ASP18 Side Event: Accountability for International Crimes Committed Against Ethnic Minorities in Myanmar: Discussing Complementary Avenues for Justice

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 4 (5 December 2019)

Name of the Event: Accountability for International Crimes Committed Against Ethnic Minorities in Myanmar: Discussing Complementary Avenues for Justice (Side Event co-hosted by Canada, Liechtenstein, the European Center for Constitutional and Human Rights, The Global Justice Center, The Global Centre for the Responsibility to Protect, the Women's Initiatives for Gender Justice)

Overview by: Erez Roman, Junior Research Associate PILPG-NL

Main Highlights:

• Several panelists mentioned the scope of suffering in Myanmar and that along with the Rohingya minority group, other minority groups have suffered harm.

• Most panelists applauded the case brought before the International Court of Justice by the Gambia but they reminded participants that more has to be done nationally and internationally.

Summary of the Event:

The event began with the moderator, H.E. Mr. Christian Wenaweser, Permanent Representative of the Principality of Liechtenstein, introducing the panelists.

The first panelist, Dr. Priya Pillai, international lawyer & consultant; head of the Secretariat of the Asia Justice Coalition, spoke about the legal aspect of the situation at hand and focused on the case between the Gambia and Myanmar before the International Court of Justice (ICJ) and the legality of the procedures before it regarding the Rohingya crisis. Dr. Pillai praised the Gambia for bringing the case before the ICJ but questioned reasons for which other states did not do so.

The second panelist was Tun Khin, Founder & President of the Burmese Rohingya Organization UK. Mr. Khin spoke briefly about his experience as being Rohingya and shared some of his stories. Regardless of the tragedies that the Rohingya minority suffered, Mr. Khin stated that the group is not looking for revenge but for justice to be served. Moreover, Mr. Khin was optimistic and said that the case brought before the ICJ suggests that the wheels of justice are moving. He expressed hope that the case will create pressure to stop the perpetrators of horrific acts.

The third panelist was Andreas Schüller, Program Director International Crimes and Accountability of the European Center for Constitutional and Human Rights (ECCHR). Mr. Schüller spoke about the role of law in Myanmar and mentioned that substantial amount of progress has been made in the last 15-20 years. Nevertheless, he reiterated the importance not only of justice being rendered but also its appearance and translation to the national people in Myanmar.

The fourth panelist was Shireen Huq, Founder of Nariphokko, who reiterated the important role played by ethnic differences in the current crisis regarding not only the Rohingya minority but other minorities as well. Furthermore, she tied this issue with the lack of inclusion of ethnic differences in certain agreements which followed the unrest that was taking place in the country. Nevertheless, Ms. Huq stated that although certain improvements are visible, they are not sufficient and further actions need to be taken. Ms. Huq concluded her speech by calling for pressure to be placed on the UN Security Council to take official actions to halt the horrific scenes.

The fifth panelist was Razia Sultana, Rohingya Lawyer and Founder of the Rohingya Women Welfare Society. Ms. Sultana spoke about the sexual violence committed by the armed forces mainly against the Rohingya group but also different minorities and emphasized the wide scope of the crimes committed. Ms. Sultana also mentioned the recent democratic transition in Myanmar and voiced her opinion that many changes still need to be made.

The last speaker was Akila Radhakrishnan, President of the Global Justice Center. Ms. Radhakrishnan spoke about the work of Global Justice Center. She mentioned research she undertook which included conversing with different groups of people including border guards responsible for the border between Myanmar and Bangladesh. After mentioning her research, Ms. Radhakrishnan praised Bangladesh and the international community for their actions, however she also stated that these are not sufficient to end all the suffering in Myanmar.

Following the speeches given by the respected panelists, the moderator gave the floor to the audience to ask questions. One of the questions regarded the role of the UN Security Council and why more attention is not placed on investigating the Rohingya crisis though the UN Security Council. Furthermore, a question regarded the possibility of creating a state for the Rohingya. The panelists answered these two questions by stating that due to political reasons, approaching the situation at hand through the UN Security Council would be difficult to almost impossible. As for the second part, the panelists suggested that at the moment, it is more important to end the suffering.

ASP18 Side Event: Colombia: the role of the ICC in the context of an unfinished transition

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 3 (4 December 2019)

Name of the Event: Colombia: the role of the ICC in the context of an unfinished transition (Side Event co-hosted by Avocats Sans Frontieres – Canada, the Coalition for the International Criminal Court (CICC), Comisión Colombiana de Juristas, Colectivo de Abogados Jose Alvear Restrepo, Sisma Mujer, Colombia Diversa, Corporacion Humanas).

Overview by: Leonore ten Hulsen, Junior Research Associate PILPG-NL

Main Highlights:

The transition to justice in Colombia is not yet completed. The panelists underlined the important role of the ICC in this transition. They asked the ICC to continue with its preliminary examination, including determining whether proceedings carried out in Colombia are genuine, as well as to continue with the dialogue with different national authorities. The ICC has functioned as a shield to protect some of the institutions created as part of the peace agreement that are now under attack by several stakeholders at the national level. The involvement of the ICC is an aid in striving to justice for victims and the fight against impunity of responsible actors in Colombia.

Summary of the Event:

This event in Spanish focused on transnational justice in Colombia, both through local and international means.

The first speaker talked about delayed justice for victims of crimes committed 15 years ago. He noted that the true transition to justice in Colombia is not yet completed. There has been continued political violence in Colombia, and certain regions endure the continuation of the internal armed conflict. These actors continue to commit violent crimes including attacking social leaders. In the last 3 years, the situation has worsened. Last year, 123 cases of violence against human right defenders were documented by the UN. The first speaker noted that each day a human rights defender is killed in Colombia and that these extrajudicial executions are very worrisome. Secondly, the speaker noted there has been an increase in sexual violence. There are 127 cases of sexual violence recorded in Colombia this year. There is presently a lot of impunity. The speaker argued that there is some progress towards justice, but it is small if one looks at the conflict at large. Moreover, there are state actors that were perpetrators who are still commanding armed forces, which makes it difficult to bring them to court. A review of the current judicial mechanisms is necessary, the speaker concluded. The most important crimes are committed against human rights defenders. Moreover, the Special Jurisdiction for Peace is still recent. Therefore, it was noted that the ICC should continue its assessment on whether the proceedings are genuine and make sure that the alleged crimes committed after the peace agreement are also investigated and prosecuted.

The second speaker continued to note that there is a lot of impunity in the Colombian armed conflict which the ICC and the international community could address. Especially women, LGBTQ and indigenous communities are vulnerable. In a large number of cases concerning LGBTQ victims, perpetrators do not face punishment. The seriousness and lack of resources should be taken into account by the ICC. The perpetrators carry a responsibility over their actions that should not be forgotten. The speaker underlined that a preliminary examination is very important as justice should be strived for.

The third speaker referred to the fact that a lot of the violence against women in Colombia is linked to the armed conflict. Civilians are experiencing sexual violence committed by armed groups. The conflict is about the control of regions and there is a series of human rights violations as a result of this conflict. The link between sexual violence and armed violence has already been seen in previous cases at the ICC. However, the international standards as well as the ICC’s jurisprudence on this issue have not been implemented at the national level. This has resulted in the exclusion and inadequate protection of victims of sexual violence. Positive complementarity is essential for the adoption and implementation of these standards in the national legal framework, the third speaker highlighted.

The fourth speaker stated that there has been an incomplete transition of justice so far. Most victims never saw justice and a large group of the victims is part of the LBGTQ community. The fifth speaker continued by speaking of the fact that an armed conflict has been ongoing in Colombia for many years and that the ICC’s Office of the Prosecutor started its preliminary investigations in 2004. The speaker noted that looking at the crimes committed since that time, there are still situations of absolute impunity. There should be complementarity if the ICC were to assist Colombia in its efforts towards justice. It is still too early to know the results of the Special Jurisdiction for Peace. It was stated that the preliminary examination should continue and should include the alleged crimes committed by high-ranking officials and third parties that have not been recognized as perpetrators.

Impunity means that there has been a preliminary examination, but the perpetrators still need to be prosecuted. A complete transition to justice requires true results that proof success with court outcomes. What has been achieved in the past 15 years against impunity?

The audience posed a question on the role of corruption in relation to the crimes committed in Colombia. The speakers answered that this is one of the aspects of the bigger picture that needs to be taken into account when striving for transitional justice. Moreover, (international) law enforcement collaborations are important to address a macro level of criminality. In any proceedings of transnational justice, there must be accountability.

ASP18 Side Event: In the Aftermath of ISIL: Community Hearings for Gender-Based Violence Survivors and their Communities in Iraq

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 5 (6 December 2019)

Name of the Event: In the Aftermath of ISIL: Community Hearings for Gender-Based Violence Survivors and their Communities in Iraq (Side Event co-hosted by Canada and MADRE)

Overview by: Signe Wolf Børm, Junior Research Associate PILPG-NL

 Main Highlights:

• Community hearings are necessary to reintegrate victims of crimes committed by Daesh into their communities, as well as to increase awareness and to prevent similar events from occurring in the future.

• The Iraqi people are dissatisfied with the leaders of ISIS being prosecuted for their membership of the organisation, rather than for the specific crimes against the people.

Summary of the Event: 

Lisa Davis opened this side event on community hearings for survivors of gender-based violence in Iraq by underlining the necessity to achieve justice for the victims of Daesh. She stated that women need to be recognized and have their stories heard. Having a public hearing will assist in building support for criminal trials in the future, and encourages the reintegration of the victims of gender-based crimes and sexual assault. Lastly, Ms. Davis stated that accountability does not need to start in the Hague and that community hearings can promote stability and reintegration.

Renja Alaaldin, Iraqi advocate for MADRE, explained that MADRE started its project on justice and accountability through community hearings, because it believed people want truth and reconciliation, and because community hearings can be helpful in raising awareness, increasing public recognition, and to promote accountability.

Lisa Davis, associate professor of law at the University of New York; Co-Director of the Human Rights & Gender Justice Clinic; and senior legal advisor for MADRE, explored how community hearings can bring about peace, accountability, and reconciliation. She stated that the current situation in Iraq is characterized by a great civil dissatisfaction relating to accountability, jobs, and the killings of protesters. She noted that the people of Iraq want accountability for the crimes committed by ISIS. The Organization of Women's Freedom in Iraq (OWFI) has documented hundreds of sexual and gender-based crimes and handed over documentation to the ICC and the Office of the Prosecutor. The documentation has been stored by evidence collecting bodies such as the United Nations Investigative Team to Promote Accountability for Crimes Committed by Daesh/ISIL (UNITAD) and the International, Impartial and Independent Mechanism for Syria (IIIM). Ms. Davis highlighted the importance of accountability, justice, and for victims and survivors to have a chance to tell their stories. For the situation as it is, community hearings provide for reconciliation, the start of a healing process, and an opportunity to understand the greater picture of the conflict. Ms. Davis explained that these proceedings allow taking account of the events that have taken place within the country, allow academic and policymakers to consider the root causes of the conflict, which laws are lacking, as well as, to consider what the community needs to satisfy the needs of the individuals displaced due to the conflict.

Ms. Davis went on to state that there is a problem with the reintegration of women living under ISIS. This is because the association with ISIS makes reintegration into their communities almost impossible. A community hearing, however, could allow communities to understand the issues and allow for reintegration, as history in this context has taught us that tribunals have worked, and therefore also can work in Iraq. Ms. Davis lastly urged to act now, because of the risk of the cycle of violence repeating itself. 

Yanar Mohammed, president of the organization Women's Freedom spoke next. Ms. Mohammed discussed the situation of women enslaved by ISIS, explaining that these women were left without homes and family because they are shamed by their communities as a result of their forced marriages, and the children they gave birth to as a result of rape within the forced marriages. She stated that women should not have to live with this shame, they should be reintegrated into their communities, and in doing so, know that the future of their children is also secured. Ms. Mohammed noted that the international community should put a system in place and that this goal could only be ensured if the community is willing to recognize, respect, and support the women, as the women find themselves in a situation in which they are losing their wellbeing and their health altogether. A community hearing could be capable of ensuring survivors of these crimes to not have to hide anymore because they will be recognized, and it will turn them into a survivor in the eye of the community rather than a co-perpetrator. Such a hearing should furthermore lead to women affected receiving reparations to ensure that they can provide for their children and their future. A community hearing is moreover a step toward preventing the same acts happening again in the future - but this requires recognition first.

Agnes Callamard, UN Special Rapporteur on extrajudicial, summary or arbitrary executions spoke last and in an eloquent manner told the audience about the observation she had made on the matter. Ms. Callamard had visited Iraq right after the end of the war in 2017, when she realized that little attention was given to justice and reparations but even less attention was given to the victims, who will rarely speak in a trial. It was furthermore pointed out that the ongoing trials against the leaders of ISIS are based on their membership of the organization (which if they are convicted will lead to a death sentence), but not on the specific atrocities committed against civilians and particularly women.

Ms. Callamard noted that there about 170 mass graves in Iraq related to the recent war crimes. There are many more graves however and there are stories that come with all of them, but so do the Daesh soldier currently detained in the Iraqi prisons. The stories being told now, Ms. Callamard said do not to give the closure necessary. The justice necessary for the people in Iraq, as well as Syria, has not been prioritized by their governments nor the international community, she noted. Ms. Callamard clarified that it was not only the Yazidi women, but similar situations applied to Shia, Suni, and Christian women, who have not come forward to tell their stories yet because they have not been given the space to do so. These women should be enabled to tell their stories and in the current climate, civil society will be the main actors towards promoting justice. Ms. Callamard stated in regard to community hearings that they are not capable of replacing formal justice, but that these are necessary to start breaking the current system and the lack of care for justice. She concluded that civil society will be a key factor in doing so. She further mentioned that the Iraqi people are not satisfied with the current form of justice being done, as it was expressed that, killing ISIS leaders without trial is not good enough. Ms. Callamard explained that people recognize that community hearings will allow the truth to be spoken, which in turn will allow communities to better understand and reintegrate victims. To conclude Ms. Callamard noted that “this has been the decade of impunity. Embarking on a new decade next year, I am asking everyone to make the next decade the one of accountability.”

ASP18 Side Event: Turning Challenges into Opportunities: Rethinking the UN and Civil Society Cooperation towards accountability in Syria and Myanmar

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 5 (6 December 2019)

Name of the Event: Turning Challenges into Opportunities: Rethinking the UN and Civil Society Cooperation towards accountability in Syria and Myanmar (Side Event co-hosted by the Netherlands and Switzerland)

Overview by: Francisca De Castro, Junior Research Associate PILPG-NL

Summary of the Event:

This panel discussion on UN and Civil Society cooperation towards accountability in Syria and Myanmar was moderated by Nynke Staal, legal officer of the Ministry of Foreign Affairs of the Netherlands. Ms. Staal first noted that the name of the event reflects the situation perfectly, since a couple of years ago there was just hope that the situation in Syria would be referred to the ICC, and as the call is still there, in the meantime, the international community established accountability mechanisms like the International, Impartial and Independent Mechanism (IIIM) for Syria. 

Ms. Staal touched upon several challenges the IIIM faces. During expert meetings, it became evident that there was a clear need for building trust between the international and Syrian community as after all these years civil society had lost trust. Communication was needed. The Netherlands and Switzerland organized meetings between Syrian civil society and the IIIM to see which relationships needed to be built. A second challenge of the IIIM was the clarification of its purposes and to manage expectations. This process continues to this day and has resulted in a protocol. Dialogues on specific issues continue, but one of the results the IIIM has taken upon itself is to take a victim centered approach. 

Ms. Catherine Marchi-Uhel, head of the IIIM, talked about the necessity of the IIIM and the challenges it faces. She stated that professionals in the international community have a certain prejudice that civil society doesn’t speak the same diplomatic and technical language and that they have unreasonable expectations. National organizations sometimes forget that international NGOs are at the forefront of shifting the attention of the international community through information and advocacy. Ms. Marchi-Uhel stated that international civil society organizations and national organizations are not mutually exclusive, they are in clear need of one another. CSOs role was not limited to documenting the atrocities, they play a critical role placing crimes in the relevant contexts. They provide feedback on lessons learned which proved extremely useful to the IIIM. The IIIM’s mandate focuses on filling gaps in targeted investigations and it assists courts and tribunals which prosecute or may prosecute in the future. Ms. Marchi-Uhel reminded participants that the IIIM can only assist prosecutions within jurisdictions that respect due process and human rights. She said that domestic jurisdictions are doing the utmost to make use of all possibilities for justice, including using universal jurisdiction to prosecute higher-ranking officials.

Mr. Refik Hodzic, communications advisor for the Independent Investigative Mechanism for Myanmar (IIMM), explained how his job is illustrative of the commitment to building the relationship between civil society and professionals of the international community. He was brought to the mechanism to try to conceptualize the strategy of engagement with civil society. Many lessons are to be learned from the IIIM. Around 80%-90% of efforts are currently made to populate the institution with staff that could competently carry out the mandate. Mr. Hodzic said that the crucial role of civil society plays is evident. It is unfolding in the context which is very challenging on various fronts. However, there are many other external challenges that impact the capacity of the mechanism to build a constructive relation with civil society. Mr. Hodzic mentioned that the IIMM focuses on establishing substantive relationships with people who are most affected by the success of the institution. Those people are also the main source for evidence collection. One of the challenges for the IIMM is the situation in Bangladesh. The possible repatriation of refugees in Bangladesh towards Myanmar means that witnesses might become inaccessible to the mechanism. Mr. Hodzic furthermore said that a problem for the victims is that they have to provide their testimonies continuously, to different organizations, without knowing what is being done with the information. The IIMM is thinking of ways to show results to those testifying so that progress can be followed. Mr. Hodzic mentioned how this can also give victims a space for advocacy for as they have the feeling that their work matters.

Mr. Christian Mahr, director of external operations at the ICC Registry, talked from the viewpoint of the Court. He highlighted the importance of victim participation and cooperation between civil society and the organs of the Court. He said that cooperation does not not only mean getting the victims to talk about their situation, but also bringing the Court outside of The Hague and into the field. He emphasized that during the preliminary examination stage, it is about trying to find partnerships with civil society to find credible information as to open an investigation. He highlighted that the ICC provides retributive and restorative justice (through the TFV) which is why this contact is important not only in the preliminary examination stages but also during and after potential trials. 

The last two panelists to intervene where Mr. Mazen Dawish from the Syrian Center for Media and Freedom of Expression and Ms. Razia Sultana, chairperson of the Rohingya Women Welfare society, who spoke about their experiences as both victims and members of civil society groups. Mr. Dawish was rejoiced to see that there is an increasing respect for civil society and acknowledgment of partnership between civil society and international institutions working towards accountability. He noted that the work of the IIIM has helped to create a partnership based on trust and cooperation. From the civil society viewpoint, he mentioned that civil society was at first reluctant to work with the IIIM because they feared that the IIIM would take resources in Syria without truly accomplishing anything. But he was rejoiced that cooperation with the IIIM bore its fruits. He said that the partnership has helped to increase civil society’s knowledge and professionalism, and it has helped the IIIM to better understand the needs of civil society, and thus being able to give more specific help. He noted that civil society remains to face some challenges, like expanding their tools and partnering with the right organizations that have the potential to be useful in achieving justice. Ms. Razia Sultana, talked about the dire conditions of women in refugee camps in Bangladesh, and how they are still being persecuted as women. In fact, reports have shown that there is systematic rape happening to the Rohingya. She said that victims want the criminal justice system to repair the harm that has been done to them, like the restoration of citizenship that was taken from them, and that only through the exchange with organs like the IIMM can they truly tell their story and help the international community understand their needs. 

ASP18 Side Event: Establishing Reparative Justice for Victims of International Crimes in Africa

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 5 (6 December 2019)

Name of the Event: Establishing Reparative Justice for Victims of International Crimes in Africa (Side Event co-hosted by Ireland and the Institute for Security Studies)

Overview by: Andreina De Leo, Junior Research Associate PILPG-NL

Main Highlights:

• Presentation of the Report Reparative justice: an afterthought in accountability for international crime.

• Discussion on the main shortcomings and challenges of the current reparation framework for victims of international crimes

Summary of the Event:

The side event began with an opening remark by the Ambassador of Ireland to The Netherlands, Kevin Kelly. He emphasized that the topic of the event is of vital importance for Ireland. Indeed, he mentioned that the Irish government contributes to the Trust Fund for Victims (TFV) as it believes in the necessity of supporting victims in their quest for justice and the need of states to take their responsibilities seriously in this regard.

The chair of the event, Allan Ngari, Senior Researcher at the Institute for Security Studies (ISS), opened the discussion. He first presented the report he co-authored on the topic, titled Reparative justice: an afterthought in accountability for international crime, which analyses different methods for redressing victims of international crime. He stressed that an underlying problem of reparative justice is that states often do not consider reparation as part of accountability, but rather focus solely on prosecution, which may be problematic in terms of victims’ rights and their participation in the proceedings. He then introduced the panelists.

The first speaker, Judge Marc Perrin de Brichambaut, Second Vice-President of the International Criminal Court, reflected on the ICC’s approaches to reparative justice, in light of three cases: Katanga, Lubanga and al-Mahdi. In this regard, he recalled that the burden of reparation lies with the convicted person, that the identification of the victim and the determination of the harm is a judicial consideration and that victims have the right to participate in the proceedings. He also stressed that the legal role of the TFV is now clear: framing a Draft Implementation Plan for the approval of the Trial Chamber. However, implementation may lead to difficulties in certain situations, in particular in active or recurring conflict areas. Indeed, he emphasized that, even though a machinery for reparations has been put together, it is not entirely set up and there is still a long way to go to effectively deliver reparative justice to victims of international crimes. In this regard, challenges include the difficulties of the process of identification, as well as protection of vulnerable victims and the relationship between collective reparation and individual rights. In this context, it is particularly important to take the time to listen to the victims’ preferences concerning their expected form of reparation, which is usually monetary compensation, but at the same time managing expectations and convey the message that in certain situations it is just not feasible. He concluded his intervention by stressing that the biggest limit to the delivery of effective reparative justice lies in the fact that reparation is only considered after a conviction. He finally suggested that a fertile ground for solving shortcomings could be exploring the relationship between the reparations and the assistance programs of the TFV, with the idea of starting to prepare reparations on the ground from the very beginning of the procedure. 

The second speaker, Dr. Steven Kayuni, Advocate of the High Court of Malawi and ISS Consultant, also focused on the shortcomings of the reparation frameworks for international crimes and on the necessity to have an honest discussion about what is effective and what is adequate not to fail the expectations of the victims. He underlined that states have the main responsibility when it comes to deliver justice for victims and that the responsibility to repair should be conceived as a corollary of the principle of responsibility to protect. He also agreed with Judge Marc Perrin de Brichambaut in prospecting a change in thinking on the structure of the process of reparative justice, whereby reparations should be assessed at the beginning of the case, and not only after a conviction. Indeed, he stressed that acknowledging that people have suffered should be separated from convicting perpetrators. He suggested to introduce the idea of complementary reparations based on working with national institutions to provide redress for victims.

These two interventions were followed by a discussion. Pieter de Baan, Executive Director of TFV, underlined the challenges posed by the fact that victim participation is usually taken on by the heads of households, rather than by all members of the family, which excludes women from participation and Dr. Julie Fraser, Assistant Professor at Utrecht University and affiliated expert with PILPG, reflected on the adequacy of putting too much emphasis on ICC’s reparations. She questioned whether it may not be more appropriate to focus on a state’s human rights obligation, rather than individual criminal liability with regard to reparations. Furthermore, it was also noticed that reparation programs should be accompanied by the enhancement of governmental actions to ensure that victims receive appropriate redress. For example, the ministries of health could be supported in setting up clinics capable of delivering long-term support to traumatized victims.

Finally, Philipp Ambach, Head of Victims Participation and Reparations of the ICC, reflected once again on the importance of managing expectations. Alongside some of the shortcomings discussed, he mentioned that the lack of a direct liaison between the Registry and the victims’ community, as well as the limited information regarding the functioning of the Court, may lead to disappointments and misunderstandings concerning reparations, which needs to be taken into account and reflected upon.