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.
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.
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.
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.
On 20 June 2019, the London Court of Appeal delivered its judgment in the appeal of the Campaign Against Arms Trade against the Divisional Court’s judgment of July 2017 on the continued export of arms to Saudi Arabia for use in the ongoing conflict in Yemen. Unlike the Divisional Court, the Court of Appeal found it was irrational and therefore unlawful for the Secretary of State for International Trade to proceed as he did, namely to not take Saudi Arabia’s past and present record of respect for international humanitarian law into consideration.
The development of weapons and warfare technology inevitably raises new moral and legal questions, and the advent of the use of autonomous weapon systems is no exception. Salient concerns arise when weapons are designed to be increasingly autonomous, especially with regard to liability in the event of international humanitarian law violations.
The European Court of Human Rights (ECtHR) has dealt with the operation of CIA ‘black sites’ in certain European countries and the subsequent renditions of terrorist suspects from these countries to other places controlled by the CIA in a series of lengthy judgments.
It exceeds the scope of this blog to deal with all aspects of this interesting ECtHR case law. Instead, we will focus on three aspects which are of interest when analysing these cases from a secondary liability perspective.
This week, the UK Supreme Court is set to issue its highly anticipated judgement in Vedanta and another v. Lungowe and others, and the business and human rights community is paying close attention. The case is expected to define the scope of parent company liability for harms caused by acts of their subsidiaries abroad, and will have wide-ranging consequences on human rights litigation in the UK, including whether victims of human rights violations and grave environmental harms caused by subsidiaries of UK-based companies can avail themselves to UK courts.
Two cases related to war crimes have received quite some attention in the Netherlands over the past few years. These are the cases of Mr. Kouwenhoven and Mr. Poch. They provide an excellent opportunity to offer some thoughts on the fine line between guilt and innocence in the determination of criminal liability for those who have not committed the crimes themselves, but have in some way assisted in their commission.
According to a confidential EU report, three of Damen’s Stan Patrol 1605s, including the Talil 267, are used by the Libyan coastguard. Footage and photos show that machine guns are attached to the vessels’ mountings. The Dutch government permitted these vessels to be transported without a licence, classifying them as non-strategic and not subject to authorisation. Remarkably, Damen was eager to arm the vessels in 2014. In accordance with the arms embargos of the UN and the EU, the government denied permission. Now it appears the Dutch vessels are indeed armed and have been used in violent, high-risk operations against vulnerable people at sea.
Over the course of the past several decades, an increasing number of civil cases have been brought before European and North American courts against transnational corporations for their role in the commission of grave human rights violations, the majority occurring in the global south.1 This trend illustrates the push to hold powerful actors engaged in international business accountable when they play a role in the commission of mass atrocities and serious human rights abuses.
The Forum on Business and Human Rights was held at the end of November 2018 in Geneva. Numerous sessions were organized for around 2500 participants, dealing with many aspects concerning the protection of human rights in the context of business operations.
The focus of this year’s forum was on due diligence. According to the Guiding Principles on Business and Human Rights, companies must have due diligence in place as stipulated in Principle 15 (b):
Corporate involvement in mass atrocities has rarely been the subject of criminal prosecution. This may partly be due to the often remote involvement by corporations and business leaders and the resulting difficulty to collect sufficient evidence and to apply classical criminal law principles to an internationalised context. However, it may be argued that we are increasingly seeing an emerging practice at the domestic level. In the past year, a number of European justice systems have initiated criminal investigations and indictments of corporations.