20TH SESSION OF THE ASSEMBLY OF STATES PARTIES
8 December 2021
Name of the Event: Specialized Units for Investigating and Prosecuting International Crimes and Crimes of the Past: Efforts for Addressing Impunity for Crimes in Syria (Co-hosted by: International Center for Transitional Justice (ICTJ), France, Germany, the Netherlands)
Report by: Lilian Srour, Junior Research Associate PILPG-NL
Highlights:
There has been an increase in successful accountability efforts through national specialized units. Panelists shared experiences and the positive impact of specialized units for investigating and prosecuting international crimes in Europe, for instance in France and Germany.
Nonetheless, many remaining challenges need to be addressed, particularly in relation to the adequate protection of victims and the facilitation of cooperation and information exchange.
Speakers:
Anna Myriam Rocatello, Deputy Executive Director and Director of Programs of the International Center for Transitional Justice (ICTJ)
H.E. Matthew Neuhaus, Ambassador of Australia to the Netherlands
Howard Varney, Senior Program Advisor ICTJ
Amelie Bequart, France
Ibrahim Al-Kasem, Executive Director of Caesar Families Association
Dr. Katarzyna Zduńczyk, Senior Researcher at the Foundation for Human Rights in South Africa
Carlos Castresana Fernández, Public Prosecutor at the Court of Auditors of Spain
Alexandra Lily Kather, Legal Advisor at DIGNITY
Summary of the Event:
Anna Myriam Rocatello opened the event by introducing the latest research conducted by ICTJ (Report “Gearing Up the Fight Against Impunity. Dedicated Investigative and Prosecutorial Capacities” to be published in December 2021), which analyzes several specialized units for the investigation and prosecution of international crimes. ICTJ hopes its research will assist states in the implementation of the complementarity principle and strengthen efforts to investigate and prosecute international crimes. H.E. Matthew Neuhaus expressed his gratitude for the work of ICTJ and for convening this event, outlining that the event focuses on the investigatory phase, the impact on the victims and the accused, and the meaning and challenges of accountability for crimes in Syria. He commended efforts to advance accountability through national jurisdictions, noting that this is a fundamental aspect of the Rome Statute, and in particular referred to the recent landmark trial in Germany. With the support of UNITAD, a German court found a former IS member guilty of genocide against the Yazidi religious minority. According to Neuhaus, this shows “how universal jurisdiction can be leveraged by specialized units to seek accountability for such crimes.’’ He emphasized the importance of continuing work towards accountability, especially in dire situations such as in Syria, and commended the ICTJ and Foundation for Human Rights for their leadership on the issue of seeking accountability through the use of universal jurisdiction.
Next, the floor was given to the panelists and contributors to the ICTJ report. Howard Varney, Senior Program Advisor ICTJ and co-author of the report, highlighted the importance of producing research on specialized units. He discussed the main findings of the report, explaining that specialized units are effective due to their ability to concentrate and centralize national efforts under one organizational entity, helping facilitate coordination and clear lines of responsibility. Specialized units foster closer cooperation between investigators and prosecutors, and he underlined their abilities in engaging in international cooperation, information exchange, and the implementation of best practices. Turning to specialized units and their role in ensuring accountability for Syria, Varney noted that there are 22 ongoing or completed cases concerning crimes committed in Syria. Whilst most specialized units are still in early stages of development, some emerging best practices can be identified, such as close collaboration with immigration services to help identify suspects, the establishment of units under law or statute rather than executive action, and the importance of signing cooperation agreements with CSOs to clearly delineate responsibilities and to regulate cooperation. Lastly, Varney suggested that regular roundtables should be held with CSOs to enhance the sharing of information and knowledge.
Amelia Becquart, shared experiences from the Central Office to fight Crimes against Humanity, Genocide and War Crimes in France, explaining that the office cooperates with other institutions in several ways. For instance, judges and prosecutors can refer a matter to the Office. Furthermore, she referred to a law from 2015, which introduced informational exchange, allowing prosecutors to be informed about rejected asylum applications and the reasons for their rejection. In relation to international cooperation, Becquart noted that France has positive experiences with mutual legal assistance in relation to Joint Investigation Teams (JIT), thanks to the EU. She also underlined the recent signing of a convention on judicial cooperation between France and the IIIM, allowing for reciprocal information and communication, which had not been possible previously.
Next, Anna Rocatello welcomed Ibrahim Al-Kasem, Executive Director of Caesar Families, asking him to share his thoughts on progress regarding impunity for crimes committed in Syria, and to elaborate on any advantages or instances that give him hope regarding the situation. Lastly, she also posed the question of what civil society can collectively do to encourage states parties to promote and achieve more specialized units, better cooperation, and ultimately the satisfaction of victims. Al-Kasem thanked everyone for their participation, and ICTJ for its efforts addressing the situation of Syria. Noting that what is happening in Germany shows the fruits of cooperation amongst different units, he commended France and Germany for the issuance of arrest warrants against Ali Mamlouk, a high-ranking official in Syria. Al-Kasem then discussed challenges, such as the number of victims that have suffered in proportion to the ongoing accountability efforts. Further, he emphasized that many specialized units experience difficulty in the collection of evidence, leading to reliance on evidence from victims, which can result in retraumatization if not handled appropriately. He emphasized that victims need to be adequately informed about their role when submitting evidence, and that they also need effective protection, describing examples of victims who have become endangered because they have provided evidence to NGOs, and other bodies, without receiving appropriate protection.
The floor was then given to Katarzyna Zduńczyk, co-author of the report, who elaborated on numerous findings of the research, providing examples of several units ranging from “historical units’’ to “mixed-mandate units.’’ ICTJ’s research has shown that no clear pattern can be identified when it comes to the structure, operation, and composition of specialized units. She made note of the JIT of Germany and France in investigating crimes in Syria as an emblematic example. She also discussed the relationship between CSOs and specialized units, explaining that sometimes this relationship can be established through law.
Alexandra Lily Kather, sharing her practical experiences from the field as a consultant for multiple accountability actors, including civil society organizations (CSOs), noted that we are increasingly seeing the specialization of war crime units, as well CSOs in this line of work, as well as the criticism surrounding this. She stated that we are at a crossroad and should “take a realistic stock of what this line of work entails’’, and of how the work of CSOs is responding to some of the limitations that war crime units experience, for instance through facilitating contact with witnesses. Kather also noted the significant work of international organizations such as UNITAD, underlining that the German case referred to by H.E. Matthew Neuhaus would not have been possible without UNITAD’s support.
The last speaker, Carlos Fernández, emphasized the importance of specialized units in relation to the principle of complementarity, as they provide for the willingness and ability to address impunity. After sharing his views and thoughts on the Pinochet case, he explained that when faced with structural impunity, many are interested in preserving situations of impunity. To counter this, he stated, the establishment of a strong coalition, closely connected with the media, is required to initiate change. He concluded by noting the importance of specialized units being operated by experienced professionals in this field.