On February 2nd, 2024, UpRights and StraLi released the report Navigating Troubled Waters: Italy’s Human Rights Dilemma in the Mediterranean .

Shedding light on the human rights violations arising from the implementation of Memorandum of Understanding (MoU) signed by Italy and Libya, this report builds upon our Article 15 Communication to the International Criminal Court, which called for an investigation into the international crimes committed by Libyan armed groups against migrants following their interception at sea and return  to  Libya.

The Memorandum of Understanding: A Closer Look

As we approach the 7th anniversary of the MoU, the report delves into its negative human rights implications, calling for a critical examination of Italy’s cooperation practices with Libya and emphasizing the drastic need for a reformulation of such framework.

Tacitly renewed last in February 2023, the MoU has increased the capacity of Libya to intercept migrants and refugees. Nonetheless, the absence of human rights provisions in the framework of the agreement drastically impacted the basic human rights of vulnerable persons, with migrants intercepted at sea facing mistreatment, including arbitrary arrest, torture, inhuman treatment, and sexual violence.

Italy’s International Responsibilities

Our report argues that such violations inevitably render Italy’s position, and consequently the MoU itself, untenable, and situate Italy in violation of its human rights obligations through a policy of externalization.

Indeed, the conduct of Libyan authorities exposes Italy to international responsibility for the violation of several international conventions, including the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), and possibly the European Convention on Human Rights (ECHR).

The material support provided by Italy may even implicate individual criminal responsibility for Italian agents assisting the Libyan authorities, potentially qualifying as war crimes and crimes against humanity.

Call to Action: Reframing Italy’s Cooperation Strategy

As such, the report calls for a reconsideration of Italy’s cooperation strategy with Libya, proposing two options to ensure compliance with international law obligations:

1. Amendment of the MoU: A human rights clause should be introduced, specifying that respect for human rights and international humanitarian law is essential. This clause should establish an independent body to monitor compliance, a list of mitigating measures for human rights violations, and a legal framework for effective access to justice.

2. Termination or Suspension of the MoU: If amendments consistent with human rights principles cannot be introduced, the report suggests the possibility of terminating or suspending the MoU. Violations by the Libyan authorities may justify such actions under Article 60 of the Vienna Convention on the Law of Treaties, providing leverage for negotiations on amendments in line with Italy’s human rights obligations.

Moving towards human rights

In light of the harsh realities faced by migrants in the Mediterranean, the report urges Italy to amend its policies to ensure compliance with international human rights standards. The report aims to encourage a constructive dialogue and tangible actions to ensure the protection of migrants’ rights and uphold Italy’s commitment to its international obligations.

Waves of the sea reflecting the focus area of the report

UpRights’ Legal Adviser Marin Van Hove gave a presentation entitled Using International Criminal Law to Support Refugee Protection: Lessons Learned from UpRights’ Article 15 Communication this month, as part of the 3rd Online Course on Advocacy for Protection offered by the International Institute of Humanitarian Law, Sanremo.

The presentation provided an analysis from the perspective of international criminal law, and an overview of interplay of the different applicable legal paradigms as relevant for refugee law or factual situations. This drawing from UpRights’ and its cooperation partners’ previous work submitting an Article 15 communication to the Prosecutor of the International Criminal Court, alleging war crimes and crimes against humanity committed by armed groups against refugees and migrants in Libyan detention centres.

The presentation explained how refugees and migrants are part of the nexus to armed conflict, both as contextual element of war crimes and for exercising ICC jurisdiction pursuant to UNSC Resolution 1970 (2011). It also illustrated that individual criminal responsibility under international criminal law and the International Criminal Court model may in some cases reach further than state responsibility under international human rights law and extraterritorial jurisdiction.

The International Institute of Humanitarian Law’s Online Course on Advocacy for Protection presents key elements to support transformation of policies and public perception of refugees, internally displaced persons, stateless people and migrants. Based on protection principles from international refugee, human rights and humanitarian law, the course assesses challenges and opportunities in protection situations and identifies stakeholders towards which advocacy interventions can be addressed. This year’s edition of the course focused on helping refugees and grass-roots civil society attending the UNHCR’s Global Refugee Forum this month.

UpRights is thankful to have had the opportunity to contribute to this course as part of the organisations’ cooperation.

On 11 December 2023, Human Rights Activists (HRA) in Iran and UpRights filed a submission before the United Nations Fact-Finding Mission on the Islamic Republic of Iran (FFMI). The submission contends that crimes against humanity, and in particular persecution on political and gender grounds, have taken place in the Islamic Republic of Iran since at least 16 September 2022.

Analysing information collected and verified by HRA and two partner organizations, the submission demonstrates that there are reasonable grounds to believe that the crackdown by the Iranian authorities on the peaceful protests that followed the death of Mahsa Zhina Amini, and other violations related to the protests since September 2022, constitute a widespread and systematic attack against the civilian population. Against the background of the “Woman, Life, Freedom” protests, the submission highlights specific examples of the violence employed by the Iranian government including instances of arbitrary arrest and detention, sexual violence, and murder. It demonstrates that those examples qualify as underlying acts of crimes against humanity and severe deprivations of fundamental rights.

The submission outlines how agents of the Iranian government intended to discriminate against women and girls especially on the basis of gender, with these groups singled out for persecutory treatment including physical and psychological abuse, the use of derogatory language and acts of sexual violence including rape. The submission recognises in this respect that individuals have also been targeted on political grounds. It stresses, however, the intersectional nature of the violations to which women, girls and LGBTQI+ individuals have been specifically subjected by the Iranian authorities for their perceived non-compliance with established gender norms and discriminatory laws and policies.

The submission concludes with recommendations by HRA to the FFMI and the international community to establish accountability for the violations outlined in the submission.

UpRights thanks HRA for the opportunity to contribute to this important issue and in particular analysis of the crime against humanity of persecution on gender grounds. While the entirety of the submission has not been made public at this time, an executive summary of the facts is available here.

On Thursday, November 30th, 2023, UpRights’ Co-Director, Valérie Gabard, joined the Database Center for North Korean Human Rights (NKDB) for the release of their latest report ‘Behind Closed Doors: Mapping the System of Command in the Ministry of State Security & Social Security’. This collaborative effort aims to unravel the intricate web of human rights violations in North Korea, underscoring how the discourse on the North Korean human rights issues has progressively shifted from exposing the gravity of North Korean human rights violations to finding ways to hold perpetrators accountable.

Photo Credits: NKDB

The Report’s Focus: Responsibility and Accountability

Through the employment of its database comprising over 140,000 cases of human rights violations, NKDB was able to produce a report that delves into the organizational structure and systems of command within the North Korean Ministries of State Security and Social Security. The primary goal of the report is to shed light on the systematic and widespread human rights violations occurring within North Korea, emphasizing the need to identify the responsible individuals and organizations, as well as all those actors turning blind eye to the systematic and widespread violations happening in the country.

Photo Credits: NKDB

Valérie’s Insights: Exploring Superior Responsibility

In her contribution Valérie underlined how the type of work done by NKDB could assist in pursuing accountability because of its information-seeking character, indeed, according to the UpRights’ Co-Director, a better understanding the structure and organization of the Ministries could assist judges and prosecutors understand their power structures.

Drawing from her experience from working within the International Criminal Tribunals for the former Yugoslavia and Rwanda, Valérie emphasized the challenges of prosecuting individuals and specifically discussed the concept of ‘superior responsibility’ in the context of international law. While ‘superior responsibility’ is a well-established concept in international criminal law, its application becomes more nuanced in the Korean context, where no individuals have been prosecuted yet. For this exact reason, the report aims to go beyond merely identifying individuals and organizations but also to demonstrate effective control, a crucial aspect in establishing ‘superior responsibility.’

Photo Credits: NKDB

UpRights’ Contribution: Training and Collaboration

Between December 2022 and June 2023, UpRights has been providing investigative and legal advise in the context of collecting evidence and witness reports to better understand the structure and chain of command of the North Korean’s Regime. Furthermore, in January 2023, UpRights also provided the NKDB with trainings workshops aimed at strengthening their legal capacity in documentation and accountability-seeking efforts for crimes committed in North Korea

Looking back at last week’s event, UpRights expresses its pride in the long-term partnership with NKDB and extends gratitude to the entire team for their collaboration in this significant conference. The collective effort aims to bring justice to the victims of human rights violations in North Korea and holds the promise of a brighter future for those affected.

On November 21st and 22nd, 2023, UpRights’ Co-Directors Valerie Gabard and Asa Solway, along with Senior Legal Advisor David Kinnecome, participated in a series of events organized to facilitate knowledge exchange among legal experts and enhance the capacity of Ukrainian judges in the realm of international criminal law.

On November 21st, Valérie and Asa engaged in a thought-provoking session promoted by the T.M.C Asser Instituut focusing on judgement drafting in international crimes cases. The discussion began with their relevant experience at international criminal tribunals and then moved to a specific discussion of Article 438 of the Ukrainian Criminal Code and the issues related to the applicability of international criminal law in light of its blanket provision concerning war crimes.

The presentation integrated insights from the Benchbook on the Adjudication of International Crimes in Ukraine, a resource crafted by Ukrainian judges, UpRights, and Global Rights Compliance in close cooperation with the Ukrainian Supreme Court, the National School of Judges of Ukraine and with the support of USAID and the Matra Project to aid judges in the interpretation and application of relevant domestic offenses.

On November 22nd, in a separate workshop, David Kinnecome, UpRights’ Senior Legal Advisor, joined Valérie and Asa for a workshop on comparative law organized by the USAID Justice for All Activity as part of the Inter-University Programme on International Criminal Law and Procedure for Ukrainian Law Schools (IUP-UA).

The workshop provided a platform for Ukrainian law faculties to engage in in-depth discussions on issues related to international criminal law as applied in Ukraine. The trio’s presentation covered a spectrum of topics, including the role of international law in adjudicating war crimes cases under Article 438 of the Criminal Code of Ukraine and they also explored aspects of in-absentia trials and the admission and assessment of digital evidence, drawing where relevant from the practice of international tribunals.

UpRights is pleased to support the organisations’ commitment to promoting knowledge-sharing in international justice. Read more about these visits here, about the IUP-UA Project here and read the Benchbook on the Adjudication of International Crimes.

UpRights’ Co-Director Asa Solway had the opportunity to teach a course on self-determination in international law at the University of California, Berkeley School of Law.

“Self-Determination of Peoples in International Law” aims to familiarise students with the legal foundations of self-determination in international law, considering its relevance in the United Nations Charter, the jurisprudence of the International Court of Justice, decolonization and modern dynamics of both national and international self-determination movements.

Throughout the course, students engaged in discussions and debates on a range of pertinent issues, including decolonization, secession minority rights, state sovereignty, and claims to natural resources.

The course provides a platform for students to explore contemporary approaches to the concept of the right to self-determination in light of modern advocacy movements, as well as ongoing debates surrounding the applicability, scope, and original intent of this right as envisioned in the drafting of the United Nations Charter.

UpRights is thrilled to announce a significant achievement in our ongoing partnership with the Global Organic Textile Standard (GOTS). In order to support more sustainable and ethical business practices in the textile industry, UpRights assisted GOTS in the creation of the GOTS Due Diligence Handbook for Certified Entities. This document will strengthen GOTS’ existing frameworks to ensure Certified Entities incorporate effective due diligence into their operations while bringing GOTS closer to the Organisation for Economic Co-operation and Development’s (OECD) frameworks.

GOTS’ Due Diligence Handbook for Certified Entities complements the most recent Standard and Implementation Manual, released in March 2023 with support from UpRights. The Standard and Implementation Manual’s criteria pertaining to the environment, chemical input, social and human rights, and governance, are now supplemented with a comprehensive due diligence management process.

GOTS’ criteria and due diligence are now also brought closer to the OECD’s comprehensive international framework for due diligence for responsible supply chains in the garment and footwear sector. This is part of a rigorous alignment assessment process, which is supported by the German Federal Ministry for Economic Cooperation and Development, and which began in July 2023 and is expected to go into 2024.

The result will assist and empower all GOTS Certified Entities to conduct effective due diligence, tailored to the unique circumstances of each entity. This is set out in a practical, six-step process to proactively address risk of harm and adverse impacts to human rights and the environment. It is a roadmap to identify; prevent; track; communicate; and remedy those adverse impacts within Certified Entities’ operations and supply chains. With cooperation among Certified Entities and working with the entire supply chain, from raw fibre harvesting, through responsible manufacturing, up to labelling to provide credible assurance to end consumers.

UpRights looks forward to continuing its cooperation with GOTS through the development of further instruments and training for GOTS Approved Certification Bodies and Auditors. Most of all we look forward to witnessing the positive impact of these efforts as companies strive to uphold human rights and environmental responsibility.

In 2023, UpRights and The Hague Academy for Local Governance developed a Training of Trainers on transitional justice, as well as an interactive online training, for Ukrainian civil servants. In recognition of the International Day of Peace on September 21st, UpRights’ co-director, Asa Solway, discussed with the Hague Academy the importance of transitional justice processes in Ukraine including in light of the full-scale Russian invasion of Ukraine.

Asa observed that the training is intended to serve as a toolkit designed to help societies confront the aftermath of large-scale past conflicts, repressions, violations, or abuses. In this regard, transitional justice is composed of different processes designed to address challenges that arise during and following conflict and periods of serious human rights abuses to ensure justice and accountability, strengthen the rule of law and promote reconciliation through a victim-centered approach.

Asa observed that the situation in Ukraine faces a plurality of conflict-related challenges that, viewed through these lenses, can be addressed through transitional justice processes including by giving voice to those most affected. He further noted that although peace requires long-term commitment, communities will have the best chance to begin to rebuild while focusing on those most vulnerable if an organised approach is taken that rooted in the rule of law.

Read the full interview here and read the Benchbook on the Adjudication of International Crimes

On July 18, 2023, UpRights Senior Legal Advisor David Kinnecome alongside Ukrainian judges led the fifth and final workshop focused on procedure in international crimes cases in Ukraine. The workshop is the final in a series of events organized by the USAID Justice for All Activity following the publication of the Benchbook on the Adjudication of International Crimes, which was developed by the USAID Justice for All Activity in partnership with the National School of Judges, Global Rights Compliance, and UpRights.

David and Ukrainian judges presented attendees with national and international perspectives on issues relating to trials in absentia, the assessment and admissibility of digital evidence, and the risks of re-victimization, which are relevant to adjudicating international crimes. In particular, the event highlighted how international practice and procedures can offer guidance and in certain instances persuasive authority when considering procedural issues under the Ukraine Criminal Procedure Code.

The event closed a series of thematic workshops organized following the publication of the Benchbook on 22 June 2023 to provide judges and other stakeholders with the opportunity to discuss substantial and procedural aspects of international crimes adjudication provided by the Benchbook.

UpRights prepared an independent expert report assessing the Human Rights Due Diligence (HRDD) process of the Mozambique Liquified Natural Gas (LNG) Project operated by TotalEnergies. This report, commissioned by Justiça Ambiental!, Friends of the Earth Europe, Friends of the Earth, Milieudefensie was published today.

While clear signs indicate that TotalEnergies is considering officially restarting the development of the LNG project it operates in the Northern Province of Cabo Delgado in Mozambique, the independent review conducted by UpRights highlights gaps and omissions in the HRDD assessment conducted in 2020 and in the subsequent Action Plan. The report also points to the significant disconnect between the project’s public commitment in its human rights policy to respect human rights and its actual implementation in the Project’s operations and the human right situation on the ground. While some of the limitations encountered in conducting the process may be related to the COVID-19 pandemic, it does not obliviate the shortcomings identified in the report.

The main area of concern relates to the disregard in the HRDD process of the armed conflict in Mozambique. The HRDD assessment conducted in 2020 and the following Action Plan of TotalEnergies fail to properly prioritize and consider the armed conflict and to conduct heightened HRDD with a conflict-sensitive approach. No justification can be found for such a disregard given that the LNG project has been operating in a conflict-affected area since 2017 and that TotalEnergies became the operator of the project in September 2019. As a result, the human rights due diligence process fails to:

Accurately assess the potential human rights impact of the Project on the security situation of the communities vis-à-vis the insurgents and the Mozambique security forces.

Consider international humanitarian and international criminal law as relevant legal frameworks despite their undeniable relevance to the context of the Project’s operation.

Assess the real risk of being considered complicit in international humanitarian law violations or war crimes allegedly committed by the Mozambican armed forces.

Comprehensively address the issue of gender and conflict as part of any heightened human rights due diligence.

This review was conducted on the basis of documents made publicly available by TotalEnergies. The public scrutiny of the implementation of HRDD by the LNG Project was limited by the unavailability of several important documents as well as the inadequate level of detail and lack of explanation of certain key considerations in the documents available.

Read the Assessment of TotalEnergies’ Mozambique LNG Project Human Rights Due Diligence