THE HAGUE

The Prosecutor of the International Criminal Court (ICC) has published its annual report on Preliminary Examination Activities. 

“The report details the preliminary examination activities carried out by the Office of the Prosecutor during the period 6 December 2019 – 14 December 2020, in relation to ten situations under preliminary examination,” said the ICC in a press release Monday. 

The countries under review this year included Uganda, Australia, Madagascar, Canada/Lebanon and Tajikistan/China.

ICC prosecutor Fatou Bensouda, whose term of office will expire this year, announced that the preliminary investigations of Ukraine, Britain, Nigeria and Palestine had been completed in 2020, and that the investigations on Colombia, Guinea and the Philippines continue.  

No investigation on Uighur deportation allegations

In the report, the Prosecutor’s Office said it would not investigate top-level Chinese officials because “alleged acts of deportation” — which were among other allegations of genocide and crimes against humanity — of Uighur Turks in the Xinjiang Autonomous Region in ICC non-signatory China to Tajikistan and Cambodia had not occurred.  

Thus, it stated that these allegations implicating high-level figures including Chinese President Xi Jinping were not “within the jurisdiction of the Court.” 

Uighur Turks, who had to flee to Tajikistan and Cambodia for serious human rights violations and fear of being taken to “mass internment camps,” applied to the Prosecutor’s Office for it to consider deportations to Tajikistan and Cambodia, which are members of the court, to serve as a basis for an ICC investigation.  

The application accused Chinese officials of the crimes of murder, persecution, kidnapping, torture, deportation and deprivation of liberty committed against Uighur, Kazakh, Kyrgyz and other Turkic peoples in the Xinjiang Uighur Autonomous Region.

However, the Prosecutor’s Office said Uighur Turks had not been forcibly expelled from their country in a manner that would have allowed for a previous ruling on Rohingya Muslims in Myanmar to be taken as a precedent. Rather, it said they had been not allowed to leave the camps inside the country, which does not fall within the court’s jurisdiction.

Underlining that the crimes against Uighur Turks did not constitute “deportation,” the office decided that the court could not establish its jurisdiction based on Tajikistan and Cambodia.

It was noted that the preliminary examination was completed on the grounds that there was no jurisdiction in the light of the existing evidence and that the investigation phase would not be initiated if new evidence was not revealed.  

Palestine

On a completed preliminary examination of the situation in Palestine, the report said there was “reasonable basis” to open an investigation on an application concerning alleged war crimes in the occupied West Bank and East Jerusalem, as well as the Gaza Strip.

The new prosecutor will act on the Pre-Trial Chamber’s ruling that the court can exercise jurisdiction in these regions.   

UK/Iraq

The report also said a preliminary examination on allegations of war crimes committed by the British army in Iraq had been completed and that an investigation would not be opened.

It said that the information available, it could not be concluded whether UK authorities shielded individuals from criminal responsibility.    

Nigeria and Boko Haram

In Nigeria, it was decided that an investigation would be opened into allegations that Boko Haram and the army had committed war crimes and crimes against humanity.

The prosecutor found evidence that the Boko Haram terror group had committed numerous war crimes and crimes against humanity including murder, torture, rape, kidnapping, enslavement, looting and inhuman treatment. 

It also noted that there was evidence that the Nigerian army had also committed some of these crimes.  

Russia

The report said the Prosecutor’s Office had also completed its preliminary examination of the situation in Ukraine, deciding to launch an investigation into possible war crimes committed by Russia, pro-Russian separatists and the Ukrainian army.

The report said there was a “reasonable basis” to believe Russia committed war crimes in Crimea and eastern Ukraine. 

Colombia

However, the office said it had failed to complete one preliminary investigation, initiated in 2004, for crimes against humanity and war crimes committed in the conflict between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC). 

The court will rule on whether to open an investigation before the ICC after examining local legal proceedings under the Colombian war crimes court established by the Colombian Senate as part of the peace agreement signed with the FARC.

As a result of more than half a century of conflict between the Colombian government and FARC, approximately 260,000 people were killed and six million displaced.  

Guinea

The report said its investigation on Guinean forces opening fire on people protesting then-military junta head Dadis Camara in the West African country’s capital Conakry would continue. 

Some 150 people died, hundreds of women raped, and many tortured after Camara ordered on Sept. 28, 2009 for dissenters to his rule to be killed.  

Philippines 

On allegations that Philippine President Rodrigo Duterte committed crimes against humanity amid his campaign against drugs that resulted in thousands of deaths, the Prosecutor’s Office said its preliminary examination would continue. 

The office anticipated a decision on opening an investigation against Duterte would be taken in the first half of 2021.  

Venezuela

The office said reporting on two examinations on Venezuela, one upon a joint application by Argentina, Canada, Colombia, Chile, Paraguay and Peru in February 2018, and the other by the Venezuelan government in February this year, were both ongoing.

The first examination into the country, which suffered a severe economic and political crisis, was initiated in 2018 following anti-government protests between 2014 and 2018 for alleged serious human rights violations by security forces.

In another examination launched this year, Venezuelan President Nicolas Maduro applied to the ICC to investigate the unilateral sanctions of the US against his country since 2014.

The prosecutor’s office expects to make a decision as to whether to open a probe by combining the two preliminary examination files in the first half of 2021, since the crimes related to both incidents coincide on similar dates.

Currently, 13 candidates are running to take the post of ICC Prosecutor Fatou Bensouda. The new chief prosecutor is to be elected by the member states of the ICC and will serve for nine years between 2021-2030. 

*Writing by Busra Nur Bilgic Cakmak

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