The horrible death of George Floyd raises important questions of criminal liability. The police officer who was directly responsible for the death of Floyd has been arrested and will face prosecution for committing murder and manslaughter. The other three police officers who were present at the moment of Floyd’s death have also been arrested and are likely to be prosecuted for aiding and abetting murder and manslaughter. This blogpost will focus on that last category, that of police bystanders in situations of police brutality.
Many NGOs are actively fighting human rights abuses around the world. One of their strategies is to create transparency around the impact of the behaviour of States and non-State actors on the enjoyment of human rights. In this context, businesses have been under increasing scrutiny. Although the availability of information on the negative impact of corporate activities now seems tremendous, the instances of businesses being held liable for human rights abuses, especially when taking place abroad, are rare.The situation of Friends of the Earth and ING provides an interesting case study of how civil society could play a role in establishing liability through increase of transparency.
From 1989 until 2019, the Sudanese government engaged in a number of violent campaigns against civilian populations. The government’s armed conflict with rebel groups resulted in widespread human rights abuses, and was characterized by unjustified attacks against civilians that bore the markings of ethnic cleansing. Despite the Sudan’s dismal human rights track record, in 2002 the French bank BNP Paribas began doing business with the Sudanese government. BNP Paribas’s banking activities in the Sudan are now at the center of a criminal complaint filed in French courts, which argues BNP Paribas was complicit in violations committed by the Sudanese government.
The proposed article 134b of the Dutch Criminal Code (DCC) would criminalize intentionally being physically present in a designated terrorist-controlled area without prior permission from the Minister of Justice and Security. This Dutch legislative initiative, its other forms of penalizing terrorism, and its recent case law on terrorism are not unique. Throughout the world there has been a wave of penalizing terrorism in a great variety of forms. The central line in all these developments is the increasing criminalization of various forms of assisting -in a broad sense - terrorism, such as financing terrorism, apologie du terrorisme, presence in terrorist areas, cooking for IS fighters, etc. We offer a few critical reflections.
On 25 March 2020, the UK Supreme Court delivered its judgment in the case of Elgizouli v Secretary of State for the Home Department. The case concerns the appeal brought by the mother of one of the members of an IS terror cell dubbed ‘The Beatles’ against the Home Secretary’s decision to provide mutual legal assistance to the US that could facilitate a trial resulting in the death penalty. Reversing the judgment of the Divisional Court, the Supreme Court unanimously found that the UK’s decision to share the evidence with the US was unlawful.
In reaction to the recent news coverage of the cases of Julio Poch and Ridouan T., Göran Sluiter discusses some ‘grey’ areas, especially disguised extradition, in international
cooperation in criminal matters in the law journal NJB (Nederlands Juristenblad, in Dutch).
The US Alien Tort Statute (ATS) was considered one of the foremost judicial avenues for vindicating human rights violations until two Supreme Court cases limited its scope, leading practitioners and scholars to pronounce its death as a tool for human rights litigation. Although it no longer allows for cases against foreign companies for harms occurring on foreign soil, this blog argues that it is not dead.
Ahmad Al Zien started last month as a researcher with his individual project 'Secondary Liability for International Crimes – Case Study of Syria'. His 18-month appointment is being funded by the Netherlands Organisation for Scientific Research (NWO). Through this programme, project leaders of NWO-funded research projects can request additional funding to hire a refugee to work on their project. The Amsterdam Law School published a news article about Ahmad's project.
On 16 and 17 January the Expert Group of the Rethinking SLIC project gathered for the first time in Amsterdam. On the first day, all the participants came to the faculty room of the Amsterdam Law School for a plenary session. The principal investigator of the project, Göran Sluiter, first briefly introduced the project, after which he and Sergey Vasiliev elaborated on some practical aspects of the project as well as lessons learned from their previous project ‘International Criminal Procedure: Principles and Rules’ which used a similar structure to that of the current one.
Dutch development bank FMO was involved in financing the Agua Zarca project on the Gualcarque river in Honduras. The river and the surrounding land are sacred to the indigenous Lenca people, and the project has been met by continued protests. The situation gained increased international attention after local activist Berta Cáceres was murdered in her home on the night of 2-3 March 2016. In May 2018, members of her family and NGO announced they would pursue a case against FMO for its role in the human rights violations against the community.
Göran Sluiter and Kate Mackintosh have submitted their amicus curiae observations to the ICC concerning the Afghanistan situation. They argue that the pre-trial chamber's decision is not consistent with internationally recognized human rights and violates art. 21(3) of the statute.
The observations can be accessed on https://www.icc-cpi.int/CourtRecords/CR2019_07006.PDF
In cross-border tort cases for human rights violations, there is the strict rule that the law of the State where the harm occurred applies to the determination of civil (tort) liability. The nature and scope of foreign tort law generally develops into a battle of so-called experts. There is a significant risk that courts will commit errors in the interpretation and application of foreign law and that the fundamental principle of iura novit curia (‘the court knows the law’) can hardly be observed if foreign law needs to be applied. The question arises whether the rule of lex loci damni is in need of modernization.
Since holding robots liable for their unconscious yet wrongful behavior is not an option under existing law, accountability must devolve on to another legal entity or persons in order to avoid a situation of impunity. As the prior post highlighted, the lack of intentional or willful behavior by the primary wrongdoer—a robot—means that criminal liability is difficult if not impossible to establish. However, other areas of law, namely tort law, strict liability mechanisms, or the law of State responsibility, do not require the same standard of mens rea and thus might open up avenues for assigning accountability.