UpRights’ Legal Researcher Nurul M. Azmi and Legal Adviser Ciara Laverty examine legal questions arising from Ukraine’s capture of North Korean soldiers fighting alongside Russian forces in a new post for OpinioJuris. The post provides an in-depth exploration of the legal framework governing the transfer or repatriation of North Korean soldiers captured by Ukraine under international humanitarian and human rights law, exploring the possible barriers to their repatriation and options for their accommodation in Ukraine or transfer to a neutral third state. 

The Third Geneva Convention imposes obligations on detaining powers to repatriate certain categories of prisoners of war (POWs) while hostilities are ongoing, and to release and repatriate all POWs once hostilities have ceased. The Ukrainian authorities have also indicated that they would be open to returning the POWs to North Korea in exchange for Ukrainian POWs detained in Russia prior to the cessation of hostilities. 

The blogpost outlines how, in the context of North Korea, the potential repatriation of POWs is nevertheless complicated by the principle of non-refoulement, which prohibits the return of individuals to states where they face a credible risk of serious violations of fundamental rights, such as torture, persecution, or other ill-treatment, as well as by the possibility that POWs may not wish to return to North Korea. 

The post therefore also considers possible alternatives to the repatriation or exchange of North Korean POWs.  It outlines how accommodation in Ukraine, under the framework of the Fourth Geneva Convention and refugee law, may be one option for POWs who do not wish to return to North Korea or where issues of non-refoulement prevent their return. It also explores the possibility of transferring POWs to neutral third countries, such as South Korea, which has indicated that it may be open to receiving North Korean POWs, should they seek resettlement. 

Given the nature of the North Korean state, the post stresses that it will be important to account for the risks that POWs may face if returned to North Korea and ensure that any decisions are made and implemented in compliance with Ukraine’s obligations under the Third Geneva Convention and international human rights law. 

Read the full analysis on OpinioJuris here

On Monday 2 December, Amnesty International submitted a legal filing, to which UpRights provided legal and drafting support, to the President of the Pre-Trial Chamber of the International Criminal Court (ICC) on behalf of several victims’ networks in northern Nigeria, including the Jire Dole Mothers and the Knifar Movement networks.  

 

The submission requests that the Pre-Trial Chamber take action to bring the Prosecutor into compliance with their legal obligation under Article 15(3) of the Rome Statute to open an investigation into the situation in Nigeria.  

This filing responds to the unprecedented situation created by the Prosecutor in relation to the situation in Nigeria at the ICC. The Office of the Prosecutor (OTP) opened a preliminary examination into the situation in Nigeria in 2010. In 2020, the Prosecutor closed the preliminary examination, concluding that the statutory criteria for opening an investigation had been met. Despite this conclusion and now four years later, the OTP has nevertheless taken no action to request the opening of an investigation, leaving Nigeria in an unprecedented legal ‘limbo’ between these two stages of the ICC judicial process. 

Ten years of preliminary examination followed by a public announcement in 2020 that the criteria for opening an investigation had been met has given rise to significant and legitimate expectations among victims and affected communities in Nigeria. Four years later, victims and survivors of the conflict have been left with no explanation or certainty as to the Prosecutor’s next steps, while their rights to truth, justice and reparations remain on indefinite hold.  

In this filing, Amnesty International and UpRights submit that, in failing to request authorization to open an investigation in Nigeria, the Prosecutor is acting inconsistently with their legal obligation under Article 15(3) of the Rome Statute. The submission outlines how the language and structure of Article 15 make clear that, once the Prosecutor has concluded that there is a reasonable basis to proceed with an investigation, they are under a legal obligation to request authorisation from the Pre-Trial Chamber to do so. The submission argues that such authorisation should have been requested immediately after, or at a minimum, within a reasonable time after, the Prosecutor reached the conclusion that the criteria to open an investigation had been met. The submission further outlines how the legal obligation imposed on the Prosecutor under Article 15(3) is consistent with internationally recognized human rights, including the rights of victims to truth, justice and reparations, and to be informed about the status and progress of criminal proceedings. 

 

UpRights is glad to support this critical submission and endorses its call for investigating and prosecuting the crimes committed in northeast Nigeria since 2009. 

You can read the submission here. 

On October 21st, 2024, UpRights participated in the “Forum on Gender Persecution Principles”, a symposium organized by the Women’s Initiative for Gender Justice. The event explored implications of gender persecution in Afghanistan and Iran and potential accountability pathways.

 

During her panel, UpRights’ Co-Director Valérie Gabard offered insights into the Crime Against Humanity of Gender Persecution, emphasizing its ability to pursue justice for crimes related to systemic and deeply rooted discrimination against women and girls in Afghanistan and Iran.

This blogpost builds on the discussion held during the symposium to consider the importance of the crime of gender persecution. Although a relatively recent addition to the framework of international law, gender persecution has the potential to confront systemic gender-based discrimination by recognizing its deep entanglement with other forms of oppression. Its relevance to ensuring accountability and promoting justice lies not only in its capacity to prosecute overt human rights abuses but also in its ability to reflect the intersectional nature of oppression where gender discrimination intertwines with political, religious, or societal forms of persecution. By examining the differing yet similarly entrenched discriminations in Afghanistan and Iran, this blogpost illustrates how gender persecution can help to achieve accountability and enable an approach to legal analysis that captures the multi-layered motives of oppression.

The emerging importance of gender persecution can be seen, for example, in the commitment of successive ICC Prosecutors focusing their attention to this crime, the emerging jurisprudence of the Court, and the conclusions reached by the Independent International Fact-Finding Mission on the Islamic Republic of Iran that crimes against humanity of gender persecution may have been committed in the context of the “Women, Life, Freedom” movement, open new perspectives and avenues for pursuing accountability.

 

Gender Persecution: Legal Definition and Framework

Since its adoption in the Rome Statute of the International Criminal Court (ICC), the crime against humanity of gender persecution offers the possibility to address entrenched discrimination and pursue prosecution of human rights violations based on gender. This framework is particularly relevant in contexts where such gender discrimination is embedded in societal norms, policies, and legal systems.

Gender persecution is defined at the ICC as the severe deprivation of fundamental rights contrary to international law against any identifiable group or collectivity on gender grounds in connection with any other underlying act of crime against humanity or any crime within the jurisdiction of the Court.

Like any other crime against humanity, it must be shown that the persecutorial acts are committed as part of a widespread and systematic attack directed against any civilian population pursuant to, or in furtherance of, a State or organizational policy.

While the Rome Statute defines gender as “the two sexes, male and female, within the context of society”, the International Law Commission has not included this definition in its Draft Articles on Prevention and Punishment of Crimes Against Humanity. In its Policy on Gender Persecution of 2022, the ICC Prosecutor defined gender rather as “sex characteristics and social constructs and criteria used to define maleness and femaleness, including roles, behaviors, activities and attributes” and the limited jurisprudence available from the ICC appears to align with the Prosecutor’s definition.

Gender persecution was recognized as a crime against humanity by Article 7(1) of the Rome Statute, constituting was the first codification of the crime under international law. Persecution has long been recognized as an underlying act of crimes against humanity under customary international law, and the adoption by the international law commission of the Rome Statute definition of gender persecution in the draft articles for a future treaty on crimes against humanity weighs in favor of the view that it reflects customary international law.

While the Rome Statute was adopted in 1998, there has been limited jurisprudence from the ICC so far on the crime of gender persecution. The first Trial judgement with a charge of gender persecution was delivered in late June in the case of Al-Hassan in relation to the situation in the Northern city of Timbuktu in 2012. While Al-Hassan was acquitted on the charge of gender persecution, the crime of gender persecution itself was considered established by majority. Indeed, as part of the ruling, a majority of Judges also recognized that the persecution was based on several grounds – in this case religious and gender grounds – that Judge Prost described in its individual opinion as “inseparable” acknowledging an intersectional approach to the crime of gender persecution.

Gender Persecution on the Ground: Afghanistan and Iran

Since the Taliban’s takeover in August 2021, the situation of women and girls in Afghanistan has worsened dramatically. The Taliban’s policies have systematically erased women and girls from public life, barring them from education, employment, and freedom of movement. Resistance to these oppressive measures has been met with intimidation, persecution, and violence by the Taliban authorities.

In Iran, following the death of Mahsa Amini in September 2022, protests erupted in response to the country’s compulsory veiling laws and other political grievance against the Iranian government. These protests were met with excessive force by Iranian security forces, resulting in the deaths of hundreds of civilians – men, women, girls, boys and LGBTQIA+ individuals – and the imprisonment of thousands.

In detention, protesters or persons detained in relation to the 2022-2023 protests have been subjected to torture and inhumane conditions in detention. The information available suggests a pattern of sexual violence specifically targeting women and girls. All these acts have taken place in the context of a discriminatory legal framework against women, girls and LGBTQIA+ individuals and a strengthening of restrictions imposed on women and girls, notably on the implementation of the compulsory veiling.

 

Gender Persecution as a Tool to Address the Systemic and Societal Discrimination Faced by Women, Girls, and LGBTQIA+ Individuals

The specificity of persecution is that it allows for severe human rights violations committed on a discriminatory basis to qualify as crimes against humanity. Such violations include those to the right to life, freedom from arbitrary arrest and detention, the prohibition of torture and cruel treatment, the right to liberty, and freedom of movement.

But more importantly, acts of persecution are not limited to acts that otherwise constitute crimes against humanity or involve the use of physical violence.

 

They can include infringements such as the denial of education, public services, employment, of the right to due process, or the destruction or seizure of property.

In both the context of Afghanistan and Iran, gender persecution allows to encompass the systemic and societal discriminations against women and girls and LGBTQIA+ people.

For instance, in the context of Afghanistan, it is clear that Taliban’s policies banning education for girls are inconsistent with the right to education as reflected in international human rights treaties including the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the CEDAW.

The same would hold true for all the restrictions imposed by the Taliban on women and girls’ daily life, which individually or collectively undeniably amount to severe human rights violations specifically directed at women and girls.

In Iran, the crime of persecution stems instead from severe human rights violations related to the suppression of protests—acts that include murder, torture, rape, and other forms of inhumane treatment—combined with systemic infringements on women’s and girls’ rights entrenched within the national legal framework. These violations include restrictions on freedom of thought, conscience, religion, expression, movement, and the right to privacy, as well as the right to participate in public affairs and pursue economic, social, and cultural development as outlined in Article 1 of the ICESCR.

As a result, gender persecution addresses a broad range of discriminatory practices, providing a powerful tool to combat both overt violence and restrictive societal norms that oppress women and girls.

 

Intersectionality as way to reflect more nuance realities and the multiple and intersecting nature of the targeting of women and girls

In the Afghanistan’s context, the discriminatory intent of the perpetrators, namely the targeting of women of girls because of their gender is not controversial. All the severe violations of fundamental human rights recorded stemmed from policies that explicitly identify women as the group targeted by such limitations and restrictions. The circumstances surrounding the acts of persecution also show that the Taliban’s acted with the specific intent to target Afghan women and girls on the basis of their gender.

Iran presents a much more nuanced context where political and gender persecution intersect. Civilian victims are not only targeted for defying gender norms but are also perceived as political opponents when they challenge the regime’s ideologies. The regime’s response to these challenges includes both political and gender-based discrimination. The intersectionality of these grounds allows for a more nuanced legal analysis, recognizing that persecution can be motivated by multiple discriminatory factors, including both political beliefs and gender.

Gender persecution, in this context, serves as a flexible tool to capture these layered forms of oppression and accurately reflect the regime’s intent to target those who defy both political and gendered norms.

 

Conclusion

While the situations faced by women and girls in Afghanistan and Iran differ significantly, both can be understood through the lens of gender persecution. UpRights has been collaborating with partner organizations to deepen the understanding of the situation of women and girls in both countries and show that it can, in both cases, qualified as the crime against humanity of gender persecution.

In March 2023, UpRights provided legal drafting support for a report published by Amnesty International and the International Commission of Jurists, titled The Taliban’s War on Women, which provided a comprehensive legal analysis of the Taliban’s policies and crimes based on Amnesty International’s documentation. This report concluded that the severe human rights violations imposed on women’s and girls’ rights in Afghanistan amount to crimes against humanity, particularly gender persecution.

UpRights also worked alongside HRA and two other organizations to file a submission to the Independent International Fact-Finding Mission on the Islamic Republic of Iran (FFMI) in December 2023. The submission argued that human rights violations against women, girls, and LGBTQIA+ individuals, combined with the violent repression of the protests in the context of the “Women, Life, Freedom” movement that started in September 2022, constitute crimes against humanity, specifically gender and political persecution. The FFMI’s final report concurred with this analysis, recognizing that there are reasonable grounds to believe that gender persecution as a crime against humanity has been committed by some members of the Iranian political and security apparatus since the beginning of the “Women, Life, Freedom” movement.

At UpRights, we believe that the crime of gender persecution is an essential legal tool for addressing systemic and embedded discrimination against women and girls. While a lot remains to be done to fully utilize the potential of gender persecution, the understanding of the crime by the ICC Prosecutor summarized in its policy paper on the crime of gender persecution of 2022 and the limited ICC jurisprudence available suggests that gender persecution is by definition sufficiently flexible to offer a promising avenue for international and national criminal tribunals to address the severe violations of rights suffered by women, girls, and LGBTQIA+ individuals in different contexts, bringing us closer to achieving accountability and gender justice.

Photo Credits for Picture #1: Women’s Initiative for Gender Justice

 

 

 

 

 

On July 3, 2024, UpRights took part in the 7th edition of “Building the Capacity of Judges to Deal with International Crimes in Africa”, a training course for judges and prosecutors from French-speaking African countries organized in the context of the high-level training programme on international criminal law and transnational criminal law by the T.M.C. Asser Instituut, the Antonio Cassese Initiative, and the International Nuremberg Principles Academy. 

During her panel, UpRights’ Co-Director Valérie Gabard conducted an interactive exercise related to the investigation and qualification of conflict-related sexual violence, with a particular focus on the qualification of SGBV in the context of war crimes and crimes against humanity. Valérie’s presentation concluded the third day of the training, allowing participants to engage in discussions on the complex process of investigating and prosecuting sexual and gender-based violence. 

Covering topics like the elements of international crimes, investigations and prosecution strategies, and the protection of witnesses and victims in international criminal law cases, the training course was developed to equip judges and prosecutors with practical skills, tools, and knowledge necessary to address international and transnational crimes effectively. 

On May 16, 2024, UpRights’ Co-Director Asa Solway took part in “Interdisciplinary Dialogues: Can We Navigate Conflict Resolution in the Context of International Law?”, a conference organized by the Amsterdam Law Forum at the VU Campus in Amsterdam.  

In a context in which effective justice and accountability mechanisms for victims of organized violence are at the forefront of global efforts, the Amsterdam Law Forum conference brought together researchers and practitioners from various fields, including criminology, psychology, and law to discuss the capacities and limitations of international legal frameworks in addressing armed conflicts.  

Panel One focused on legal frameworks and the practical implications of international law in Ukraine. Among other topics, the discussion touched upon the difficulties of adjudicating international crimes during ongoing conflicts, underlining how Ukrainian judges face challenges in prosecuting war crimes and genocide, and stressing the importance of international support for judicial capacity building.  

As part of his contribution, Asa Solway discussed the importance of supporting non-criminal accountability pathways in Ukraine to ensure justice for victims and comprehensive solutions to the armed conflict and UpRights’ participation in drafting the Benchbook on the Adjudication of International Crimes in Ukraine. The resource, which serves as a comprehensive resource for judges to adjudicate international crimes cases, was developed by Ukrainian judges, UpRights, and Global Rights Compliance, in cooperation with the Ukrainian Supreme Court, the National School of Judges of Ukraine and with the support of the MATRA-Ukraine Project and the USAID Justice for All Activity.  

Reflecting on the discussions on the interplay between armed conflicts and international law, UpRights is pleased to have supported the Amsterdam Law Forum’s commitment to fostering interdisciplinary dialogue on the evolving landscape of international justice and accountability. 

Read the Conference Report

Thursday, 16th of May, marked the inaugural session of the online training series jointly organized by the Asser Institute, Global Rights Compliance, and the Ukrainian Bar Association, as part of the MATRA-Ukraine Project. 

UpRights Valerie Gabard and David Kinnecome delivered a presentation to explore the nuances of applying international law within the Ukrainian legal framework with a view to deepening knowledge among Ukrainian lawyers who represent the accused and victims in cases of crimes related to the conflict in Ukraine.   

Building upon UpRights’ work on the Benchbook on the Adjudication of International Crimes under Ukrainian Domestic Law, developed by international and Ukrainian experts in collaboration with judges and with support from the USAID Justice for All Activity, Valérie and David notably underlined the role of international law in the adjudication of international crimes under Article 438 and Article 442 of the Criminal Code of Ukraine. 

On Wednesday, May 15, 2024, UpRights’ David Kinnecome took part in the event, “Sanctions, Remittances, and (in)Security: Legal Conundrums, Financial Paradoxes, and Humanitarian Puzzles,” organized by the Asser Institute and the University of Leiden. 

Throughout the day, the conference brought together students, officials, practitioners, and scholars to explore the intricate interplay between international law and sanctions authority, the nuanced role of financial systems as conduits within the sanctions landscape, and the emergence of novel strategies employed by major powers to circumvent existing sanctions frameworks.  

As part of the roundtable on ‘Sanctions and the Pursuit of Accountability for International Crimes: Critical Reflections’, David addressed the pivotal issue of utilizing sanctions-related funds to facilitate compensation for victims of such crimes, underscoring the imperative of ensuring tangible restitution within sanction regimes. 

As we reflect on the rich discourse and insights garnered from yesterday’s proceedings, we are reminded of the imperative to continue fostering dialogue and collaboration within the realm of sanctions scholarship and practice.  

From April 15 to 19, 2024, Uprights’ Valérie Gabard and David Kinnecome contributed as experts in a training for judges on the adjudication of international crimes in Ukraine and on judgment drafting in international crimes cases. The training was organized by the National School of Judges with the support from USAID Justice for All Activity, Global Rights Compliance and T.M.C. Asser Institute, which implements the Dutch-funded MATRA-Ukraine Project. 

Alongside other experts specializing in international humanitarian law and international criminal law, as well as a judge from the International Criminal Court, UpRights’ Valérie Gabard and David Kinnecome shared their insights and subject matter expertise with participants. 

 

During the training, 25 Ukrainian judges from throughout the country improved their knowledge, skills, and abilities in evaluating evidence in trials involving international crimes and applying international customary law in actual cases in Ukraine. Participants also discussed how to apply modes of liability to international crimes under the Criminal Code of Ukraine, and the importance of taking victim-centred, gender-sensitive, and child-sensitive approaches in adjudicating war crimes cases. 

The program further included interactive sessions on how to draft well-reasoned judgments in international crimes cases. Experts shared with participants guidance on judgment drafting for the adjudication of war crimes cases in Ukraine based on international best practices, covering issues related to presenting evidence and factual findings related to the crimes prosecuted under Article 438 of the Criminal Code, as well as findings on legal elements of international crimes and modes of liability, defences. 

The training built upon the Benchbook on the Adjudication of International Crimes under Ukrainian Domestic Law developed by international and Ukrainian experts in collaboration with judges and with support from the USAID Justice for All Activity. All training participants were provided with a printed copy of the Benchbook.  

Training conclusion

 

We are dedicated to supporting government entities and international organizations engaged in the complex task of prosecuting and adjudicating international crimes.  
  
Our purpose is clear. We aim  to build the capacity of legal systems and institutions to use international law to effectively pursue justice against perpetrators.  
  
Our approach is multifaceted and adaptive. We engage in needs assessments, case-mapping, and research to tailor our support to the specific requirements of each partner and contribute to the design and coordination of legal strategies.  

 

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.