Side Events: 16th Assembly of States Parties | Minding the Gap: Progress in Drafting a Convention on the Prevention and Punishment of Crimes Against Humanity

By Victoria Ernst, PILPG Research Associate

This afternoon’s panel discussion was moderated by Professor Sean Murphy, Special Rapporteur on Crimes Against Humanity and member of the International Law Commission (ILC). Panelists included: Professor Charles Jalloh, also a member of the ILC; Professor Claus Kress, Director of the Institute for International Peace and Security Law at the University of Cologne; Judge O-Gon Kwon, President of the ICC; Professor Leila Sadat, Director of the Whitney R. Harris Law Institute and Special Advisor on Crimes Against Humanity to the ICC Prosecutor; and Solomon Sacco, senior legal advisor for Amnesty International. 

Sean Murphy began the discussion with an overview of the process that led to the first draft of the convention. The ILC launched the project in 2014 and the first reading was completed and opened for comment this past summer. The draft convention consists of a preamble, 15 draft articles, and an annex. Comments will be accepted from states and NGOs through December 2018, and the Commission will submit a new report in early 2019, taking comments into account. The Commission plans to have a second and final completed draft by summer 2019, and shortly after to recommend adoption of the convention by the general assembly. The first draft of the convention can be found on the ILC website in the Commission’s 2017 report. Both members of the ILC on the panel, as well as the Amnesty International representative, called on audience members and the entire international community to submit comments. 

Mr. Murphy also reiterated the need for a convention on crimes against humanity. He stressed that such a convention is not redundant. The ICC focuses on investigating and prosecuting crimes in The Hague, but there is still a need for national level prosecution and increased international cooperation in areas such as extradition. He mentioned that 50% of UN states have no national statute on crimes against humanity, including a third of State Parties to the Rome Statute. The Rome Statute does not require national legislation but incentivizes doing so. Mr. Murphy further noted that even states that do have national legislation on crimes against humanity, do not have legislation in line with the Rome Statute. He cited the fact that many national statutes on crimes against humanity were adopted in the 50’s, 60’s, and 70’s, long before the Rome Statute. One major gap in national legislation across states is that states typically only have jurisdiction if the crime is committed in their own territory or by one of their nationals. Few states have jurisdiction to prosecute individuals present in their territory that do not meet those jurisdictional elements. Addressing this gap is one of the major goals of the convention. 

Next, the discussion was opened to the other panelists, starting with Professor Jalloh. Mr. Jalloh recognized the achievement of the Commission in completing the first draft in only three years. He also stressed the need for a convention on crimes against humanity to fill the gap in international and national prosecution for atrocity crimes. He noted the existence of conventions on genocide and war crimes and the lack of something similar to guide states in prosecuting crimes against humanity. In his opinion, the most significant developments in the convention related to extradition, mutual legal assistance, and the rights of victims. He recognized the difference in transnational prosecution of economic versus atrocity crimes. He hopes the provisions on mutual legal assistance will help address these gaps. He noted that three elements were not included in the first draft: a monetary mechanism, a prohibition on immunity for state officials, and a prohibition on amnesties. He admitted that he wanted all three included, but ultimately the Commission chose not to include them. The monetary mechanism was left out because the Commission perceived this as a political rather than legal issue. Immunities and amnesties were excluded because the Commission determined there was insufficient state practice to address them. 

Professor Kress spoke next. Mr. Kress highlighted the significance of the dispute resolution mechanism in the draft convention. He sees this as a positive development that will allow broader review of legal issues. He used the Bosnian cases as an example. He noted that the crime of genocide was both too limited and too confining to fully adjudicate the crimes at issue. Specifically, the intent requirement in the genocide article constrained the Court. Mr. Kress concluded with areas of improvement he sees for the second draft. He hopes the convention will use some of its elements to further prosecution of war crimes and genocide. He hopes to see guidance on transitional justice and more legal space to prosecute war crimes in non-international armed conflict. 

Judge Kwon spoke next. He reiterated Mr. Murphy’s opinion that the convention was not redundant. He believes the draft convention and the ICC are compatible and mutually beneficial. He sees the new convention as an opportunity for non-State Parties of the Rome Statute to fight against crimes against humanity. He also stressed concern about the lack of a prohibition on amnesties in the draft. 

Mr. Sacco with Amnesty International spoke next. Overall, he said Amnesty is supportive of the convention. He highlighted the provisions on superior orders and the non-applicability of statute of limitations as especially positive. However, he was very transparent on Amnesty’s belief that the convention was not nearly progressive enough. He called on progressive states and civil society to submit comments to push the next draft in a more progressive direction. He specifically hopes for more progressive development on victims’ and witnesses’ rights and a ban on military courts. He was also very concerned about the lack of a prohibition on amnesties and immunities. He mentioned that Amnesty was also concerned with the incorporation in the convention of the Rome Statute’s definitions for gender and sexuality. Amnesty strongly believes that customary international law and global society has moved past those definitions and that the definitions used in the convention should reflect that progression. 

The final panelist to speak was Professor Sadat. She reiterated the other panelists views that the convention was necessary in filling the gap in prosecution of atrocity crimes. She highlighted ethnic cleansing that might not meet the definition of genocide and sexual violence during peace time as particular areas of concern addressed by the convention. She said that the convention was a necessary step in ending impunity and the increased complementarity will create more international criminal law capacity at the national level. She noted that she hoped the preamble would include a Martin’s clause, as there will always be new ways to commit atrocity crimes and she believes it is important to make space for those developments in the convention. She concluded with recognizing that today was the 71st anniversary of the adoption of the Nuremberg principles and the development on this convention was an important step in continuing that legacy. 

Next the discussion was extended to the audience for questions. One audience member asked why incitement was not included in the draft. He was especially concerned about the lack of an explicit mentioning of incitement in the articles relating to prevention. Mr. Murphy replied that the Commission discussed inclusion of incitement but ultimately decided to mirror the Rome Statute as closely as possible. He also added that the drafters believed that incitement was covered in the draft, even if not done so explicitly, through criminalizing attempt and aiding and abetting. Professor Sadat also replied that incitement is supported by the Rome Statute, even though it is not included. She pointed to the fact that incitement is included under genocide and that the likely reason for its exclusion under the article on crimes against humanity is because there was no convention to look to. Mr. Sacco, speaking in his personal capacity, agreed with the audience member that incitement was not adequately covered by the draft convention. 

Another question posed to panel asked whether there were concerns that reducing crimes against humanity to a convention was in itself a step backwards. He was concerned about a dilution in the customary law that had developed around crimes against humanity. The panelists stressed that a dilution in law was not the intent of the convention and that adoption of the convention would further international law relating to the prosecution of crimes against humanity. 

Personal observations: 
It was obvious that all the panelists strongly supported the development of the convention. However, it was also obvious that most, if not all of them, hoped the convention would become more progressive. The ILC members, especially Mr. Murphy, who has been intimately involved in the drafting, were more cautious about the convention becoming too progressive. Both members alluded to push-back from other commission members on certain progressive aspects. The exclusion of amnesties and immunities from the draft also suggests that the Commission’s membership overall is concerned with the acceptance of less progressive states of those elements. Mr. Sacco was very transparent on Amnesty’s concerns over areas where the convention fell short. Civil society will be crucial in helping to move more conservative ILC members towards accepting progressive additions to the convention.

Side Events: 16th Assembly of States Parties | Victims of Hissène Habré: the struggle for reparations continues

By Kirsten Lavery, PILPG Program Manager

On December 7, 2017, the government of Switzerland, Human Rights Watch, and REDRESS convened an event entitled “Victims of Hissène Habré: the struggle for reparations continues” in the sidelines of the ASP Meetings of the ICC. In 2016, Hissène Habré, the former dictator of Chad, was convicted by the Extraordinary African Chambers (CAE) in Senegal for crimes against humanity, war crimes, and torture. The Habré trial has rightly been hailed as a victory for all those that fought for justice, particularly the victims that called for justice for over 20 years. The Habré trial was also a victory for the African continent as an example of complimentary jurisdiction and the demonstration of the ability of Africa to deliver justice for Africans on the continent. The trial included the active participation of victims, including many women who broke taboos in Chad to testify openly regarding their experiences as sex slaves during the Habré regime. In 2017, the CAE confirmed Habré’s verdict and ordered Habré to pay roughly $150 million in compensation to his victims. The CAE located and froze less than $1 million in assets and mandated that the African Union establish an AU Trust Fund to locate and seize additional assets. This Trust Fund has yet to be established and victims have not yet received reparations.

The event focused on considering whether equitable justice can be achieved without the effective implementation of reparations. Following introductory remarks and a screening of a video by Human Rights Watch that showed footage of the trial, a civil party representative in the proceedings spoke regarding his experience. He was a victim of prolonged torture by the regime and inquired why victims of such heinous crimes were required to fight for justice for so long.

He noted that while the Habré verdict was an important step, reparations are still critical. He explained that reparations address several dimensions of the harm suffered by the victims, but its psychological impact is the most important. In this sense, reparations offer the victims of torture the opportunity to restore their dignity. He stated that reparations are often a matter of life or death for victims of gross human rights violations, who many times have lost everything as a result of the crimes suffered. He further stressed that Chad and the African Union have the obligation to ensure reparations are provided for the victims, as required by the Court’s judgment. However, in recognition of the financial weakness of Chad, he stressed that external funding is needed. He stated that victims believe that foreign states that encouraged the dictatorship of Habré should be required to provide compensation.

In addition, a lawyer involved in the Habré trial and a reparations specialist gave their views on best practices to establish a Trust Fund to effectively implement reparations. These experts noted the concerning delay in establishing the Trust Fund by the AU. Currently, a draft statute is circulating that will be considered at the next AU Summit this January. The necessity of establishing the Trust Fund with urgency was stressed, so that victims can achieve full justice within their lifetimes. As there will still be a lack of available assets once the Trust Fund is established, technical expertise and financial tools are needed to locate and seize assets that can contribute to the Trust Fund. It was noted that given the lack of expertise in this area by human rights lawyers, corporate law firms that conduct investigations should consider providing pro bono assistance. In addition, support is needed to perform victim outreach and to ensure that the implementation of reparations is a victim-centered process that avoids re-traumatization. The speakers further highlighted options for structuring and funding reparations, concluding that a hybrid approach where donors support the fund to build its capacity to reparations together with the seizure of assets will likely be needed. In addition to continued efforts to identify assets of the former Habré regime that can be seized, the responsibility of Chad to provide funds was stressed. The speakers noted that relaying on donors to fund reparations can be problematic, as it blurs the lines between reparations and broader development assistance, thus undermining the purpose of reparations. Given this, the role of donors in building capacity instead of providing compensation was stressed. The speakers further suggested that the option of a staggered payment plan would help facilitate payments in the Trust Fund by the government of Chad.

The event concluded with further emphasize on the necessity of reparations to achieve equitable justice for the victims of the Habré regime. The establishment and implementation of the Trust Fund for Habré victims has the potential to acknowledge victim suffering and should remain a priority on the international agenda.

Side Events: 16th Assembly of States Parties - From Nuremberg to The Hague and Beyond: Critical Reflections of the State of Criminal Justice Today

By Sophie Bones, PILPG Law Fellow

The International Nuremberg Principles Academy is an organization that promotes international criminal justice and human rights. They do so by imparting invaluable knowledge via training on the investigation and prosecution of international crimes at the national level. Their mission is to assist states in doing better domestically. Dr. Serge Brammertz, Chief Prosecutor of the ICTY and President of the Academy, gave Africa as an example of how their work is impactful. He says the biggest problem in regard to investigating and prosecuting crimes in Africa is lack of knowledge. In the past year, they have done training sessions in Kenya, South Sudan and Rwanda bringing the expertise of those who work at international criminal tribunals to (mostly) local prosecutors. The Academy uses a case study developed from Security Council reports and established evidence to provide a realistic simulation for the domestic prosecutors to practice with. This is sent in advance, giving participants time to prepare fully. The training sessions train participants in a range of skill sets, from the use of evidence to witness interviews. In the next year they are bringing training to the Central African Republic, Côte D’Ivoire, Senegal, and Mali.

The Academy members reflected on challenges to international justice generally, and took the closing of the ICTY as a moment to reflect on what has worked and what hasn’t. Their main lessons when thinking about the future were threefold.

Firstly, that we missed the mark in terms of the limitations of the criminal justice process. In the future, we need to be realistic about what it can achieve, because the reality is that the current court system doesn’t live up to promises contained in the statutory preambles regarding peace and reconciliation. Criminal tribunals can contribute in important ways, but they cannot solve the problem of peace by themselves.

Secondly, transitions require much more than criminal justice. They require dialogue, societal and legal reforms, and a struggle with the truth. Capacity building in national governments is key to successful transitions.

Finally, the complementarity principle must be fulfilled. It is this principle that empowers states to prosecute crimes themselves, and the ICC should be a last resort.

Personal observations:

Complementarity is the principle that states, first and foremost, bear the responsibility to prosecute crimes domestically, and that the ICC is merely complementary to the domestic criminal system. This is a continuing issue at the ICC, and is seen as one of the most important components of fighting impunity. The ICC can only try so many cases, and only the most senior of officials. Domestic mechanisms are more suited to broader prosecutions encompassing a range of actors. The Academy seeks to enforce and encourage this principle by equipping the necessary domestic prosecutors with the tools to successfully take on these cases. They are seeking to bridge the gap between the crimes being committed and the accountability mechanisms set up to deal with them. This will be an important part of the future for international criminal justice. PILPG is involved in a number of transitional justice projects, for example in South Sudan with the proposed Hybrid Court, and it is work like this that ensures such mechanisms are staffed by competent prosecutors who are fully able to deal with the intricacies of war crimes prosecutions.

Side Event: Complementarity in Central and West-Africa (co-hosted by France, Senegal, International Federation of Human Rights (FIDH) and Amnesty International)

Overview by Emma Bakkum, Research Associate PILPG-NL

Speakers:

• Alioune Tine, Director, Regional Office for West and Central Africa, Amnesty International

• Karine Bonneau, Head, International Justice Desk, FIDH

• Drissa Traoré, Lawyer and FIDH Vice President (Mali)

• Mathias Maroub, President of the Central African Observatory for Human Rights (CAR)

• Asmao Diallo, President of the Association of Victims, AVIPA (Guinea)

• Jacques Mbokani, Professor of Law, Catholic University of Louvain (DRC)

Highlights:

1. This side event focused on Central and West African states that provide an example of how complementarity between ICC and States Parties works in practice.

2. The panelists highlighted domestic challenges, such as ongoing insecurity and instability, the lack of political will, and capacity building.

3. The panelists underlined the importance of complementary justice efforts to provide justice for victims.

4. Amady Ba, head of international cooperation at the OTP, noted that the ICC truly encourages complementarity.

5. The CAR Special Criminal Court is not functioning yet due to financial problems and national and international judges need to be appointed. The headquarters are in Bangui and security will be ensured both by national and UN forces. The applicable law is CAR law, but judges will be able to refer to international standards.

Developments in Central and West African states, namely the Central African Republic (CAR), the Democratic Republic of Congo (DRC), Guinea, and Mali, provide examples of how complementarity between the ICC and States Parties works in practice. The panelists of this side event highlighted some of the domestic challenges faced by these countries in pursuing complementary justice, especially the lack of political will, capacity building, and ongoing insecurity and instability. All of the speakers underlined the importance of complementary justice efforts in providing justice for victims.

Asmao Diallo discussed the witness testimonies concerning the situation in Guinea. She noted that victims remain insecure and those responsible remain able to intimidate victims to prevent prosecutions. She also noted that the ICC’s OTP is committed to seeking justice in Guinea and often visited and consulted regarding investigations. Drissa Traoré discussed the developments of judicial processes in Mali and highlighted certain challenges, including the lack of political will, insecurity of the judges, and the lack of capacity and resources. Jacques Mbokani then mentioned jurisprudence of the Congolese courts in terms of prosecution of crimes under the Rome Statute. Although he praised the number of cases the courts have completed and the work of NGOs, he noted the need for improvements. A clear strategy for the prosecution of international crimes is necessary, as up until now prosecutions have been carried out in “a sort of haphazard manner”. Moreover, courts should interpret complementarity differently in order to include crimes committed before 2002. Finally, courts should have a higher capacity in order to prosecute “bigger fish” and to strengthen the protection of witnesses and victims. Mathias Maroub discussed the Special Criminal Court in CAR and noted that the persistent insecurity in CAR remains a barrier for the court and discourages victims from seeking justice.

Amady Ba, head of international cooperation at the OTP, added that the ICC truly encourages complementarity. The OTP is working in an efficient manner on complementarity by encouraging political will to ensure national prosecution of international crimes.

Questions were raised regarding the location and security of the Special Criminal Court in CAR, and the applicable law. Mathias Maroub answered that the headquarters are in Bangui and that security will be ensured both by national and UN forces. The applicable law will first of all be CAR law, but judges will be able to refer to international standards. He furthermore noted that the court is not functioning yet due to financial problems and that national and international judges need to be appointed. The last question related to states that prefer to reduce the role of complementarity. Asmao Diallo answered with a call upon states to make sure to prosecute those responsible for crimes wherever they might find them. Victims must be heard and those responsible must be prosecuted. Her colleague added that wanting to reduce the role of complementarity it is the wrong message to send, especially for victims.

Side Event: Complementarity in Central and West-Africa (co-hosted by France, Senegal, International Federation of Human Rights (FIDH) and Amnesty International)

Overview by Emma Bakkum, Research Associate PILPG-NL

Speakers:

• Alioune Tine, Director, Regional Office for West and Central Africa, Amnesty International

• Karine Bonneau, Head, International Justice Desk, FIDH

• Drissa Traoré, Lawyer and FIDH Vice President (Mali)

• Mathias Maroub, President of the Central African Observatory for Human Rights (CAR)

• Asmao Diallo, President of the Association of Victims, AVIPA (Guinea)

• Jacques Mbokani, Professor of Law, Catholic University of Louvain (DRC)

Highlights:

1. This side event focused on Central and West African states that provide an example of how complementarity between ICC and States Parties works in practice.

2. The panelists highlighted domestic challenges, such as ongoing insecurity and instability, the lack of political will, and capacity building.

3. The panelists underlined the importance of complementary justice efforts to provide justice for victims.

4. Amady Ba, head of international cooperation at the OTP, noted that the ICC truly encourages complementarity.

5. The CAR Special Criminal Court is not functioning yet due to financial problems and national and international judges need to be appointed. The headquarters are in Bangui and security will be ensured both by national and UN forces. The applicable law is CAR law, but judges will be able to refer to international standards.

Developments in Central and West African states, namely the Central African Republic (CAR), the Democratic Republic of Congo (DRC), Guinea, and Mali, provide examples of how complementarity between the ICC and States Parties works in practice. The panelists of this side event highlighted some of the domestic challenges faced by these countries in pursuing complementary justice, especially the lack of political will, capacity building, and ongoing insecurity and instability. All of the speakers underlined the importance of complementary justice efforts in providing justice for victims.

Asmao Diallo discussed the witness testimonies concerning the situation in Guinea. She noted that victims remain insecure and those responsible remain able to intimidate victims to prevent prosecutions. She also noted that the ICC’s OTP is committed to seeking justice in Guinea and often visited and consulted regarding investigations. Drissa Traoré discussed the developments of judicial processes in Mali and highlighted certain challenges, including the lack of political will, insecurity of the judges, and the lack of capacity and resources. Jacques Mbokani then mentioned jurisprudence of the Congolese courts in terms of prosecution of crimes under the Rome Statute. Although he praised the number of cases the courts have completed and the work of NGOs, he noted the need for improvements. A clear strategy for the prosecution of international crimes is necessary, as up until now prosecutions have been carried out in “a sort of haphazard manner”. Moreover, courts should interpret complementarity differently in order to include crimes committed before 2002. Finally, courts should have a higher capacity in order to prosecute “bigger fish” and to strengthen the protection of witnesses and victims. Mathias Maroub discussed the Special Criminal Court in CAR and noted that the persistent insecurity in CAR remains a barrier for the court and discourages victims from seeking justice.

Amady Ba, head of international cooperation at the OTP, added that the ICC truly encourages complementarity. The OTP is working in an efficient manner on complementarity by encouraging political will to ensure national prosecution of international crimes.

Questions were raised regarding the location and security of the Special Criminal Court in CAR, and the applicable law. Mathias Maroub answered that the headquarters are in Bangui and that security will be ensured both by national and UN forces. The applicable law will first of all be CAR law, but judges will be able to refer to international standards. He furthermore noted that the court is not functioning yet due to financial problems and that national and international judges need to be appointed. The last question related to states that prefer to reduce the role of complementarity. Asmao Diallo answered with a call upon states to make sure to prosecute those responsible for crimes wherever they might find them. Victims must be heard and those responsible must be prosecuted. Her colleague added that wanting to reduce the role of complementarity it is the wrong message to send, especially for victims.