Side Event – “Presentation of a video documentary, “The Prosecutors”

The Prosecutors - Film excerpt screening on prosecution of sexual violence in Bosnia and Herzegovina, Colombia, and the Democratic Republic of Congo”

(co-hosted by Chile, Costa Rica, Norway, ART WORKS Projects and Open Society Foundation)

Overview by Annelou Aartsen, Research Associate PILPG NL

Highlights: 

• “The Prosecutors” tells the story of three lawyers who fight against impunity of sexual violence in their country. 

• The documentary has a powerful message: that justice is being done.

The event was co-hosted by Chile, Costa Rica, Norway, ART WORKS Projects and Open Society Justice Initiative. During the event the documentary “The Prosecutors”, directed by Leslie Thomas and produced by ART WORKS Projects, was showcased. This was followed by a panel discussion consisting of Leslie Thomas, legal gender expert Daniela Kravetz, and Senior Project Manager for the Open Society Justice Initiative Eric Witte. 

“The Prosecutors” tells the story of three dedicated lawyers who fight against impunity for sexual violence committed at times of war. The documentary is filmed over five years in three states, the Democratic Republic of Congo, Colombia, and Bosnia Herzegovina, all facing a long journey towards justice. 

The case of the DRC starts off with the testimonies of victims of sexual violence. All allegedly committed by military troops. The documentary portrays how 39 military members are accused guilty, however, only 2 are convicted with the war crime of rape. Something which seems unbelieve considering that there are 150 cases of rape recorded. 

The case of Colombia demonstrates how sexual violence was implemented as a weapon by the AUC paramilitary forces (Autodefensas Unidas de Colombia). It showcases the prosecution of Marco Tulio Pérez Guzman, referred to as ‘el Oso’, who as the leader of the paramilitary forces was responsible for the systematic abduction and abuse of Colombian women. 

Related to the case of  Bosnia and Herzegovina the documentary notes that the majority of the victims of sexual violence have not come forward because too often justice has not been served. A practical issue the prosecution faces in Bosnia and Herzegovina is that the only witnesses are often the victims of rape. 

During the panel discussion following the documentary diverse issues were discussed. Amongst others, the producer was asked why she decided to make this movie. Leslie Thomas explained that she got inspired during a conference by those working and striving for justice. Additionally, she stressed some aspects of the documentary which she finds interesting. According to her, the documentary is able to demonstrate the use of sexual violence as a tactic employed by paramilitaries. In particular, the impact the use of sexual violence can have in terms of controlling a certain population. Another aspect highlighted by the producer is the powerful message the documentary sends to the victims. It is able to demonstrate that justice is being done. Something which is important for other countries who still need to find their ways to justice. According to Thomas, the movie was made for three reasons: to speak to policy makers, to stakeholders, and to the people who vote. To make them aware for their global responsibility to provide for justice. 

On a more general note, the panel addressed some lessons learned from post-conflict societies fighting for justice, which can be used for other countries that are going through similar processes. The panel highlighted the need for making sure that people understand what justice means, in addition to the need for providing for trial defense. Lastly, the judicial mechanisms which are set up need to have strong oversight to ensure the judicial process can run efficiently and continuously. 

Beyond these general lessons, the panel noted that often tradeoffs need to be made. There is for example a preference for local justice, however at times it is not possible to provide for justice locally due to security issues. Another issue which often needs to be decided on is whether to include internationals within the judicial mechanism such as judges or prosecutors. Sometimes this is necessary due to the destabilized nature of the national judiciary. Trust lacks within the national system, and therefore international actors can serve as objective actors.

The panel concluded that this “The Prosecutors” reminds us why we fight for justice and why this work is so important. The documentary is one which inspires. The trailer and the upcoming screenings of the documentary can be found here: http://www.theprosecutorsmovie.com/.

Side Event – “The Gbagbo-Blé Goudé and Jean-Pierre Bemba trials: crossviews and possible impacts on Côte d’Ivoire, the DRC and the CAR”

(co-hosted by the Ivorian Observatory for Human Rights and the Institute for Security Studies)

Overview by Sally Eshun, Intern PILPG NL

Highlights:

• A very insightful event on the relationship between the ICC and the countries in which it has been most active in the past years. 

• The panelists assessed and compared the Gbagbo & Blé Goudé case and the Bemba case, considering the latter’s acquittal in June 2018. They shed light on the impact the two cases and the general work of the ICC has on the local populations in the DRC, CAR and Côte d’Ivoire. 

As an introduction, Alan Ngari, researcher at the Institute for Security Studies (ISS), pointed out the similarities in both cases and raised the concern that the outcome in the Blé Goudé case might be the same as in the Bemba case. He said that the outcome which resulted from the errors of the Appeals Chamber in the Bemba case on the issue of admissibility with respect to some of the charges, have the potential to be repeated in the Blé Goudé case now that the defence counsel has submitted the “no case to answer” motion. Mr. Ngari put emphasis on the impact the ruling can have on reparative justice for victims in Côte d’Ivoire. With the Bemba experience in mind, he pointed out that the potential for them to be let down is great due to the fact that there is no reparations available when a case is acquitted. 

Hyacinthe Gbiegba, who discussed the socio-political impact of the Bemba acquittal, tackled the topic of reparations of victims in the Central African Republic (CAR). He mentioned that there have been national efforts to provide reparations to the victims together with the UN Development Programme (UNDP). Concerning the political consequences of the Bemba acquittal, it was mentioned that victims in the CAR expected that Bemba would be sentenced and were surprised by his acquittal. Victims did not understand the acquittal when he was simultaneously sentenced for witness tampering. According to Mr. Gbiegba, victims were wondering whether the judges’ decision was politically motivated or whether they did not have all the information. He noted that the acquittal harmed the ICC’s reputation in the CAR, which is unfortunate keeping in mind the ongoing conflict. 

Paolina Massidda, the legal representative for the victims in the Blé Goudé case, commented on how in both cases justice for vicitms is lacking. Victims in CAR were very committed to the case, as seen by the high number of victims participating in the trial. Mr. Massidda noted that the people of Côte d’Ivoire already feel let down by the Ivorian government, so the reputation of the Court is closely connected to the outcome of the case. Mr. Massidda closed by stating that he hopes that command responsibility under Article 28 of the Rome Statute will be interpreted differently under the circumstances of the Blé Goudé case as opposed to the Appeals Chamber not seeing a sufficient link between the crimes committed and Bemba’s position as a commander in his acquittal.

The consensus among the panellists was the ICC’s need to take a victims-centred approach, also when it comes to outreach in the respective countries for the Court’s own sake and credibility. 

Side Event – “Justice for Syria: Universal jurisdiction as a main emerging tool to complement the International Criminal Court”

(co-hosted by Liechtenstein and European Center for Constitutional and Human Rights (ECCHR))

Overview by Abby Roberts, Research Associate PILPG NL

Highlights:

• A survivor of a Syrian detention center is in favor of the use of universal jurisdiction in his case as well as others and considers the recent arrest warrants issued a ray of hope.

• Universal jurisdiction and complementarity are especially important in the instance of Syria given the lack of jurisdiction by the ICC.

This event began in an incredibly impactful manner, with an opening speech delivered by a survivor of the Syrian war. He had been a detainee on two occasions of one of the Syrian military intelligence-run detention centers, which he referred to as the ‘slaughterhouse’ because when you are detained there, you are essentially sentenced to death. Anonymity was retained for this speaker because he still has family in Syria whom he fears for. He said that he and others like him are seeking justice for the sake of those still detained back in Syria. The survivor spoke very highly of the implementation of universal jurisdiction, as he is thrilled to be seeing concrete results in the form of arrest warrants being issued. He said that for the victims it is a sign of justice and that impunity cannot go on anymore. He believes this action is an assurance that the perpetrators have no place in Syria in the future.

Following the survivor, the head of the French War Crimes Unit detailed how, given the ICC’s lack of jurisdiction in this case, the principle of complementarity here makes perfect sense as most states parties adapt their domestic legislation to conform with the mandate of the Rome Statute. She provided the example of France, where legislation regarding torture was modified to match the Rome Statute, enabling suspects that allegedly committed crimes against humanity and war crimes to be prosecuted in France if they are on French territory. She explained the purpose of this is to prevent perpetrators of these crimes from escaping justice by hiding in France. She also spoke to France’s newer endeavors, such as exploring avenues for witness protection and the joint investigation team that was recently established between France and Germany.

Next to speak was Ms. Marchi-Uhel, head of the International Impartial and Independent Mechanism (IIIM) for Syria. She opened by speaking about the sheer amount of evidence that has been gathered in this case, as there are more hours of video documentation than there have been hours in the conflict. She then asserted the arrest warrants issued by Germany and France for the alleged acts of torture are sending the first signal of hope that the victims’ suffering has not been unnoticed and will not go without responsive action.

Then the floor was given to Patrick Krocker with ECCHR. He is a part of the International Crimes and Accountability program where he is responsible for ECCHR's work on Syria. He began by discussing the emergence of universal jurisdiction as it relates to ECCHR’s previous body of work. Using Germany as a successful example, he credited their success to their war crimes unit and use of universal jurisdiction. He then spoke on the ICC, which he described as “...strengthening the whole system of international justice”, and finally expressed his favor for states (re)instating their universal jurisdiction law. 

The panelists were asked the following questions: how has your organization dealt with the varying needs of representative inclusion? What is the impact of the work inside Syria? What strategies are you working on the make sure your work is engaging people within Syria, and what can the people in this room do to help?

The survivor spoke to the second question by responding that many people were wondering why it was worth it to prosecute in Europe rather than closer to home, but are now seeing the utility of the prosecutions in light of the arrest warrants. For him, this speaks to there being no more future for these people in Syria. Now that perpetrators are named it is not acceptable to have them in future regimes, and this provides hope that these violations won’t happen anymore.

The head of the French War Crimes Unit responded to the last question by noting that there is a balance that has to be found between communication with the victims and protecting the viability of the investigation/potential for prosecution. Patrick Krocker also responded to the last question on behalf of the ECCHR. On inclusiveness, it is important for them that they see themselves as ‘co-claimants’ or translators, they open the door for the victims that want to come forward. ECCHR also uses a different methodology for representing the survivors depending on the involvement they want in the prosecution, so they can be as involved as they feel comfortable with. Ms. Marchi-Uhel added that the IIIM has also implemented a victim-centered approach, as you cannot assume you know what victims want or how involved they want to be.

Side Event – “Hard Law Obligations, Atrocity Crimes and the Veto” (co-hosted by Costa Rica, Liechtenstein and the Netherlands

Overview by Cleo Meinicke, Research Associate PILPG NL

Highlights:

• Jennifer Trahan, researching the legal limits to the use of the veto power of the Permanent Members (P5) of the UN Security Council in the face of genocide, crimes against humanity or war crimes, argued that the main problem is that “we treat veto as above law, for which no explanations are required.” On a positive note, she stated that since two decades there is agreement that vetoes for atrocity crimes are problematic.

• Justice Richard J. Goldstone attended the panel discussion and supports the idea of limited veto powers in the face of genocide, crimes against humanity or war crimes. 

Co-hosted by Costa-Rica, Liechtenstein, and the Netherlands, this side event was based on research by Jennifer Trahan, Clinical Professor at NYU Center for Global Affairs,on legal limits to the use of the veto power of the Permanent Members (P5) of the United Nations Security Council (UNSC) in the face of genocide, crimes against humanity or war crimes. 

Moderated by Anna Myriam Roccatello, deputy Executive Director and Director of Programs of the International Center for Transitional Justice, the panel consisted of representatives of the co-hosts including H.E. Sergio Ugalde, Ambassador of Costa Rica, and H.E. Paul van Ijssel, Permanent Representative of the Netherlands to the ICC and OPCW, as well as Justice Richard Goldstone, Jennifer Trahan, James Goldston, Executive Director of the Open Society Justice Initiative, and David Donat-Cattin, Secretary-General of Parliamentarians for Global Action. 

H.E. Ugalde opened the discussion by asking the question why the concept of veto powers is promoted even in cases where it might contradict general international law and in particular ius cogensnorms. Holding international criminals accountable is a well-accepted international practice that is supported by opinio jurisand constitutes a principle of international law. Thus, a veto preventing the UNSC to act in the face of genocide, crimes against humanity or war crimes can be considered a breach of international law. He explained the acceptance of this practice with politics and the current power imbalance on the international level. 

H.E. Van den Ijssel provided the perspective of the Netherlands on the issue. The Netherlands is strongly against ignoring events of mass atrocities and Van den Ijssel stressed the responsibility of the international community for the protection of civilians, whose government failed to do so. 

Justice Goldstone provided an overview of the past use of veto powers. He referred to the actions by the P5 with regard to the apartheid in South Africa. There the U.S. and the U.K. blocked several requests for intervention. Similarly, in 1994 at the outset of the Rwandan Genocide, France and the U.S. threatened to veto resolutions. Justice Goldstone highlighted the power threats of vetoes can have. The opinions of the P5 on certain topics are well known and resolutions are often not even drafted or referred to the UNSC. The use of veto powers however, according to Justice Goldstone, could be curbed if the requests for resolutions go public and where they concern a strong and clear moral imperative. 

Following Justice Goldstone’s insights, Jennifer Trahan introduced her research, which formed the basis of the panel discussion. She argued that the main problem was that “we treat veto as above law, for which no explanations are required.” On a positive note, since two decades there has been agreement that vetoes for atrocity crimes were problematic, and two permanent members have already adopted this idea. 

In her research she addressed three main issues. First, the contradiction between on the one hand classifying the prohibition of core crimes as ius cogensfrom which no derogation is allowed, and on the other hand the power of the P5 to veto resolutions concerning atrocities. Second, the ability to allow vetoes on atrocity crimes is in contradiction with Article 24(2) of the UN Charter, which prescribes that the UNSC “shall act in accordance with the Purposes and Principles of the UN.” A veto restricting reaction to atrocities goes against the principle of the maintenance of international peace and security. Third, the veto powers contradict foundational treaties the P5 are parties to, such as the Genocide Convention. Even though the Charter can outweigh treaties, this should not apply to foundational treaties in the panelist’s opinion.  

James Goldston reiterated the points raised by the previous panelists and added that a way to restrict the power of the P5 in cases concerning atrocities would be to accept one veto in the presence of at least nine positive votes in the UNSC. 

Lastly, David Donat-Cattin, agreeing with the other panelists that the ultimate goal should be to restrict veto powers with regards to atrocities, pointed out that due to the difficulty of this project short-term actions should be considered as well. Those actions include the Arria-Formula meetings, which are informal gatherings of UNSC members where private exchanges of views are possible, but also the “Uniting for Peace” resolution, which provides for the General Assembly to consider matters that are not worked on in the UNSC due to the members’ unanimity. Moreover, the International Impartial and Independent Mechanism (IIIM) to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in the Syrian Arab Republic, adopted by a UNGA resolution, is a useful mechanism to address atrocities committed in Syria at the moment. Then there are also tools such as compelling the UN to become more proactive in the shaming and encouragement of states. All those alternative methods can have a strong cumulative effect on the actions taken against atrocities according to Donat-Cattin. 

Questions were raised concerning the management of expectations attached to the idea of restricting the veto power and who would be responsible to determine whether there was a breach of international law by a permanent member of the UNSC. Expectations in international law are widely disappointed and this can be countered according to Donat-Cattin by learning more about what the expectations of the victims are. Most discussions are held between international lawyers, but the inclusion of victims and other civil society actors is important to understand their expectations and tackle the problem of disappointment. Concerning the determination of a breach, the International Court of Justice may be a valuable tool even though this requires a state to bring the case to the Court. 

Side Event – “Listening to victims from Afghanistan - Views of Afghan society on the ICC and the peace process” (hosted by the Transitional Justice Coordination Group – Afghanistan))

Overview by Cleo Meinicke and Elia Cernohlavkova, Research Associates PILPG NL

Highlights:

• After several failed peace process attempts the panelists agree that the inclusion of the victims of the crimes committed during the war in the process is important. 

• The safety of the victim needs to be guaranteed.

The side event on the peace process in Afghanistan was hosted by the Transitional Justice Coordination Group – Afghanistan and is generally based on the ICC  Prosecutor’s requested authorization to open investigation into war crimes and crimes against humanity committed in Afghanistan.  

The event was led by Mark Kersten who is the Deputy Director of the Wayamo Foundation. The participants included Pablo de Greiff, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Marieke Wierda a Dutch lawyer working on a PhD on the Impact of the ICC in Situation Countries, including Afghanistan, Abdul Wadood Pedram working for the Human Rights and Eradication, Hadi Marifat the director of Afghanistan Human Rights and Democracy Organization, and Horia Mosadiq, an Afghan human rights activist, political analyst, and journalist. 

At the beginning of the event a short movie was shown that displayed the effect the war in Afghanistan has on the civil society. The majority of Afghan families suffer from loss and casualties due to the effects of the war. 

The floor was first given to Horia Mosadiq who emphasized that the previous peace-building efforts were often labeled peace processes. The very term of a process however implies for her the inclusion of victims, which is still not the case in Afghanistan. The Afghan President Ashraf Ghani offered the Taliban unconditional peace talks, especially welcomed by the United States, for which he drafted a plan but according to Mosadiq nothing has been done in reality and victims are still not included. On the backdrop of the exclusion of victims, she however points out that there has been positive development in the inclusion of women in peace-building efforts. She pledges for national dialogue, and criticizes the courts for their lack of public outreach. Mosadiq also suggests a new national survey, investigating the crimes committed throughout the war. The last survey was conducted in 2004 hence a new survey is long overdue.

Marieke Wierda followed with pointing out four main challenges the ICC will face when investigating the crimes committed in Afghanistan. First, there is the challenge of pervasive impunity due to the introduction of amnesty laws in 2007 by the parliament to prevent the prosecution of individuals responsible for human rights abuses during the war. Second, because the perpetrators of the crimes are not yet prosecuted and many of them work in high positions in the government, Afghan society sees the perpetrators’ actions as being accepted and legitimized. Third, accountability and transitional justice efforts have been depicted as a Western agenda, which challenges the ICC legitimacy and the United States denying attitude towards the investigation into the Afghan case adds to this. Lastly, Wierda doubts the deterrent effect of the ICC. Questioning an ex-Taliban about the Court’s deterrent effect, he argued that youth are willing to give their life through suicide attacks and the Court does not have any deterrent effect on this. Moreover, the very concept of international justice is not included in the Madrasas, the Islamic curriculum. Wierda suggests that ICC scrutiny should be encouraged to increase accountability in Afghanistan, referring to Uganda and Colombia as successful examples. Furthermore, reparations should have been paid already a long time ago and should be at the top of the agenda as well.  

The UN Special Rapporteur Pablo de Greiff picked up the importance of the inclusion of victims into the peace-building process. He suggests the inclusion of the most affected and the necessity to identify the different groups that need to be represented. He made a reference to the Colombian situation where 17 civilian groups were identified in order to ensure that all of them are represented. 

The statements by the abovementioned panelists formed the main part of the event, followed by opening up the discussion to the audience. One of the comments from the audience came from an Iraqi judge who sat on the bench of the Special Tribunal against Saddam Hussein. He pointed the similarities between the crimes committed in Iraq and the ones discussed in the side event in Afghanistan out. This comparison was very much appreciated by the panelists. 

The main question asked by the audience, among others by a member of Human Rights Watch, concerned the protection of the victim witnesses. Hari Marifat stressed the importance of this question but admitted that not even the mechanisms for victim inclusion have yet been included. He also raised the point that the concept of “security” or “safety” is ambiguous in the context of Afghanistan, where bringing a victim to Kabul for example already poses a higher risk for the victim. Wierda also added the concern that where authorities are weak it is even more difficult to protect witnesses. She argues that at least the “no harm” principle should be applied in those situations. 

Another discussion was sparked by a question concerning the relationship between peace and justice in the Afghan context. The most prevalent factor here are the amnesties granted to perpetrators and whether these are a means to peace or rather justice. De Greiff argued that it would be wrong to say that justice is an obstacle to peace in the case of Afghanistan, because amnesties do not always result in peace. This decision has to be made on a case-to-case basis. He refers to Colombia where the combination of justice and peace was successful. Wadood Pedram added that the Afghan people would support an ICC investigation as the amnesty laws were strongly opposed by the civil society, so they would like to see justice done. 

As a concluding statement Mosadiq stressed that she wishes the cycle of victims becoming perpetrators to be broken by letting justice prevail in Afghanistan. She pleads for a change in the narrative, where it is not that the case that low-key criminals are in prison and those most responsible for the atrocities member of the government in Afghanistan, this sends the wrong message to the civil society.