ASP19 Side Event: Addressing Sexual Harassment in International Organizations – Best Practices from Human Rights Organizations for the ICC Elections

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

8 December 2020

Name of the Side Event: Addressing Sexual Harassment in International Organizations – Best Practices from Human Rights Organizations for the ICC Elections (co-hosted by Austria, the Netherlands, Open Society Justice Initiative (OSJI), and Women Initiatives for Gender Justice (WIGJ))

Report by: Rachel Grand, Research Associate PILPG

Main Highlights: 

• In the past few years, greater attention has been brought to the need to address sexual violence and harassment in the workplace at international organizations, including at the ICC.

• Panelists underlined that protocols should be in place to address sexual violence and harassment in the workplace, as well as a code of misconduct explicitly designed for international organizations. 

• A cultural shift away from normalizing sexual violence and harassment in the workplace requires comprehensive vetting of leadership and a commitment at all levels of the organization, particularly among those in positions of power.

Summary of the Event: 

After introducing the panelists, Ms. Alix Vuillemin (WIGJ) kicked off the event by highlighting the topic's relevance in light of this ASP’s election of a Prosecutor as well as six new judges. 

Ms. Macarena Saez, Faculty Director for the Center for Human Rights and Humanitarian Law at American University, presented findings from a 60-page report compiled over five months on gender and sexual-based violence within international organizations, specifically referring to applicable laws and best practices to establish guidelines for international organizations when addressing sexual violence and harassment. The report did not aim to create a model code of conduct or protocol, as each institution requires its own institutional diagnosis to understand the factors that contribute to the specific organization's culture. The diagnosis should be based on interviews, surveys, assessment of risk factors, and a complete analysis of policies and procedures within the organization to see how they contribute to sexual harassment or prevent people from coming forward. Ms. Saez noted that a comprehensive code of conduct that binds all people by the principle of equality and non-discrimination is necessary to change the institutional culture.  

The report concludes that the two most important instruments for an international organization are: 1) a code of conduct and 2) a protocol to receive and investigate allegations of sexual harassment, both following the principle of non-discrimination, victim-centered, and accessibility. Additionally, the suggested best practices should have a broad scope of those who are protected from violence and harassment and bound by the code of conduct (consisting of those affiliated with the organization and external audiences). The protocol does not need to have a legal standard but should rather focus on ensuring reparations for those who have suffered and on creating a change in the organization's environment rather than remaining a private event. Another way to generate a cultural shift is regular mandatory training; however, these are only effective if they are designed with situations that arise within the particular organization in mind. Ms. Saez noted that those in positions of high authority within the organization should commit to creating a culture free of sexual violence and harassment. Along those same lines, there should be a commitment to gender parity at all levels and transparent hiring processes to foster an environment free of sexual harassment further.  

Ms. Saez further underlined the importance of having a specific office or person in charge of claims of sexual violence or harassment who ensures confidentiality, an easiness to submit claims, a broad timeframe to submit a claim (at least three years), and who gathers evidence. The (at minimum) three stages in the reporting process – advice, investigation and evidence gathering, and determination of sanctions and reparations - should involve different people. 

In the Q&A part of the event, Ms. Saez emphasized that leaders must convey a commitment to creating a cultural shift away from normalizing sexual violence and harassment within international organizations, for instance expressed in messaging on the website and in contracts. 

Ms. Kelsey Froehlich, a partner at the Mintz Group, spoke next on vetting and background check processes. This information was particularly timely given civil society organizations' recommendation for a comprehensive vetting of candidates for the next ICC Prosecutor. Ms. Froehlich highlighted the importance of background checks to weed out potential bad actors before the process of onboarding a key hire or appointment.  Specifically, she discussed the appropriate level of vetting for an appointment for a position of moral authority, including three levels of background checks: (1) basic criminal background checks; (2) further study into civil litigations, detailed press, and social media research to identify potential patterns; (3) more thorough examination on online forums where bad actors within an industry may be discussed and interviewing references and non-references, such as individuals the person has managed). 

Ms. Froehlich concluded by highlighting the elevated consciousness of sexual violence and harassment in recent years that has brought more allegations to light, which can be discovered through a comprehensive vetting process for those appointed to serve in leadership positions. 

Lastly, Ms. Ruth Frolich, President of the ICC Staff Union, highlighted that while the ICC has taken steps in recent years to reduce workplace misconduct, concerns remain. She noted that this is due to the complexity of addressing the issue, as well as how deeply embedded it is in many international organizations' cultures. Similar to the other speakers, Ms. Frolich highlighted the importance of leadership and fostering more in-depth and informed conversations rather than the normalization of harassment. A code of conduct that includes policies and is implemented by leadership and personnel can be helpful in this regard. 

The ICC Staff Union advocates for staff's rights and well-being through policymaking and individual staff assistance in employment matters. In the past three years, the Union has examined harassment and discrimination issues at the ICC, which included launching a survey. The Union published a policy paper on harassment, which the Court is currently using to amend its policy, and launched an awareness-raising campaign encouraging speaking up against harassment. Ms. Frolich highlighted that staff in the past few years have gained a greater understanding of their rights. Yet, there is limited success and room for improvement to update the framework, create a mediation mechanism, and gain further support from leadership. She specifically mentioned that those in positions of power, such as the ASP, must lead by example, hold individuals at all levels accountable, and provide financial and political support.

Ms. Frolich concluded by emphasizing that the ICC’s legalistic culture tends to approach all problems as legal problems; however, not all types of harassment can be dealt with using the legal perspective and they should involve health specialists and human resources. Ms. Frolich added that the whistleblower policy, being quite broad and rudimentary, could see improvements to protect individuals from retaliation in principle and more concretely. Making such adjustments to ending the normalization of harassment could also improve staff's productivity and, therefore, the Court’s overall performance.

Ultimately, the three panelists agreed that creating an environment free of sexual violence and harassment at international organizations constitutes a long term process that requires transparency at every step of the hiring process, a properly formulated and implemented code of conduct specific to the international organization, constant re-enforcement through training and messaging, and leadership support.

ASP19 Side Event: Accountability for Gender Persecution as a Crime Against Humanity

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

8 December 2020

Name of the Side Event: Accountability for Gender Persecution as a Crime Against Humanity (Co-hosted by Argentina, Finland, UN Women, and Justice Rapid Response (JRR))

Report by: Raghavi Viswanath, Research Associate PILPG-NL

Highlights:

• Gender-based persecution can serve as a tool to reimagine international criminal justice so as to factor intersectional discrimination of marginalized groups.

• Increased involvement of victims and survivors is key to better identifying and conceptualizing gender crimes/discrimination.

• Formal accountability can only succeed if it is accompanied by concerted training, education, outreach, and community participation in accountability efforts in conflict zones.

The event began with welcome remarks by Ambassador Oyarzabal who made poignant remarks on how womxn, girls, and members of the LBGTQ+ community have been prone to violence and discrimination on the basis of their gender identity from the time of the Holocaust. Despite growing awareness, gender concerns are rarely taken into account in transitional justice and peace processes. This forms part of the deficiency in the legal conceptualization of gender discrimination. Even in international criminal law, gender-based persecution did not find recognition up until the adoption of the Rome Statute. In light of this, the Al Hasan case at the International Criminal Court represents a watershed moment for international criminal justice’s understanding of gender persecution and is likely to pave the way for similarly situated victims in Iraq and Colombia. Ms. Suomalainen then briefly addressed Justice Rapid Response’s motivations in putting the event together, given its long-standing efforts to include survivors in the peace process. She was followed by Ambassador Saarela who echoed the need to challenge socially constructed roles and attributes assigned to womxn and men. She commended Justice Rapid Response and the other speakers for their efforts towards garnering recognition of survivors of gender-based persecution as powerful engines of change and using their stories of strength to open up avenues for redressal.

Professor Davis began her presentation by highlighting the gender-based persecution is used as a punitive tool against those perceived to transgress assigned gender narratives—whether it is through the roles they perform in society or their attributes or gender expression. When these harmful gender narratives intertwine with other discriminatory narratives, they reinforce racism and xenophobia. Therefore, the time is ripe for the intervention of international criminal justice. However, within the international criminal lens, gender-based persecution charges have seen little success. Professor Davis surmised that this was because we cannot recognize what gender-based persecution even looks like, citing a range of factual examples that fall within the ambit of persecution. Similarly, unless a gendered lens is employed, sexual crimes are often confined to acts that use sexual means (such as SGBV) and do not account for the broader range of acts involving humiliation and stigma to non-conforming individuals (occasionally including heteronormative men). Conversely, a gendered lens helps us appreciate why a victimizing narrative should not be invoked to deny the rights-holding capacity and status of womxn and LGBTQ+ members. A survivor-centered approach (as endorsed in Security Council Resolution 2467) offers a new entry point into peace negotiations, one that allows a holistic understanding of harm and suffering to be factored into the justice calculus. A survivor-centered approach also carries a strong signaling effect in terms of the international community’s commitment to ending impunity.

Natia Navrouzov then spoke of the contribution that civil society actors such as Yazda make towards bringing attention to the survivor narrative. Yazda primarily works in Iraq where it documents the stories of Yazidi victims of ISIS’s atrocities and accrues out advocacy campaigns. It has already collected testimonies from 1700 survivors and evidence from 100 crime sites. Yazda focusses on educating, training, and sensitizing communities and survivors. Such an approach is imperative given the strong stigma attached to survivors of sexual abuse in patriarchal communities such as the Yazidis. Yazda then uses this information to initiate and support accountability efforts. In Iraq, it shares information with the UNITAD, which was set up via Security Council Resolution 2379 to centralize evidence of ISIS crimes and transmit it to courts in third party States. Unfortunately, there are no judicial avenues available in Iraq, where domestic courts currently only prosecute ISIS fighters for joining the terrorist group. Nonetheless, there are ongoing debates about the setting up of the Iraqi High Tribunal to try other crimes committed by the ISIS. As a result, survivors often have to pursue redressal mechanisms outside Iraq. In recent years, third party States such as Germany have prosecuted their own nationals for involvement in the ISIS, as well as Iraqi members of ISIS using universal jurisdiction. Given their broad scope, such jurisdictional tools offer a platform for charges of gender-based persecution to be litigated. Ms. Nazrouzov ended her presentation with recommendations to the Iraqi government. She called on the Iraqi government to codify crimes against humanity and genocide in its domestic penal code, and consult victims in the drafting of the constitutive charter of the Iraqi High Tribunal. She also suggested increased collaboration between non-Iraqi courts and investigative units towards uncovering evidence of gender-based persecution of Yazidis.

Nisreen, a Yazidi survivor, followed with a moving presentation. Nisreen is one of many survivors who have demanded a seat at the decision-making table in the justice talks in Iraq. She made an impassioned call to the international community to be receptive to the claims of the Yazidis and prompt the Iraqi government to deliver justice to the Yazidis, whose sufferings have gone unnoticed for years.

Emily Keeney, who recapped the key takeaways from the presentation, was the final presenter. Firstly, that gender-based persecution is a distinct crime against humanity that can benefit from unpacking for those not familiar with international criminal law. Secondly, that gender discrimination often intersects with ethnic and religious persecution. Recognizing such intersectionality allows for the law to more accurately confront the social reality and motivations for the crime. It is also better able to guarantee non-repetition to the wider universe of victims and survivors. Thirdly, international criminal justice and transitional justice efforts must use a survivor-centered approach. All of society benefits from inclusive peace and justice processes. In fact, the degree of survivor involvement has been studied to bear a positive correlation with the prospects of effective agreement and implementation. Admittedly, criminal accountability is one channel for justice. However, transitional justice should not be confined to the criminal realm. Efforts must focus on non-repetition and institutional reform.

During the question-and-answer session, the panelists re-iterated the value of outreach activities and reparation programs in integrating the survivors’ needs with the more formal accountability efforts. Responding to the need for better training of investigative units, Professor Davis shared insights on how training modules can be re-oriented towards identifying why the crimes in question occurred, whether there was e-existing discrimination—in law and in practice before conflict broke out.

ASP18 Side Event: The Hague Principles on Sexual Violence – Translating the lived experience of sexual violence survivors into law and policy

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

Day 1 (2 December 2019)

Name of the Event: Side Event, The Hague Principles on Sexual Violence – Translating the lived experience of sexual violence survivors into law and policy

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

Main Highlights:

• Call It What It Is campaign launched during the 17th ASP which developed The Hague Principles with help from the input of survivors. 

• The Hague Principles consist of three documents: 

  • Civil Society Declaration on Sexual Violence 

  • International Criminal Law Guidelines on Sexual Violence 

  • Key Principles for Policy Makers on Sexual Violence 

• Important developments with regards to the prosecution of sexual crime, notably the Bosco Ntaganda Case.

• The treatment of Sexual Violence must remain victim based 

Summary of the Event:

The panel, moderated by Ms. Melinda Reed from the Women’s Initiatives for Gender Justice, the hosts of the event touched upon the importance of a survivor-centric approach to sexual violence, as well as the importance of accountability and prosecution of sexual crimes.

Opening remarks were made by the Swedish Director-General for Legal Affairs H.E. Mr. Carl Magnus Nesser. He discussed Sweden’s feminist foreign policy launched in 2014 in response to the perceived systematic discrimination. This perspective has focused on ensuring that women can reach their rights through representation and resources based on their reality. In his view, perpetrators must be held accountable as impunity for sexual violence has important consequences for victims and their relatives. He addressed the importance of involving men and boys to combat gender related sexual violence. He emphasized the importance of strengthening the capacity of countries to bring perpetrators to justice, as well as facilitating the experience exchange when investigating and prosecuting crimes.

The Prosecutor of the ICC, Fatou Bensouda spoke about her office’s efforts in prosecuting sexual violence offenders, and the historic sentence delivered by ICC trial judges in the Bosco Ntaganda Case. 

The Special Advisor on Gender to the Office of the Prosecution, Patricia Sellers highlighted the importance of jurisprudence in understanding sexual violence, as it means outlawing crimes that were previously taboo. 

Furthermore, Toufah Jallow from the Toufah Foundation gave a poignant retelling of her experience as a survivor of sexual violence by an authoritarian leader. After having testified in the national truth commission, she has advocated for the usage of explicit language as to uncover the taboo surrounding sexual violence. She also urges to create a system of justice that is victim-centered and creating a safe space for victims, but also to consider these survivors as activists. 

The panel continued with Mr. Wayne Jordash from Global Rights Compliance who set forward a series of questions that were to be posed when talking about sexual violence, and defining more effective measures. Some of these questions where touched upon in the Civil Society Declaration. He tackled some of the difficulties that have been encountered in the international prosecution of sexual violence, like the failure to prosecute Lubanga for sexual crimes. 

ICC Judge Howard Morrisson then took the floor to make a statement on the challenges of judging cases of sexual violence. For one thing, the cultural consequences of these crimes have prevented victims from speaking out. But also, the cultural differences make it so that evidence is hard to obtain. 

Finally, the panel was closed by remarks from the Ambassador of Australia to The Netherlands H.E. Mr. Matthew Neuhaus concluded by urging present delegations to support the accountability for gender based violence, particularly during the general debate. 

 The Hague Principles on Sexual Violence can be found here.

Informal Consultations on the Omnibus Resolution 3

Overview by Abby Roberts, Research Associate PILPG NL

Highlights: 

• Clauses 104, 119, and 91ter were agreed upon which was a testament to the cooperation of this body.

• The divide between Latin America and Eastern Europe was even more prominent in this session and this came to a head with no consensus reached on the clause on equitable geographical distribution within the Bureau. 

• The Secretariat is looking into venue options for or rescheduling of the next ASP in 2019.

On the sixth day of the ASP, the informal consultations on the omnibus resolution continued for a final time. The first clause discussed was the new operative clause placed after PP29 and it was noted that the body had come to a consensus on the phrasing and structure of this clause. 

Next under discussion was operative clause 91bis, relating to Brazils proposal for a clause on equitable geographical representation in the Bureau. Brazil spoke first on this topic and opened by noting that the Eastern European group had concerns with the timing and degree of institutionalization of Brazil’s original proposal. Brazil, in its search for consensus, decided on the wording in the draft resolution. Brazil closed its speech by expressing its belief that no country is in essence opposed to equal representation, and therefore Brazil expected agreement on this clause. Japan, Uganda, and numerous Latin American states expressed their willingness to support the proposal by Brazil. Despite Brazil’s hopes, the Eastern European group expressed their disagreement with the clause. Slovakia noted it did not address their main concerns and will not really alleviate any prominent issues, and suggested that more time is necessary to discuss the clause. Slovenia also suggested more discussion and believed that there was no need to raise this particular point in the omnibus resolution as it can be raised by members of the bureau at any point. Bulgaria and Croatia were not in support of the proposal because it had a preemptive element. The Netherlands expressed its support for the views of the Eastern European group and added that it does not see to what extent a requirement for a written report would add anything as it already can be requested. This clause was left to be discussed at a later point. 

The next clause discussed was 91ter. Germany withdrew its suggested edit which shortened the length of the ASP. Belgium had concerns with regards to this clause but was willing to go along with it in the spirit of consensus. The Czech Republic requested that the words “and frequency” be removed. A consensus was reached on this clause with the Czech Republic’s suggested edit. 

Operative clause 104 was agreed upon. Operative clause 119 was agreed upon, pending the passage of the amendment to rule 26 of the Rules of Procedure and Evidence.

Mandate 19(b) regarding the timing of the next ASP was then put up for discussion. Finland asked if there was any possibility to change the date of it or choose a different venue to facilitate a change in date. The Secretariat responded that they are looking into other venue options or rescheduling, but this will take more time. The Coordinator suggested a clause that requests the Secretariat to present options for scheduling the next session of the assembly and requests the bureau decide on the date of the 18th session. This version of the clause was agreed upon. The meeting was then convened for 45 minutes for discussion, which left 10 minutes in the session to resolve all remaining issues.  

Brazil was the first to speak in this last part of the session and suggested the following as the new proposed text of clause 91bis: “Recalling article 112 3(b) of the Rome Statute of the ICC, request the bureau to promote adequate discussions with a view to addressing the issue of equitable geographic representation within its structure”. Slovenia noted that this discussion was supposed to be an exercise in consensus, but they were only faced with the proposal 10 minutes ago and that this is not acceptable to them. They suggested just recalling articles 112 3(a) and (b) and encouraging the bureau to remain seized on this matter. Slovakia was in agreement with Slovenia regarding Brazil’s proposal as they thought it gave a sense of urgency that they do not believe exists and they were uncertain as to what “promoting adequate discussion” means. Macedonia agreed with Slovakia and Slovenia and noted that it seems they have a different starting point when it comes to this topic, as Eastern Europe feels there is adequate representation within the Bureau. Brazil responded by saying that they think the representation needs to be addressed and discussed, as the membership in the ICC went up and they need to address the new demographic or at least have a discussion about the new demographic so the bureau is representative. To try and find a middle ground, the Republic of Korea suggested the phrasing “calls upon the bureau to consider where possible the future composition of the bureau in light of article 112 of the Rome Statute”. Serbia and the Czech Republic were hesitant regarding this proposal and Brazil wanted more time to think about the phrasing of Korea’s proposal. With two minutes left, Austria gave a speech urging flexibility in phrasing and Brazil finally stated that if language that is not agreeable cannot be even considered then they will never have new language in the resolution.  

This session ended without consensus to 91bis. 

Informal Consultations on the Omnibus Resolution 2

Overview by Phedra Neel, Research Associate PILPG NL

Highlights:

• States Parties remained to disagree on Brazil’s proposed text on equitable geographical representation within the Bureau. 

• Discussion on the duration and date of the next ASP continued. 

• The session ran longer in order to attain a request for an amendment on a paragraph that was already agreed upon in previous sessions.

The consultations on the Omnibus Resolution reconvened on the fifth day of the ASP to finalize the discussions on the omnibus resolution by building onto revisions proposed during previous sessions. 

The first paragraph addressed was the new operational paragraph, which faced issues with its wording. Austria, Chile, Argentina and Greece supported the new operative clause. Korea on the other hand showed concerned with the formulation of this clause and additionally with the structure of the draft resolution, requesting a separate heading. Austria suggested that this can be solved by leaving enough space between this clause and the operative clauses. This clause was eventually agreed upon.

Paragraphs 9bis to 9quater were next. There was an alternative pending for these paragraphs existing of OP139 as proposed by Liechtenstein. As a reaction to previous concerns that OP9bis, ter and quarter were repetitive, France proposed an alternative OP that contained all three. However, many states (such as Kenya, Chile, Greece, Argentina, Austria, Sweden) felt like this was still too lengthy and unnecessary and thus preferred to support the proposal from Liechtenstein as this proposal referred to rule 42 of the Rules of Procedures and Evidence rather than reiterating selected sentences from it. The facilitator received a proposed consensus that will be discussed during the next session.

Following was the adaption of OP12bis and ter as there was no objection to the current form of the revised OP’s, including OP12 quarter to nonies. The substance of these articles was already agreed upon, but the level of appreciation was debated. Ecuador announced that they worked together with Mexico and came to the consensus to use the word ‘welcome’ for these specific OPs and all the other OPs in this section. This was approved by the entire session and thus agreed ad ref. OP18 and 20 were also agreed ad ref without any debate.

Next was OP71bis and 71ter, with regard to which Uganda suggested that the language was not specific enough and questioned why the text no longer mentioned that the oversight of the Bureau will take place on an annual or continuously basis. However, Uganda did not oppose the adoption of this OP and it was thus adopted ad ref.

The most debated OP was OP91bis on the equitable geographic representation within the Bureau as proposed by Brazil. Brazil explained that the number of States Parties have increased significantly over the years but that this is not reflected in the representation of the Bureau and that the time is ripe to address this issue. Brazil was supported by the Latin American states who spoke during this session (the facilitator had to close the floor as too many states wanted to express their opinion.) Many of the European countries such as Slovakia, Bulgaria, Hungary, Czech Republic, Poland, Serbia stated that the time was not ripe, that the Court was facing way more pressing issues such as dealing with universality, legitimacy issue, and the elections of a new prosecutor. Austria called for all states to come together in unity rather than to be divided on this issue and said that in principle they support Brazil’s proposal but that they are flexible in time. Lastly, Brazil clarified that including this OP only serves to open debate and asked if the timing is not right now, then when is it? Even after the informal consultations during the break, a consensus was not reached.

Subsequently, OP91ter was discussed again in relation to OP91ter alt on the duration of the ASP. Belgium expressed its concerns that reducing the ASP to five working days would negatively affect the possibility for the ASP to take decisions which would result in very general consensus seeking processes and thus hinder progressive development. There might also not be enough time to engage with civil societies, observer states, and with the court itself. The other states expressed different concerns: Argentina and Chile expressed concern with the reference to ‘subsidiary bodies’; the Netherlands and Portugal preferred the French alternative to give the Bureau the chance to make a decision on the matter and to not prejudge it already. Slovenia combined all the grievances saying that the other events surrounding the ASP are important with regards to its efficiency, that there is no need to already include ‘subsidiary organs’ and that the outcome needs not to be prejudged. To conclude, there was a lot of support for the amended French proposal. After the break, Brazil announced that together with the French and German delegation an agreement was reached that will be send to the facilitator. 

The next OP on the list was OP 123quater. However, the delegation of the Republic of Korea wanted to reopen the debate on OP104 and proposed a few minor changes in wording. Although this OP104 was already agreed upon in earlier sessions, the issues was addressed. After giving all states the chance to read the amendments, it was agreed, by voice of Austria, that the first two of the three proposed amendments would be accepted. 

Following, OP123quater in relation to the proposal of a mandate under §15 (15b) was discussed. Chile welcomed the great improvement in language but still suggested a few changes. Kenya explained that changes in language were needed. For instance, they suggested to have the words ‘any impact’ removed as they stated that an investigation always has an impact. The UK informed that progress was made during the break and that a final proposal will be communicated in due time.

To conclude, Mandate section number 7 was agreed ad ref without any debate. Mandate section number 19b (on the dates of the next ASP) is still open as the World Forum is already booked in December and the proposed dates in November overlap with a UN meeting. Austria asked the Secretariat to book the World Forum earlier on next times.