ASP20 Side Event: Benchmarking in International Criminal Justice: Feasibility or Fiction?

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

7 December 2021

Name of the Event: Benchmarking in International Criminal Justice: Feasibility or Fiction? (co-hosted by: Germany, International Nuremberg Principles Academy and The Hague Institute for the Innovation of Law)

Report by: Ana Luz Manzano Ortiz, Junior Research Associate, PILPG-NL

Highlights: 

• Multidisciplinary experts on international criminal law agreed that measuring the effectiveness of the ICC is possible and necessary.

• The President of the Special Tribunal for Lebanon called for the creation of a culture of accountability for international criminal courts.

• A pioneer project by the CBF of the ICC has the promise of providing predictability measurements about the work of the court.

Speakers:

• Dr. Sam Muller, CEO of The Hague Institute for Innovation of Law (HiiL)

• Klaus Rackwitz, Director of the International Nuremberg Principles Academy

• Judge Ivana Hrdličková, President of the Special Tribunal for Lebanon

• Carolina María Fernández Opazo, Vice-Chairperson of the Committee on Budget and Finance of the International Criminal Court

• Dr. Marieke Wierda, transitional justice expert

• Dr. Juan Carlos Botero, Executive Director of the World Justice Project

Summary of the Event: 

This event centered around the question of measuring the work of international and regional criminal courts. The speakers brought together their expertise to provide different perspectives on the challenges and opportunities of monitoring the effectiveness of the system of international criminal justice.

The panel began with the intervention by German Ambassador Dr. Cyrill Nunn, who delivered an opening speech on the importance of bringing justice to victims of crimes against humanity (CAH). He reminded the panel that the promise that no one should go unpunished is one of the most important responsibilities of the international community, and that where domestic courts have universal jurisdiction, they act on behalf of this international community. 

Next, Dr. Sam Muller presented the work of The Hague Institute for Innovation of Law (HiiL) as a project that aims to measure the quality of justice people receive by international organizations. He shared that the project began as a way of measuring the success of the ICC, to defend the Court, and fight back against criticism. Dr. Muller emphasized that there is a global trend towards measuring instruments, and measuring justice is crucial.

For this purpose, HiiL works with experts on the rule of law and on the rights of victims, as well as experts from international criminal courts. These experts look at the question of international criminal justice from a broad perspective, focusing on several different measures and responses toCAH, and not solely focusing on international criminal courts as individual institutions. 

After that, Dr. Marieke Wierda, a transitional justice expert, shared her experience working with several international criminal law institutions, such as the International Criminal Tribunal for the former Yugoslavia. Dr. Wierda shared that there is a tremendous need to understand the effectiveness and the impact of measuring our work in general, and shared her perspective about some of the reasons why this has not been done extensively in the area of international criminal justice institutions.

On one hand, Dr. Wierda shared that the international criminal justice project as a whole has a very strong normative underpinning, which has limited the participation of other disciplines, such as sociology, politology, and anthropology, so there is a knowledge gap that needs to be filled.

On the other hand, Dr. Wierda opined  that there is a struggle with defining the goals of international criminal justice, and the result of this is that there is no consensus on how to best approach these goals through an effective methodology.

Following, Dr. Juan Carlos Botero presented his views on the benchmarking in international criminal justice. According to him, it is a hard reality that atrocities are very likely to keep happening, so working towards the maximum effectiveness of the system is crucial. Dr. Botero shared three main points about this. First, without measurement, international justice becomes an impossible task in the long run. Second, the system implies multiple parties with multiple goals that need to be aligned. Third, there is a competition between different ways for addressing mass atrocities, so we need clear standards for each one of the actors involved in the proceedings. 

The Vice-Chairperson of the Committee on Budget and Finance of the International Criminal Court (CBF), Carolina Maria Fernandez Opazo, proceeded to share her views on the need for strong institutions that effectively track the work of international courts. She argued that predictability of the ICC is crucial to protect its sustainability, a lesson learned from past experience. 

The concern that measurement could interfere with judicial independence is relevant, Fernandez Opazo explained, but when it is done properly it cannot be misused. She shared that the CBF has pioneered a project of performance indicators that has been tested on the appeals chamber of the ICC and, although the experience is limited, the performance indicators are promising. 

Fernandez Opazo shared that this pioneer project has three components: (1) a comparative activity indicators that would ideally generate a comparison with the other tribunals as in it how much work is being done and will also measure efficiency; (2) a resource use indicator, which would help tribunals to use resources properly and to know how much money is needed; and (3) timeline certainty indicators related to predictability. This way, only the management of the tribunal but also stakeholders, broader civil society, and victims would be informed of expectations concerning the timing of the tribunal.

Lastly, Judge Ivana Hrdličková from the Special Tribunal for Lebanon concluded that the ICC should be the central point of this exercise of benchmarking international criminal justice, as it is a huge investment for the international community and in many ways the pinnacle of the international criminal justice system.

ASP20 Side Event: The Role of Parliamentarians in Promoting the Universality of the Rome Statute: The State of Play in Today’s ICC

20th SESSION OF THE ASSEMBLY OF STATES PARTIES

7 December 2021

Name of the Event: The Role of Parliamentarians in Promoting the Universality of the Rome Statute: The State of Play in Today’s ICC (co-hosted by the Netherlands, the Republic of Korea and the Parliamentarians for Global Action)

Report by: Lilian Srour, Junior Research Associate, PILPG-NL

Highlights:

• ICC President Judge Piotr Hofmański underlined that promoting universal ratification of the Rome Statute is one of his top priorities during his terms as president of the ICC.

• The speakers shared their experiences from the ratification of the Rome Statute in Malaysia, Jamaica, Ukraine, and in neighbouring jurisdictions, discussing the wider implications. 

• Speakers discussed the need to address fake information and propaganda about the ICC, to mitigate the negative influence this can have on the promotion of the universality of the Rome Statute system and the ICC.

• Speakers called upon states to stand up for justice and provide the ICC with the necessary funding to ensure it can fulfil its mandate.

Speakers: 

• Dr. David Donat Cattin, Secretary General of Parliamentarians for Global Action

• H.E. Henk Cor van der Kwast, Permanent Representative of the Netherlands to the Organization for the Prohibition of Chemical Weapons and the International Criminal Court

• H.E. Yeondoo Jeong, Ambassador of the Republic of Korea to the Netherlands.

• H.E. Piotr Hofmański, ICC President

• Mr. Fabio Massimo Castaldo, MEP (Italy), Vice-President of the European Parliament

• Hon. Kasthuri Patto, MP, PGA Board Member

• Ms. Marina Bardyna, MP, Deputy-Chair, Committee on Foreign Policy and Inter-Parliamentary CooperationPresident of the International Criminal Court

• Dr. Angela Brown Burke, MP, Chairwoman of People’s National Party

• Ms. Oleksandra Matviychuk, Chairwoman of the Center for Civil Liberties (Ukraine)

Summary of the Event:

Dr. David Donat Cattin opened the event and gave the floor to the hosts of the event for their opening remarks: H.E. Henk Cor van der Kwast, Permanent Representative of the Netherlands to the Organization for the Prohibition of Chemical Weapons and the International Criminal Court, and H.E. Yeondoo Jeong, Ambassador of the Republic of Korea to the Netherlands.

H.E. Henk Cor van der Kwast commended Parliamentarians for Global Action (PGA) for their unrelenting efforts to promote multilateralism, human rights, and the rule of law. He emphasised that the universal ratification of the Rome Statute is key. In this regard, he expressed the need to encourage non-states parties to join the mission and standards of the ICC. He noted that only together in a coalition of states, parliaments, civil society, and all other stakeholders this can be achieved. H.E. Yeondoo Jeong, spoke afterwards, referring to the joint efforts of the governments of Korea and the Netherlands in promoting universality. He explained that Korea is actively involved in promoting the wider ratification of the Rome Statute by states, to fight impunity and deter the gravest crimes under international law. He emphasised, once more, that universality of the Rome Statute system can only be achieved once more states decide to ratify or accede to the treaty. He concluded by encouraging any country that may have doubts about joining the ICC, to ask the Netherlands or Korea for support, because they are ready to provide it. 

Next, keynote speaker Judge Piotr Hofmański, after thanking the PGA and the governments of Netherlands and Korea for convening this discussion, noted that promoting universal ratification of the Rome Statute is one of his top priorities as president of the ICC. In explaining why universality matters so much, he referred to the ICC’s mandate to fight impunity for the gravest crimes under international law, emphasizing that “this is a mandate that matters to all of humanity.” As the ratification of the Rome Statute strengthens the “rule of law domestically, as well as, internationally,” Hofmanski explained that “joining the ICC means reducing space for impunity at home and everywhere else in the world.” Therefore, the ratification of the Rome Statute ought to be in the national interest of every state, whilst simultaneously being an act that benefits humanity as a whole. To conclude, he underlined that attention should be paid to “the need for all states parties to implement the Rome Statute in their national laws, if they have not already done so.”

Hon. Kasthuri Patto, MP and PGA Board Member, shared experiences of Malaysia’s accession to the Rome Statute. She noted that Malaysia was the first, and hopefully last country, that deposited the accession instrument and subsequently withdrew it. For two decades, there was a vacuum of discussion on the ratification of the Rome Statute in Malaysia. In such circumstances, the spread of false information on social media represented a challenge faced by lawmakers and political parties. The spread of false information includes statements, such as, that the King will be ‘hauled to court’. To mitigate misinformation, she suggested that, in 2022, efforts can be made to steer the conversation towards discussing the benefits and importance of acceding to the Rome Statute. Ultimately, she emphasized, the Rome Statute does not conflict with Malaysia’s constitution.

The next speaker, Dr. Angela Brown Burke, MP, Chairwoman of People’s National Party, emphasized that the international community and states must cooperate to ensure that the most serious crimes are not ignored. She listed two main requirements for Jamaica to ratify the Rome Statute: political will and consolidation of national leader frameworks. Since 2002, the PGA has been working with parliamentarians from Jamaica towards the ratification of the Rome Statute and to counter the negative influence of neighboring countries, such as the USA, in this process. With ratification of a treaty taking place through executive decisions of the Cabinet in Jamaica, Dr. Angela Brown Burke has encouraged members of parliament to facilitate this step, and will continue such efforts in collaboration with the PGA. 

In her welcoming remarks, Ms. Marina Bardyna, MP, Deputy-Chair, Committee on Foreign Policy and Inter-Parliamentary Cooperation, expressed gratitude for the recognition of ongoing events in Ukraine, as mentioned by Dr. David Donat Cattin. She further explained that Ukraine is still in the process of ratifying the Rome Statute. The constitutional court in Ukraine declared the Rome Statute incompatible with the Ukrainian Constitution, resulting in considerable delay of ratification. Temporary occupation of certain territories in Ukraine by Russia have further hampered  ratification of the Rome Statute. To expedite the process of ratification, taking into account the difficulties of amending the constitution, Ukraine has recognized the temporary jurisdiction of the ICC twice, in 2013 and 2015 respectively. Despite the numerous obstacles currently experienced in the ratification process, Ms. Marina Bardyna is convinced that ratification of Rome Statute will allow it to employ mechanisms to achieve international justice.

Dr. David chimed in by emphasizing the need to counter the fake news and propaganda that joining the ICC would give Ukraine a disadvantage in relation to Russia, and perhaps that this effort could be made in February.  

Ms. Oleksandra Matviychuk, Chairwoman of the Center for Civil Liberties (Ukraine) first mentioned that Ukraine celebrated the anniversary of the Revolution of Dignity the previous week. She discussed events that have taken place since 2013, before moving to elaborate on former ICC Prosecutor, Fatou Bensouda’s announcement of the conclusion of the preliminary examination of the situation in Ukraine in December 2020. Due to a number of factors, including budgetary constraints, the authorization of the opening of an investigation into the situation in Ukraine has been postponed for a year already. As such delays contradict effective justice, she suggested three recommendations. Firstly, she called on the Assembly of States Parties to adopt a budget that accommodates the Office of the Prosecutor with the resources to open an investigation, as well as to deliver effective justice to victims. Second, she called on the ICC Prosecutor to request authorization to open an investigation. Third, she called on the international community to make consolidated efforts to pressure Ukrainian officials, particularly the president, to ratify the Rome Statute and to immediately sign the Draft International Humanitarian Law Implementation Bill no. 2689.

Dr. David Donat Cattin responded by noting the independence and impartiality of the ICC Prosecutor in the conduct of investigations. He further emphasized the need to ensure that adequate funding is available to the ICC to ensure that it can deliver justice. Following this, Henk Cor van der Kwast thanked all speakers for the valuable insights into their respective situations. Like Dr. David Donat Cattin, he underlined the need for states to provide the ICC with the required budget, especially in light of the experiences shared during this event.

Mr. Fabio Massimo Castaldo, MEP (Italy), Vice-President of the European Parliament, shared his thoughts through a pre-recorded video in which he asked “how can we protect any democratic society when the most grave crimes remain unpunished, fueling a culture of impunity.” He emphasized that full implementation of the Rome Statute includes complementarity and provisions on state cooperation. Furthermore, he noted that the European Parliament is ready to make use of every possible avenue and opportunity for political dialogue to advance the ratification of the Rome Statute. Mr. Fabio Massimo Castaldo highlighted the importance of global campaigns by civil societies against impunity, explaining that these are essential to generate political endorsement and mobilization of support for the Rome Statute, and for states affected by human rights violations and abuses of power. He stressed the importance of the role of organizations, such as PGA, in the promotion of the universality of the Rome Statute. Concluding, he encouraged all 27 EU members who are States Parties to work together to pressure the European Commission to resume its direct support to civil society to achieve universality.

Participants and speakers discussed the utility and importance of engaging media in efforts to inform the public about the ICC and the Rome Statute, and the implications of a lack of information. Dr. Anegla Brown underlined the importance of bringing abstract discussions relating to international obligations of states to the general public through engaging them locally in the conversation, among others. Dr. David Donat Cattin concluded by stating that “we need to convey the message that the national interest to join [the ICC] equates to the interest of humanity to protect civilians and other vulnerable persons against crimes against humanity, genocide, war crimes and the crime of aggression.”

ASP20 Side Event: Climate Crime at the International Criminal Court

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

6 December 2021

Name of the Event: Climate Crime at the International Criminal Court (Hosted by: Republic of Vanuatu) 

Report by: Ana Luz Manzano, Junior Research Associate, PILPG-NL

Highlights: 

• 2020 was the most dangerous year on record for environmental activists, with 277 lethal attacks. 

• In October 2021, as part of the campaign for the inclusion of the crime of ecocide in the Rome Statute, ThePlanetVs submitted a case to the ICC concerning the mass deforestation of the Amazonian forest.

• Panelists called for action to present requests under Article 16 of the Rome Statute for climate crimes.

Speakers: 

• Lina Torres, Director of Projects and Strategy with Movilizatorio 

• Seema Joshi, Director of Campaigns with Global Witness 

• Alison Cole, Indigenous Law, Human Rights & Environment Consultant with Students for Climate Solutions 

• Maud Sarlieve, Legal Consultant with ThePlanetVs

Summary of the Event:

The first of two ASP side events on Climate Crime at the ICC hosted by Vanuatu was moderated by Alison Cole, an international crimes advocate with Students for Climate Solutions. She, along with the three other panelists, highlighted some of the ongoing global efforts to fight climate change through strategic litigation at international courts.

The first speaker, Lina Torres, shared details on the Guardians of the Forest Campaign by Movilizatorio. Movilizatorio, a citizen engagement and social innovation hub with offices in Mexico, Colombia, and Argentina, works with collective leadership as an engine for social change with the use of technology tools. Their aim is to promote the agendas of underrepresented stakeholders within the democracies in the Latin American region. With an alliance of indigenous and local communities, ignited after the 2016 Paris Accords, the Guardians of the Forest Campaign strives for the mobilization of public opinion to understand the critical role of indigenous and local communities in the prevention and the fight against climate change.

Torres presented a series of challenges, as identified by the hub, that indigenous leaders and local communities from around the world share in their fight against climate change. First, the killing and persecution of environmental defenders. Second, the demand for the right of indigenous and local communities to be informed with regards to projects with an environmental impact. Third, the fight for land rights recognition. Fourth, the request for traditional knowledge to be part of climate change policies. Lastly, the right to seek direct access to climate funding. 

The campaign focuses mainly on the prosecution of killings of environmental activists. In fact, there has been an increase in climate advocates deaths: from 2017-2020, 327 environmental leaders were murdered worldwide, with 69% of them being indigenous or local leaders. However, according to Torres, the convergence of illegal and state actors in the attacking of environmental leaders makes accountability especially difficult. Ultimately, indigenous and local communities “serve as human shields of their territories”. Torres concluded her intervention by reflecting on attacks of several activists, including Bertha Cáceres, who was murdered in Honduras, and Ari Uru-Eu-Wau-Wau, who was murdered in Brazil. 

Next, Seema Joshi presented the case of the liability of private actors in environmental impacts. As the director of campaigns at Global Witness, she campaigns for the investigation and exposure of abuses of power that are driving the climate breakdown. She considered the accountability gap present in the environmental crisis and explained that, according to evidence, the climate crisis intensifies violence against those protecting our planet. In 2020, 227 lethal attacks were reported against environmental activists, making it the most dangerous year to record, all of them taking place in the Global South. 

A disproportionate number of attacks are against indigenous people. Although these communities make up only 5% of the world’s population, a third of the attacks against environmental activists are against indigenous people. Global Witness calls for due diligence regulations for companies, especially for large brands of international mining. Joshi emphasised that the absence of precedents in climate crimes should not deter the use of litigation to fight for international environmental justice.

The next panelist, Maud Sarlieve, spoke about the case that ThePlanetVs presented to the ICC in October 2021 on the mass deforestation of the Amazonian forest conducted by Brazil’s president. Sarlieve recognized that this case may not be admissible, but noted it may bring to light the current limitations of the Rome Statute in targeting climate crimes. She proposed that the Rome Statute, as an anthropocentric treaty, is concerned with the impact that attacks have on civilian populations. Therefore, the mass deforestation of the largest tropical forest of the world should be analyzed in function of the impact it could have on the local and global population.

Moderator Alison Cole concluded by referring to the Ecocide Campaign. With the use of a creative interpretation of the Rome Statute and Article 15 submissions, an amendment to the Rome Statute could be an important move towards environmental justice.

ASP20 Side Event: Survivors’ Pathways to Accountability: Legal Avenues for South Sudanese Survivors of Conflict-Related Sexual Violence

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

6 December 2021

Name of the Event: Survivors’ Pathways to Accountability: Legal Avenues for South Sudanese Survivors of Conflict-Related Sexual Violence (Hosted by: Legal Action Worldwide (LAW), The Netherlands)

Report by: Guillermo Ferrer Hernáez, Junior Research Associate PILPG-NL, and Marielotte van Ballegooijen, Research Associate PILPG-NL

Highlights: 

• The panelists called on the South Sudanese Government to further the establishment of the Hybrid Court of South Sudan (HCSS) which has been a contentious issue in South Sudan.

• The panelists compared the road to accountability and justice in South Sudan with the transitional justice process in Uganda.

• The panelists emphasized the need for the victims to participate in trials, allowing their voices to be heard and their testimonies to be shared in order to achieve justice.

Speakers:

• Susan Okalany: Judge, High Court of Uganda & ICC Prosecutor Candidate

• Jackline Nasiwa: Executive Director, Centre for inclusive Governance, Peace and Justice and Senior Peace Fellow, PILPG

• Kenneth Scott: Prosecutor & International Human Rights Lawyer

• Antonia Mulvey: Executive Director, LAW

• Bahia Tahzib-Lie: Human Rights Ambassador, Ministry of Foreign Affairs, The Netherlands

• Jehanne Henry: Moderator of the event

Summary of the Event:

The first speaker, Bahia Tahzib-Lie, Human Rights Ambassador at the Ministry of Foreign Affairs of The Netherlands, opened the event by highlighting that victims of conflict-related sexual violence do not feel that perpetrators are held accountable for their crimes. This is a pattern that most human rights organizations find when interviewing victims. The victims feel that the perpetrators will never be prosecuted under state's authorities considering the Government’s unwillingness to prosecute. Tahzib-Lie highlighted that victims in South Sudan are demanding their right to justice and that this process needs to start with providing adequate justice reparations in order to achieve accountability. Tahzib-Lie emphasized that certain steps are being made in the right direction, as the Netherlands, in particular, supports this transitional justice process in South Sudan. However, there are still limitations as South Sudan unwillingness, and potentially inability, to start investigations provide for an obstacle to the process.

The second speaker Jackline Nasiwa, PILPG Senior Peace Fellow and Executive Director at Centre for inclusive Governance, Peace and Justice, contextualized the reality of victims of conflict-related sexual violence by pointing out the presence of violence in major areas in South Sudan. She highlighted three reasons why victims may not be willing to speak out. The first is that many of the survivors have other major concerns related to their basic necessities, such as their livelihood, health, or even being able to eat. Nasiwa provided examples of witnesses who had physical injuries and/or suffered mental trauma which should be addressed first before having them participate in trials.

The second reason, Nasiwa discussed, is that some of the victims might feel reluctant to talk because there is still intercommunal violence. Considering that there is not enough protection for the victims to speak to authorities or courts, victims may not feel comfortable sharing their testimonies. This safety issue is also caused by the committees that recollect victim testimonies who are made up of politicians or leaders that were part of the conflict. These figures might claim that victims advocate for a political reason.

The third reason Nasiwa mentioned is that survivors are not mentally prepared to do so. In order to help victims speak about their experiences, trauma healing training is necessary for those who are conducting investigations in South Sudan.

The third speaker, Susan Okalany, Judge at the High Court of Uganda and ICC Prosecutor candidate, drew some comparisons with the South Sudanese conflict and the Ugandan conflict. She claimed that the lack of comprehensive legal framework in domestic courts hinders the justice process. Several amnesty laws passed by the Ugandan Government make it impossible to prosecute major perpetrators of sexual violence, leaving them impune. In addition, Geneva Conventions could not be applied to the conflict because the conflict cannot be considered an international armed conflict. Despite this, Judge Okalany considered that perpetrators could still be charged with national and international core crimes under customary international law, following judicial cases from Commonwealth tribunals.

Another issue brought by Judge Okalany, and agreed upon by the other panellists, was the victim's participation in trials. Okalany argued that the victims should be able to participate throughout the trial as opposed to when the trial is done and reparations are made. This ensures that the victims participate in their own justice process. In order to ensure their participation from the beginning till the end of the trial, she applied mutatis mutandi the Rules of Procedure and Evidence of the International Criminal Court.

The fourth speaker Antonia Mulvey, Executive director of LAW, reiterated that the victim's participation in justice processes is crucial for the achievement of peace. Documenting the names of victims and the locations where the crimes have been committed needs to take place to ensure there is evidence for future trials. With this, however, she argues that the victims must be offered enough protection if the victims cannot stay anonymous, as this could cause serious problems for their safety. Through Mulvey’s role as an interviewer of victims during the Rohingya crisis, she concluded that most of the victims wanted the ICC to start an investigation. Six months after Mulvey conducted these interviews, ex-ICC Prosecutor Bensouda decided to open an investigation in the Bangladesh border with Myanmar.

The fifth speaker Kenneth Scott, prosecutor and international human rights lawyer, emphasized the necessity to establish a hybrid court in South Sudan. Scott condemned the UNSC unwillingness to refer the case to the ICC as well as South Sudan's refusal to accept the ICC jurisdiction. Scott concluded the discussion by providing that the ICC could claim jurisdiction based on the Bangladesh/Myanmar case considering that most of the South Sudanese survivors were displaced to Uganda, a neighboring state that has ratified the Rome Statute.

ASP19 Side Event: Assessing the Independent Expert Review Report’s Findings and Recommendations on Victims’ Rights: The Perspectives of NGOs

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

18 December 2020

Name of the Side Event: Assessing the Independent Expert Review Report’s Findings and Recommendations on Victims’ Rights: The Perspectives of NGOs - A Tribute to the Legacy of Dr. Felipe Michelini
(Co-hosted by the Permanent Mission of Italy to the UN, International Center for Multigenerational Legacies of Trauma (ICMGLT), International Federation for Human Rights (FIDH), Parliamentarians for Global Action (PGA), Redress and Victims’ Rights Working Group)

Report by: Shaya Javadinia & Isabelle Jefferies, Junior Research Associates PILPG-NL

Highlights: 

• This event presented an NGO perspective to the IER’s findings and recommendations relating to victims’ rights within the Rome Statute system and was structured around the three main features of victims’ rights: participation, protection, and reparations.

• At its 18th session in 2019, the Assembly of State Parties commissioned the Independent Expert Review (IER) of the International Criminal Court and Rome Statute system. The IER published its final report containing extensive findings and recommendations to strengthen the Court on 30 September 2020. After lengthy informal consultations, the 19th Assembly adopted a resolution creating a mechanism to follow-up on the implementation of these recommendations, during a plenary meeting that took place just after this event. 

• This event was a tribute to Dr. Felipe Michelini, who dedicated his life to the rights of victims, and sadly passed away in April 2020.

Summary of the Event: 

Ambassador Stefano Stefanile, Deputy Permanent Representative of Italy to the UN, opened the side event, taking place in the margins of the first day of the resumed 19th ASP in New York. He noted that Italy has been at the forefront of the promotion of victims’ rights at the ICC and that it attaches great importance to the Trust Fund for Victims (TFV). Ambassador Stefanile called on all States Parties to the ICC to sustain the TFV and encouraged fundraising efforts among private stakeholders, a recommendation also made by the IER. 

Analia Banfi continued by remembering Dr. Felipe Michelini, Chair of the Board of Directors of the TFV who sadly passed away in April 2020. Ms. Banfi, a Human Rights specialist at the Inter-American Commission on Human Rights, and a professor at Georgetown Law School, and a very close friend and former student of Dr. Michelini, shared some of the main legacies of his work and personal history with human rights issues. Dr. Michelini’s sisters were political prisoners and his father, Senator Rafael Michelini, was killed during the Uruguayan dictatorship. Perhaps as a result of his experiences, his contribution to human rights always revolved around one central aspect: the rights of victims. He strongly believed in the need for the right to reparations for human rights violations, as there is no justice without reparations. As an illustration of Dr. Michelini's dedication to victims, Mrs. Banfi spoke about the Plan Condor Trial. The Condor Plan was a campaign of political repression against opposition to the right-winged governments of South America that took place in the 1970s, under which Dr. Michelini’s father was killed. After the Uruguayan parliament passed a law to prevent the prosecution of human rights abuses committed during the dictatorship, Dr. Michelini helped the families of victims achieve justice through Italian courts. In December 2019, a historical conviction was achieved for several of the key leaders of the Condor plan. Furthermore, in 2015, he was appointed as a member of the Working Group for Truth and Justice in Uruguay mandated to investigate crimes against humanity committed between 1968 and 1985. Thanks to his work, the Working Group was granted access to military archives, which is an important element in any prosecution, and the search for the whereabouts of those who disappeared during the dictatorship was reactivated. 

The discussion moved onto the merits of the work on victims’ rights, with a discussion structured around three main features: participation, protection, and reparations. Delphine Carlens, Head of International Justice Desk at the International Federation for Human Rights (FIDH), presented the framework for the participation of victims in ICC proceedings. Under the Rome Statute, victims have a right to participate in proceedings and express their views and concerns where their personal interests are affected. Victims are crucial to the ICC, as they support justice by providing a factual and cultural context to the commission of crimes, provide evidence, and contribute to the legitimacy of the ICC. Mrs. Carlens conceded that victim rights under the Rome Statute are innovative, so the Court is expected to take some time to identify the modalities for effective and meaningful participation of victims. 

FIDH submitted observations and recommendations to the IER, based on consultations with victims from situations under preliminary examination and investigation by the Court. FIDH’s main finding was that victim participation is overly complex and bureaucratic, sometimes inconsistent, and far removed from the reality that many victims find themselves in. The IER reflected some of these concerns and made the interesting finding that judges have considerable discretion in terms of victims’ rights, as the Rome Statute and its texts provide little guidance on the practicalities of victims participation. However, the IER report refers to certain common misconceptions about victim participation in ICC proceedings, and fails to respond to them adequately. For instance, the IER report refers to the common idea that victim participation increases the length of proceedings. However, there is no basis for suggesting that victim participation has this effect. Furthermore, the IER report refers to another common misconception that victim participation increases the cost of the Court. However, Mrs. Carlens believes that the impact of victim participation on the budget of the ICC is minimal. On the other hand, the 0% growth policy of the ICC’s budget has impacted victim participation. In fact, legal representatives for victims have faced budget cuts that have impacted their capacity to represent victims in proceedings. Mrs. Carlens emphasized the crucial role played by judges in ensuring the implementation of victims’ rights, and in guaranteeing their meaningful participation in all stages of the proceedings. Hence, the new judges elected at the 19th ASP must find ways to improve the scheme and harmonize it, without narrowing the participatory rights of victims.   

David Donat Cattin, Secretariat General for Parliamentarians for Global Action, continued the discussion. For him, the independent experts struggled between two exigencies. On the one hand, they wanted to address the concerns of states, such as the time-consuming and costly nature of victims’ rights. On the other hand, they responded to the demands of civil society for more meaningful participation of victims, whereby they participate early on in the proceedings, understand what their role is, and expectations are met by the court. Dr. Cattin stressed that judges need to know how to address victims, who are survivors of heinous crimes. He invited people to consider Finding 865 of the IER, on the issue that judges can require notice of the questions legal representatives propose to put to witnesses. He argued it is not right to allow victims to participate, but impose a matter of weeks before they can actually be asked questions. He emphasized the need for immediacy in the interaction among parties, something which Recommendation 340 does not provide.    

The discussion then moved onto the second feature of victims’ rights under the Rome Statute system: protection. The IER only provides one finding in this regard. Dr. Cattin pointed participants to Finding 481 concerning redactions. Redactions are included in Court decisions to conceal certain information and are fundamental for the protection of victims and witnesses. Under Article 68(1) of the Rome Statute, the Court has the obligation to take any possible measures to safeguard the safety, security, privacy, and well-being of victims and witnesses, and redactions are probably the most common way of doing this at a procedural level. However, Finding 481 stipulates that the use of redactions by the Court is probably the most significant factor in causing international criminal trials to last long. The IER does not make any recommendation on this basis, as the experts likely recognized the need to safeguard the safety, security, privacy, and well-being of victims and witnesses, even at the detriment of the efficiency and expeditiousness of trials. Dr. Cattin also stressed the importance of preventing re-victimization of victims at the hands of the Victims and Witness Section (a body within the Registry responsible for protective services to victims).

The discussion then moved onto the third feature of victims’ rights under the Rome Statute system: reparations. By contrast to protection, the IER report covered a lot regarding reparations. The floor was given to Alejandra Vicenti, Head of Law at Redress.  She began by calling attention to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which just celebrated its 15th anniversary. The adoption of these principles followed the entry into force of the Rome Statute, and was a key moment for victims rights. Mrs. Vicenti believes that the expectations of victims within the ICC system have so far not been met. In 2019, Redress published a report entitled “No Time to Wait: Realising Reparations for Victims before the International Criminal Court”, which analyzed some of the challenges that exist within the court. Some of its recommendations were also made by the IER. For instance, both reports highlight the profound delays in awarding and implementing reparations. For instance, although Lubanga was convicted in 2012, it was only in 2020 that the Trust Fund announced the delivery of service based reparations. Moreover, in the Katanga case, the conviction took place in 2015, and monetary reparations ordered by the Court have been paid. However, the victims received a sum of 250 dollars each, and it is questionable whether this constitutes an effective reparation to address the harm they suffered. Lastly, the Al Mahdi case is another example in which the Court ordered the payment of reparations in 2017, but the contracts for these payments were signed only in 2020.  Furthermore, Mrs. Vicenti explained that the number of beneficiaries of the TFV is unclear, as the number presented includes both direct victims, and indirect victims (the relatives of the victims). This raises a number of issues, as the calculations are merely based on average numbers and not all victims have received the same level of assistance from the TFV. As a result, the true impact of the TFV is difficult to assess. More transparency is needed to overcome these issues, Mrs. Vincenti concluded. 

Furthermore, the IER has identified difficulties faced by the TFV in receiving funding.  So far, it has been unable to meet its fundraising goals for its reparations awards, reparations orders, and expansion of its assistance mandates. The IER linked this to ineffective fundraising strategies and governance issues. This is also directed at states, which have an important cooperative role in asset recovery and enforcement of orders against individuals. But it is debatable whether states can always be expected to be the main contributors to the TFV. Some of the problems identified in this regard are a lack of consistent approach of the Chambers, but also the capacity of the TFV to implement reparations and its ability to respond to judicial requests in a timely manner. For instance, in the Al Mahdi case, the Chamber complained that the TFV had not provided an implementation plan by a certain date. On this topic, Dr. Cattin joined the discussion and stressed that when judges are not familiar with reparation proceedings, the matter is referred to the TFV while this is not the task of the TFV. The IER has suggested a new interpretation of the process, by viewing the reparation stage as a continuation of the trial (an approach which is not excluded by the Rome Statute). This approach could shorten the process, without infringing on the rights of the accused. Mrs. Vicenti agreed with Dr. Cattin on this point and referred to the IER as a “breath of fresh air” that could help overcome certain challenges associated with the current process. She explained that this is not a critique to the TFV, and all organs of the Court should work on developing a consistent approach, which could also help with managing the expectations of victims as to what they can(not) expect from the ICC.  

The floor was then given to Dr. Yael Danieli, founder and director of the International Center for Multigenerational Legacies of Trauma. She highlighted the value of having people, such as Dr. Michelini, of high moral integrity and authority working for the TFV and the Court as a whole. It is important that those who listen to victims of heinous crimes understand and have the capacity for empathy for the most vulnerable. Dr. Danieli stated that “Justice is not only about the outcome but equally about the process. Any interaction between victims and the ICC is a moment of opportunity for healing, or a moment for disappointment and (re)traumatization. How early do we attend to the victims? As early as possible. Even before we plan to see them with this vision in mind.” In the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and in the Remedy Resolution, victims are considered victims regardless of whether the perpetrator has been found or is planned to be brought to justice. 

She argued that the TFV is called an “independent organ” partially because of political reasons, and partly because the Court did not want to be involved in the process of the Fund, which could have negative repercussions. While there is now a better understanding among the various organs of the Court, particularly the registry and the TFV, in Dr. Danieli’s experience, judges are still seen as the weakest link who need to go through mandatory training on victim rights and optimal care. She expressed her belief that ICC judges are not prepared to adopt a consistent strategy when it comes to victims and therefore proposed a series of guidelines on this matter. 

Dr. Danieli announced that the TFV will publish a report on Monday 21 December 2020, in which it will address the issue of humanitarian aid vs. justice-based assistance. She pointed out that the issue of time is one of the most important challenges between victims and justice, and is a matter of urgency. Moreover, Dr. Danieli discussed the issue of outreach by arguing that the TFV needs to do better in its own outreach, public relations, and education of the public on its work, process of decision making, and operations. She recommended that the ASP, states, and private institutions follow Sweden’s example of consistently supporting the TFV, and reminded the states that they have committed to the Court’s reparative justice mandate. 

Following the discussion of the panelists, Dr. Cattin opened the floor for questions from the audience. One of the questions concerned the role of victims in ICC proceedings and asked whether victims are essentially playing the role of a second prosecutor. The panelists discussed that victims do not intervene beyond their role. They can even be considered as an ally to the defendant since they want the truth to be revealed and the right person to be convicted. This is also why the prosecutor has an obligation to find evidence against the accused and to acquit the accused if not guilty. Moreover, it is necessary for the judges to understand the victims. For that reason, it is important for the judges to be trained on victim participation at the ICC, regardless of their domestic background. The IER has discussed this issue and recommended that new judges receive a comprehensive introduction to the practice, law, and culture of the ICC.

Another question concerned the balance between the independence of the TFV and its need to have a direct link with the Court. The independence of the TFV is based on Article 79(1) of the Rome Statute, which states that the TFV shall be established by the ASP. The TFV is not a judicial or prosecutorial body, and it has to remain autonomous and professional. Its independence is not the type of independence that prosecutors and other organs of the Court have, but a type of autonomy that separates the TFV from the judicial institution the Court is. It still requires close, coherent, and predictable coordination, however.