajudicial killing, crimes against humanity, and cruel, inhuman and degrading treatment. (When his wife identified Jara’s body, his stomach had been slashed open, his wrists and neck broken, and he was riddled with bullets). The suit was able to go forward, because a number of conscripts offered evidence and testimony against their former superior. Indeed, even Barrientos’ ex-wife identified many of his former colleagues during the investigation. Some items of note:

• The district court in Florida dismissed Plaintiffs’ Alien Tort Statute (ATS) claims under Kiobel v. Royal Dutch Petroleum Co., 133 S.C. 1659 (2013), reasoning that defendant’s naturalized citizenship was insufficient to overcome the presumption against extraterritoriality encumbering the ATS given that all of the key events happened in Chile. Accordingly, the case went forward on the torture and extrajudicial killing claims brought under the Torture Victim Protection Act, which applies to extraterritorial events by its own terms. Although the court initially granted a default judgment, the defendant later chose to defend; the default judgment was lifted without objection, resulting in a contested trial. Although plaintiffs prevailed at trial, they are appealing the Kiobel Plaintiffs’ appeals brief is due July 29, 2016.
• Barrientos—along with a number of co-conspirators—faces murder charges in Chile in connection with Jara’s death. The Chilean government is preparing an updated extradition request following a request from the United States for additional information. The Florida civil judgement will no doubt help establish the factual predicate for his denaturalization and extradition, as happened with respect to two Salvadoran Ministers of Defense successfully sued under the Alien Tort Statute in the early 2000s (by yours truly and CJA) and eventually deported to El Salvador. (In the Vides Casanova case, the Board of Immigration Appeals set an important precedent that an individual who exercises command responsibility over human rights abuses is deportable because such conduct amounts to “participation” in abuses as required by the deportation statute (my analysis is here)).
• This is the third case arising out of Cold War repression in Chile in the United States. An earlier case by CJA against Armando Fernandez Larios, another former Chilean officer living in Florida, resulted in a $4M damage award for the family of economist Winston Cabello. Larios was involved in the so-called Caravan of Death, which was launched immediately after the coup to round-up and eliminate supporters of Salvador Allende. The suit against Larios was the first Alien Tort Statute case to recognize the justiciability of crimes against humanity as an international tort. An additional suit involving Chile was filed in connection with the 1976 assassination in Washington D.C. of former Chilean Ambassador to the United States, Orlando Letelier, against U.S. citizen Michael Townley, reputedly a member of the Chilean secret police, the DINA—often called the first foreign terrorist attack on U.S. soil. Intelligence declassified by the Obama Administration as part of its “declassification diplomacy” confirmed that Pinochet ordered the assassination. Chile has sought the extradition of these individuals in connection with another political assassination.
• According to the Chilean truth commission, over 3,000 people were killed and another 1000 disappeared during Pinochet’s 1973-1990 rule. The government has acknowledged another 10K victims were killed, tortured, or imprisoned for political reasons.  Domestic criminal trials are proceeding in Chile – upwards of 700 individuals face charges; another 70 have already been imprisoned.  Indeed, last week Chilean authorities arrested retired General Juan Emilio Cheyre for his involvement in the Caravan of Death.