International Law Update – The Conflict in Yemen, the International Criminal Court, and the Srebrenica Massacre

Yemen

Human Rights Watch called for the release of Yemeni activist Hisham al-Omeisy, whom Human Rights Watch claims has been detained by Houthi authorities. Human Rights Watch states that al-Omeisy was arrested by 15 officers on 14 August 2017 in Sanaa. They claim he has not been charged, brought before a judge or given access to a lawyer or his family, and that he is in an undisclosed location. Amnesty International has made a similar statement.

This follows 66 cases of arbitrary detention and enforced disappearances perpetrated by the Houthi forces, and many by the Yemeni government, as documented by Human Rights Watch. Arbitrary detention and enforced disappearances are both breaches of international human rights law.

There has been conflict between Houthi separatists, loyal to the former President, Saleh, and the Yemeni government led by Saleh’s former Deputy, Hadi, since 2015. A coalition of Sunni states, led by Saudi Arabia and backed by the USA and the UK, have joined with Yemeni government forces to lead airstrikes against the Houthis, who hold much of the south of Yemen and the nation’s capital, Sanaa. Saudi Arabia has alleged that the Houthi forces, who are Shiite, are backed by Shiite Iran, a claim which Iran has denied.

The conflict has resulted in an already poor nation plunging into a deep humanitarian crisis, with both famine and cholera ravaging civilians. Houthi forces have closed Sanaa airport, making it difficult for aid to reach Yemenis, and Saudi-led airstrikes on ports have restricted the supply of food.

Hisham al-Omeisy used social media to expose the conflict and humanitarian crisis in Yemen, having risen to prominence during the Arab Spring that ousted Saleh. He was highly critical of the Saudi-led coalition, making his arrest and detention by the Houthi forces somewhat surprising.

ICC

Earlier in July, Georgia signed a cooperation agreement with the ICC. This agreement builds upon Georgia’s ratification of the Rome Statute in 2003, providing clear channels of communication between the government and the ICC. The aim is to allow the ICC to expeditiously fulfil its mandate to investigate crimes within its jurisdiction that allegedly occurred between 1 July and 10 October 2008 in South Ossetia.

On 6 July 2017, Pre-Trial Chamber II of the ICC decided that South Africa failed its obligations under the Rome Statute by not arresting and surrendering Omar Al-Bashir, the President of Sudan, when he visited the country in June 2015. The ICC has issued arrest warrants for Al-Bashir for five counts of crimes against humanity, two counts of war crimes, and three counts of genocide. However, the Court chose not to refer South Africa to the UN Security Council. The ICC’s arrest warrant for Al-Bashir has been widely criticised in Africa and the Middle East.

Srebrenica Massacre

On Tuesday, 26 June 2017, The Hague Appeals Court held the Netherlands liable for 30% of the losses suffered by the families of the victims of the Srebrenica Massacre, and thus liable to pay compensation to the victims’ families. This decision upholds a 2014 decision that the Netherlands was partially responsible for the Massacre, However, this new decision quantifies the responsibility. A compensation amount has not yet been determined.

The Srebrenica Massacre was the genocide of 8,000 Bosnian Muslim men and boys that took place during the war surrounding the breakdown of the former Yugoslavia. The decision by the Court held the Netherlands partially responsible for the deaths of the 350 Bosnian men who were killed after being expelled from a Dutch-controlled UN base after it was overrun by Bosnian Serb troops. The Court held that the Dutch peacekeepers ought to have known that the men seeking refuge who were expelled from the compound were “in real danger of being subjected to torture or execution”, making them responsible for that set of deaths. The Dutch defence ministry has maintained that the Bosnian Serb troops are entirely responsible for the Massacre. This case is highly unusual because the performance of peacekeepers rarely results in the responsible state facing legal action.

The group Mothers of Srebrenica criticised the decision, arguing that the Netherlands should be held entirely responsible. The ruling can be appealed to the Supreme Court.

A Tug of War between National Security and UN Security Council Resolutions – Deniz Kayis

In December 2015, Australia’s Federal Parliament amended the Citizenship Act 2007 (Cth) (“Citizenship Act”) to add avenues by which dual citizens could lose their Australian citizenship for terror-related conduct. Much of the commentary on the amendments has focused on the justifications behind the legislation, and the implications for Australia’s compliance with international human rights. Less commentary has focused on how the new provisions interact with, and likely contravene, Australia’s international security obligations.

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