Side Event: “Domestic Accountability for Crimes Against Humanity in Mexico” (hosted by Open Society Justice Initiative)

Overview by Georgios Plevris, Research Associate PILPG-NL

Speakers:

• Mariclaire Acosta – Mexican Commission for the Defense and Promotion of Human Rights

• Michael W. Chamberlin – Deputy Direction of Diocesan Center for Human Rights Fray Juan de Larios

• Eric Witte – Senior Project Manager of National Trials of Grave Crimes, Open Society Justice Initiative

Highlights:

• The conclusion of the report titled “Undeniable Atrocities: Confronting Crimes Against Humanity in Mexico” launched in June 2016, is that there are substantial reasons to believe that federal state and non-state actors have committed Crimes Against Humanity.

• The current situation in Mexico is characterized by a militarization of the law enforcement and the deployment of the armed forces against drug cartels, a practice that has produced, according to reports, empirical and statistical data, thousands of homicides and disappearances.

• The results of report call for the creation of an internationalized investigative body based in Mexico with powers to independently investigate and prosecute atrocity crimes, as well as cases of grand corruption.

The event revolved around Open Society Justice Initiative’s report titled “Undeniable Atrocities: Confronting Crimes Against Humanity in Mexico” launched in June 2016, in collaboration with five Mexican human rights organizations. The report is the culmination of three years of research and examines the devastating toll of drug related violence in Mexico through the lens of Crimes Against Humanity (CAH) violations. The panel of speakers included Mariclaire Acosta, Board Member of the Mexican Commission for the Defense and Promotion of Human Rights, Michael W. Chamberlin, Deputy Director of the Diocesan Center for Human rights Fray Juan de Larios, and Eric Witte, Senior Project Manager, National Trials of Grave Crimes, of the Open Society Justice Initiative.

The remarks and comments of the speakers drew a dreary and obscure picture of state sponsored violence in Mexico, with accountability and impunity in its center. Citing the high number of cases of torture and forced disappearances, amounting to hundreds of thousands, Mr. Witte reminded the audience many forced disappearances cases like those in Ayotzinapa and Guererro, as a widespread practice in Mexico. The conclusion of the report in question, he noted, is that there are substantial reasons to believe that federal state and non-state actors have committed Crimes Against Humanity. One of the main reasons to conclude that, is the political obstruction and lack of accountability by the Calderon and Pena-Nieto governments, in the forms of denial and minimization of such crimes, encouraging torture during investigations, politicizing prosecution and fabricating evidence, and many more.

During the discussion, many further comments were made towards the lack of accountability and bad governance in Mexico. Mrs. Acosta quoted the latest annual report of the National Human Rights Commission (NHRC) that underlined “[an] absence of rule of law in Mexico”, as well as “lack of legal security for people”. The current situation in Mexico is characterized by a militarization of the law enforcement and the deployment of the armed forces against drug cartels, a practice that has produced, according to reports, empirical and statistical data, thousands of homicides and disappearances. At the same time, generalization and systematization of torture during prosecutorial and police investigations are a regrettable and condemned practice. Furthermore, the double image of Mexico was criticized, with Mrs. Acosta underpinning the discrepancy between what Mexico stands for abroad regarding human rights, and what really happens inside the country.

However, the aim of the report is not to trigger jurisdiction of ICC. On the contrary, the report calls for the creation of an internationalized investigative body based in Mexico with powers to independently investigate and prosecute atrocity crimes, as well as cases of grand corruption. This caused a serious of questions in the audience, including one from the Senior Legal Advisor to Amnesty International, who was present at the event, about why the report does not recommend an official investigation under the Rome Statute in Mexico. The answer came from Mr. Witte, who remarked the many disadvantages justice in The Hague has in comparison to domestic prosecution. The aim of the report is to encourage and empower the rule of law in Mexico, keeping in mind the proximity of such prosecutions to the victims. Mr. Witte continued saying that even if the ICC opened an investigation this would be at best on a handful of cases, marginalizing in this way many thousands of cases and victims. According to all speakers, the aim of the report is to establish a Guatemala-type of CCIG international mechanism against impunity. In any case, such a recommendation is only a snapshot in time, and can change in the future.

Side Event: “Crimes against Humanity, Sex Crimes and Command Responsibility: Developments and Boundaries in Core International Crime Practice”

Overview by Rosalie Dieleman, Research Associate PILPG-NL

Speakers:

• Ms. Stephanie Barbour (Commission for International Justice and Accountability)

• Dr. Jose Guevara (Mexican Commission for International Justice and Accountability)

• Dr. Emilie Hunter (Case Matrix Network)

• Professor Darryl Robinson (Queens University, Canada)

• Professor Kim Thuy Seelinger ( Human Rights Center, University of California, Berkely, School of Law)

• Ms. Patricia Viseur Sellers (Special Adviser on International Criminal Law Prosecturion Strategies)

• Dr. Ania Salinas Cerda (ICC Pre-Trial Chambers)

Highlights:

• On SGBV: One challenge is the definition of sexual and gender-based crimes, as there are many differences for instance in the definition of rape. Some of these definitions are not gender neutral.

• On CAH: one element of the crime is that it must be part of state organized, or part of state policy. It is a controversial criterion, however the ICC jurisprudence has successfully broadened the scope of organizational activity, with the “policy” requirement not being overly formal.

• On command responsibility: Both Professor Robinson and Ms. Viseur discussed the “mental element” of command responsibility, specifically” the “should have known.” Robinson added that while the commander might claim that he could not have known of the crimes of his subordinates, that is unlikely when he himself created this situation in which he lacks knowledge.

This event was a panel discussion concerning three topics that were discussed by the panel members consecutively. The topics of these discussions are centered around the “developments and boundaries” with regards to crimes against humanity, sex crimes and command responsibility. The event was co-organized by Norway, the Democratic Republic of Congo, the United Kingdom and the Centre for International Law Research and Policy (CILRAP).

Sexual and Gender Based Violence 
The first question raised by the chair was what issues hinder the persecution and prosecution of sexual and gender based violence. Prof. Seelinger raised that there have been a lot of efforts over the past 3 years with regards to implementation at the local level of the Rome Statute and issues with regards to witness protection. One of the challenges here is the definition of sexual and gender-based crimes, as there are many differences for instance in the definition of rape. Some of these definitions are not gender neutral. Stephanie Barbour highlighted that it in order to be able to prosecute offenders of these crimes, is necessary to train investigators to specifically collect evidence with regards to sexual and gender-based crimes. Further remarks were made with regard to the need to further advance witness protection, as well as the importance of dedicating human and material resources to these crimes because it otherwise might get overlooked.

Crimes Against Humanity
The second round concerned the developments and boundaries in crimes against humanity. Professor Robinson noted that in the most recent decisions on crimes against humanity, the ICC has in his views appropriately applied the conditions in the article to the modern-day situation. Especially with the condition concerning requiring state or organization policy. This criterion has been applied more flexible in order to address a broader scope of organizational activity, with the “policy” requirement not being overly formal. Dr. Guevara then went into explaining why the research work of the Mexican Commission for International Justice and Accountability shows that there are widespread abuses with an organizational aspect in Mexico. According to Dr. Guevara there are several crimes in numerous instances that could be attributed exclusively to state actors such as the police, army and the navy, ranging from arbitrary detention, widespread murder and executions to enforced disappearances and torture. The lack of willingness from governments to investigate this is problematic, and his organization is therefore looking into possibilities to ask NGO’s and academics to establish an investigation mechanism.

Command Responsibility
The third round started off with the question: Beyond Bemba, how far does command responsibility travel? Both Professor Robinson and Ms. Viseur talked about the “mental element” of command responsibility, the “should have known.” Robinson added that while the commander might claim that he could not have known of the crimes of his subordinates, that is unlikely when he himself created this situation in which he lacks knowledge. Professor Viseur added to this that in the Bemba case, there was no need to prove that he should have known about the offences going on, but this in fact might be relevant for future crimes. How to establish that a commander should have known, here it might be relevant what actions the commander has taken to gather information about the offences, or even by using diplomatic inquiries for establishing what information was available. Robinson also added that command responsibility is a product of international law which has an influence on domestic legal systems. Dr. Hunter elaborated on this by presenting some of the results of the research work of Case Matrix Network, which concerned the implementation of command responsibility in domestic legislation. So far, approximately 63 states have implemented such legislation, of which approximately 28 have replicated the provisions of the Rome Statute.

Side Event: “Child Soldiers: Prevention and Accountability” (co-hosted by Canada, OTP, Roméo Dallaire Child Soldiers Initiative and JRR)

Overview by Emma Bakkum, Research Associate PILPG-NL

Speakers:

• Fatou Bensouda – Chief Prosecutor of the International Criminal Court

• Roméo Dallaire – Founder of the Roméo Dallaire Child Soldiers Initiative

• Samuel Emonet – Director of Operations at JRR

• Sabine Nolke – Ambassador of Canada to the Netherlands

Highlights:

• The newly launched ICC Policy on Children was praised by all panelists.

• The cooperation between the Child Soldiers Initiative, the JRR and IICI aims to ensure that international crimes involving children are addressed appropriately and systematically.

• Several issues in preventing and creating accountability for the recruitment and use of children were discussed, such as the cooperative roles of the ICC and civil society, the gap between international efforts and national implementation, the moral dilemma of soldiers and police officers when facing child soldiers and rehabilitation.

During this roundtable discussion, ways to prevent and create accountability for the recruitment and use of child soldiers were discussed. It focused specifically on the cooperative roles of the ICC and civil society to address the issue. The panelists emphasized international achievements, including the newly launched ICC’s policy on children by ICC prosecutor Fatou Bensouda, which will serve as a framework for prevention and prosecution of child related crimes at the ICC and as a useful reference to national authorities, civil society and other actors involved. Furthermore, the work that has been delivered by the Child Soldiers Initiative, JRR and the IICI in improving investigations into the use of child soldiers, was highlighted.

While the international community has made great strides to expose and prosecute crimes involving children, it was strongly underlined that more has to be undertaken as children are still disproportionately affected by war. The panelist discussed several issues, such as the implementation gap between international efforts and the national level. Dallaire furthermore discussed the moral dilemma of soldiers and police officers when facing child soldiers. According to Dallaire, these soldiers and police officers need to be an integral part in the solution.

During the Q&A further issues on rehabilitation and the role of the OTP, JRR and Child Soldiers Initiative as well as the role of the UN Security Council in preventing the use of child soldiers were raised. Emonet suggested that to reach accountability for crimes against children, JRR and its roster of experts could serve a complementary role in investigations by the ICC. While Bensouda mentioned that the problems of trauma and addiction during rehabilitation should be taken into account, Dallaire stated that years of efforts on rehabilitation have helped, but that the real essence of the problem is prevention. That is why the Child Soldiers Initiative trains military police forces to get children out of conflict situations. Lastly, gender differences and the role of girls as child soldiers and the way they experience pain differently from boys, as well as the importance of women as peacekeepers were mentioned.

Side Event: “The Role of International Criminal Justice in the Fight Against Modern Slavery”

Overview by David Lando, Research Associate PILPG-NL

Speakers:

• Christian Wenaweser – Permanent Representative of Lichtenstein to the UN

• Phakiso Mochochoko – Director of the Jurisdiction, Complementarity, and Cooperation Division in the Office of the Prosecutor

Highlights:

• Mr. Wenaweser’s demonstrated the magnitude of the crime of enslavement and human trafficking and the impunity gap: “there are millions of people living in slavery, but at the same time, there are only 5.000 proceedings taking place today across the world that regard the crime of slavery.”

• Mr. Mochochoko highlighted the importance of domestic authorities in the battle against the crimes of enslavement and human trafficking.

Despite being short, and constituting only three panelists, the event attempted to tackle an important issue in international law and justice. Namely, how to end impunity for crimes of slavery, forced marriages, and human trafficking.

Christian Wenaweser, the Permanent Representative of Lichtenstein to the UN, opened the event by describing the magnitude of the crimes that are committed: “20 to 45 million people are the victims of slavery. Many believe that slavery is a thing of the past, but these numbers prove this is far from the truth.” And while the crimes are ubiquitous, there is little legal proceedings to confront them: “there are millions of people living in slavery, but at the same time, there are only 5.000 proceedings taking place today across the world that regard the crime of slavery.” Therefore, “it is important to understand that there is a huge impunity gap.” This gap should be confronted, at least partly, by the ICC, Wenaweser continued: “the ICC should exercise its mandate on this matter through raising awareness and prosecuting.”

The debate then shifted from discussing the problems of modern slavery to the possible way to confront them by the ICC. Phakiso Mochochoko, Director of the Jurisdiction, Complementarity, and Cooperation Division in the Office of the Prosecutor, argued that, “modern slavery is not confronted with the vigor needed to encounter it.” Yet, the ICC does “have the ammunition” to do so. The ICC, he argued, can do so not only under the auspices of war crimes, but as crimes against humanity.

The moderator of the event then turned to receive questions from the crowd. I raised the issue that despite the optimism of Mr. Mochochoko, it seems to me that this crime is especially difficult to encounter by the ICC as it lays in a multi-layered liminal space: it lays between the jurisdiction of different States (about which another member of the audience added that some of these States may not even be parties to the Rome Statute), it is both a national issue and an international issue, and it is unclear whether it is individuals that should be investigated or the corporations that facilitate modern slavery. On this, and other questions to that effect, Mr. Mochochoko replied that “on the international level the ICC has enough ammunition against it [modern slavery and human trafficking], but the national level should develop further. This is an important weapon against this crime. Cooperation is a tricky issue. ICC is about individuals; therefore, it is difficult to focus on corporations and businesses. If we find individuals that commit these crimes we will prosecute them, but to establish their connection to corporations is difficult.” Moreover, “States have the primary obligation to prohibit modern slavery and human trafficking. States through national investigations must punish and deter the commission of these crimes. Moreover, the Office of the Prosecutor is willing to stand alongside States in assisting them in combating these heinous crimes. The Office will also look to improve collaboration with different branches of the United Nations.” One interesting statement by Mr. Mochochoko came in response to an assertion by a member of the audience that the first step to fight impunity in this matter is to clearly define in the Rome Statute what exactly modern slavery constitutes. To this, Mr Mochochoko responded: ” Crime of enslavement is fully covered. I am not sure there is need for more elaboration on it in the Statute. The Statute does give us a broad possibility to act on forced marriage as well.”

Side Event: “Extraordinary Chamber in the Courts of Cambodia: A Discussion”

Overview by Emma Bakkum, Research Associate PILPG-NL

Speakers:

• David Scheffer – Special Expert to Extraordinary Chamber in Courts of Cambodia

• Michael Bliss – Australian Department of Foreign Affairs and Trade

Highlights:

• The ECCC is voluntarily funded. The great recession, the tsunami in Japan and the migrant crisis in Europe have had a huge impact on the ability to allocate funds.

Main lessons that can be taken from the ECCC:

• It is possible to have an internationalized national court that is close to the crime scene;

• This court can function in a way to ultimately bring justice on site to the victims within society.

This event hosted by Australia and the ECCC focused on the challenges for a voluntarily funded tribunal within the international justice framework, as well as lessons that can be learned from the ECCC. David Scheffer, U.N. Secretary-General’s Special Expert on United Nations Assistance to the Khmer Rouge Trials, first of all shortly mentioned the four cases that occupy the docket of the ECCC, of which case 001 has been closed. Regarding case 002 he said that top perpetrators are ultimately brought to justice and that a judgment is expected next week Wednesday, November 23. Case 002 will come to an end in January. Cases 003 and 004, against four individuals, are in the final phases prior to the issue of a closing order, which will be done in 2017. Scheffer expects decisions in early 2018. Although an appeal in these cases means another three-year period of trial work, the structure of the court will change radically and 2018 will be a milestone year where the budget will come down considerably.

Secondly, the continued financial operation of the court was discussed. The ECCC is voluntarily funded. The great recession, the tsunami in Japan and the migrant crisis in Europe have had a huge impact on the ability to allocate funds. That is why Scheffer calls on the representatives of governments for support in the upcoming 15th committee vote of the UN, to receive a subvention (16.2 million) that will guarantee the financing of the staff for the year 2017. Individual contributions of governments are extremely important as well and he encouraged those at the side event that anything that can be managed for the 2017 budget will be appreciated to keep the court going.

Former ECCC judge Motoo Noguchi also underlined, among other challenges for the ECCC, the difficulty of operating a hybrid tribunal with voluntary contribution. He and Scheffer added that the trial is closely followed by the Cambodian population at large. During the Q&A session, a question was raised regarding capacity building of the ECCC. According to Scheffer, the ECCC process will have generational impact throughout the Cambodian judiciary. There will be long term impact, however the problems of Cambodia, including the national judiciary, should not be understated.

During the Q&A, former Ambassador Stephen Rapp brought up the issue of the controversy surrounding Cases 003 and 004, asking how the Court will deal with the political tensions between the UN and the Cambodian government as these cases move forward towards the close of the investigations. Scheffer replied by saying that despite various hurdles faced by these cases they do continue to move forward and that fact is key. He highlighted the problem of different viewpoints from different parts of the Cambodian government on these cases and that the Court continues to work their way through this. He furthermore stated although there is the possibility of non-arrest of the accused in these cases, should they be indicted by the Co-Investigating Judges, this is first and foremost a diplomatic issue. However, he highlighted that the Cambodian government has not resisted the investigations in these cases up to this point and that the government is aware of what is at stake should they choose to walk away from the Court at this late stage. There is also the argument that you hear that the Cambodian government could shut down the ECCC and try these cases domestically, however, it is generally accepted that this will not happen. However, it remains to be seen what will happen should these cases go to trial, especially given that the international community is perhaps growing tired. In short, the ECCC is entering a new chapter and it is difficult to predict what will become of Cases 003 and 004.

Another question asked was about the main lessons that can be taken from the ECCC. Firstly, that it is possible to have an internationalized national court that is close to the crime scene and that this court can function in a way to ultimately bring justice on site to the victims within society. This could act as an example for a novel exercise of the ICC. The ICC could pass agreements with states on the basis of the example of the UN and the ECCC that could allow for more ‘agreed complementarity’ rather than the current system that requires states to ‘show they’re doing something’ and if not, the ICC intervenes. The ICC could play a role in bringing talent and integrity into a national court system. Secondly, Scheffer mentions that in terms of trial and investigating management, he would have structured the court differently in retrospect to bring different legal systems together. Noting Scheffer’s comment on the possibility to pass agreements between states and the ICC, ambassador Stephen Rapp added that the new special penal court in the Central African Republic signed a memorandum of understanding with the ICC.