ASP20 Side Event: Justice Must Happen for Gambia

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

9 December 2021

Name of the Event: Justice Must Happen for Gambia (co-hosted by the Republic of Uganda and Africa Legal Aid)

Report by: Pauline Pfaff, Junior Research Associate PILPG-NL

Highlights: 

• The recently released report of the Truth, Reconciliation and Reparations Commission identifies former president Yahya Jammeh and others as perpetrators of grave atrocities and calls for criminal prosecutions.

• Any justice measures adopted should be victim-centered and -led.

• The panelists see the establishment of a hybrid tribunal as the best option to reconcile the various competing needs in The Gambia, including proximity to affected communities, security concerns, and mobilizing national and regional political will.

Speakers:

• Evelyn A. Ankumah, Executive Director of Africa Legal Aid;

• Reed Brody, International Commission of Jurists;

• Fatoumatta Sandeng, spokesperson Jammeh2Justice Campaign;

• Martin Kyere, survivor of the West African Migrant Massacre in The Gambia;

• Toufah Jallow, Gambia #MeToo Movement and founder of Toufah Foundation;

• Salieu Taal, President of the Gambia Bar Association;

• Justice Mbacke Fall, former General Prosecutor of the Extraordinary African Chambers and Prosecutor in the Hissène Habré case;

• Femi Falana, Nigerian constitutional lawyer;

• Adama Dieng, Special Advisor to the Prosecutor of the International Criminal Court

Summary of the Event: 

The moderator, Evelyn Ankumah from Africa Legal Aid, opened the side event with an overview of the most recent developments in The Gambia in relation to accountability for atrocity crimes committed by former head of state Yahya Jammeh and his associates.  On November 25, 2021, the Truth, Reconciliation and Reparations Commission (TRRC) issued its report on the crimes committed during the Jammeh era and recommended the prosecution of those most responsible.  Karim Khan, the prosecutor of the International Criminal Court (ICC), had previously tweeted that “Justice must happen” for The Gambia.  Ankumah further highlighted three fundamental agreements among the panelists: first, that there is a need for accountability; second, that justice should be delivered in a timely manner to victims; and third, that justice should be done at home, meaning within The Gambia, or as close to it as possible, in West Africa.  

The first speaker, Reed Brody from the International Commission of Jurists, played a video which elucidated the history and situation of The Gambia and included various victim statements.  The crimes committed include murder, torture, sexual violence and the forcing of HIV positive individuals to participate in fraudulent medical treatments.  Brody highlighted that the Gambian government is to publish a summary of the TRRC report and to introduce it to the United Nations General Assembly by December 2021.  Moreover, the government has a set timeframe of six months to publish a white paper on the implementation of the TRRC’s recommendations.  

Brody shared that there is a consensus among stakeholders, including victims, scholars, and non-governmental organisations, that a hybrid tribunal for The Gambia would be the most appropriate forum through which to pursue those recommended for prosecution by the TRRC.  He named the Economic Community of West African States (ECOWAS) as the appropriate partner for such a tribunal, as nationals of other African states were also victims of human rights violations during the Jammeh era.  He also presented ECOWAS’s involvement as having the potential to garner regional support, particularly, to persuade Equatorial Guinea to extradite Jammeh.

Next, Fatoumatta Sandeng spoke on behalf of the Jammeh2Justice Campaign to express victims’ perspectives.  She identified five fundamental demands: first, assurance – victims demand assurance that tangible steps towards accountability are taken.  Second, empathy – it is important that people can relate to what victims are going through on a daily basis and understand that traumas are present continuously.  Third, inclusion – victims want to be part of and take the lead in the justice process with the support of other stakeholders.  Fourth, justice to be done close to home to be able to relate and identify with it and achieve greater impact on the ground.  Fifth, she expressed a desire for justice to be done in a timely manner, recognizing that the process cannot take place overnight, but that it must remain an item on the agenda. 

The subsequent speaker, Toufah Jallow, went into greater detail on the modalities of  justice for survivors of sexual violence.  Due to the special characteristics of crimes of sexual violence, she expressed strong support for the use of restorative justice mechanisms.  She underlined the need for a broader societal process to facilitate the recognition of sexual violence and an attitude change to better prevent future crimes.  Further, a more dialogue-based restorative mechanism would lower barriers for survivors to tell their story and receive recognition for their suffering from both the perpetrator and the community.  She highlighted that within The Gambia local processes focused on restorative justice are present which could be centralized and standardized for a national approach to Jammeh’s crimes.

Salieu Taal, president of the Gambia Bar Association, focused in his statement on the possibility of a hybrid tribunal.  He reaffirmed that, no matter its form, any justice process in The Gambia is to be victim-centered.  Based on stakeholder consultations and expert meetings, a hybrid tribunal was identified as the best way to move forward in the specific situation of The Gambia.  Taal highlighted that such a court would be in geographical proximity to the victims and would, first and foremost, be Gambian.  At the same time, it would benefit from international support where Gambian resources and legislation are not capable on their own of prosecuting Jammeh and his associates effectively.  A hybrid court further accommodates for local specificities, such as the need, for security reasons, to try Jammeh outside The Gambia, while remaining in the region.  He noted that the ICC is physically distant, however, should be considered a measure of last resort if other, more regional approaches fail.

Next, Femi Falana cautioned to hold up the momentum created by the TRRC report and pledge of the Gambian government to implement the recommendations fully.  He agreed with Taal that it is not feasible, for political reasons, to try Jammeh within The Gambia and proposed to explore a similar route as taken by Sierra Leone in the Charles Taylor case and move the trial to a neighboring country, potentially Ghana or Nigeria.  He mentioned the establishment of a hybrid court as a viable alternative, either in cooperation with the African Union or ECOWAS.  Moreover, he raised the possibility for The Gambia to introduce the TRRC report to the United Nations Security Council to request the establishment of a special tribunal.

Next Martin Kyere, the only survivor of the West African Migrants Massacre, where 50 Ghanian and other West African migrants were killed by members of Gambian security forces in 2005, underlined the commitment of him and the families of the other victims to pursue justice.  He signaled their readiness to consult their lawyers on approaching other African courts or the ICC to seek justice if the Gambian government fails to implement the TRRC recommendations.

Finally, Adama Dieng, Special Advisor to the Prosecutor of the International Criminal Court, addressed the participants in a pre-recorded video statement and reiterated the stance that impunity is not an option for The Gambia.  Dieng underlined the importance of the principle of universal jurisdiction and the possibility for the ICC to step in if the Gambian authorities prove unwilling or unable to deliver justice. 

Following this statement, Ankumah opened the floor for questions.  Several victims of crimes committed during Jammeh’s rule expressed their support for the views and work of the panelists.  Participant Saramba Kandeh asked the panel how reparations may be incorporated into a hybrid tribunal.  Sandeng responded that extensive outreach programs in local communities will be necessary to explain that reparations are not the sole purpose of criminal proceedings, but justice.  She nonetheless acknowledged that reparation orders should form part of such a court’s mandate.  Jallow further stressed the importance of a parallel restorative justice approach to complement criminal proceedings.

ASP20 Side Event: Specialized Units for Investigating and Prosecuting International Crimes and Crimes of the Past: Efforts for Addressing Impunity for Crimes in Syria

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

8 December 2021

Name of the Event: Specialized Units for Investigating and Prosecuting International Crimes and Crimes of the Past: Efforts for Addressing Impunity for Crimes in Syria (Co-hosted by: International Center for Transitional Justice (ICTJ), France, Germany, the Netherlands)

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

Highlights: 

• There has been an increase in successful accountability efforts through national specialized units. Panelists shared experiences and the positive impact of specialized units for investigating and prosecuting international crimes in Europe, for instance in France and Germany. 

• Nonetheless, many remaining challenges need to be addressed, particularly in relation to the adequate protection of victims and the facilitation of cooperation and information exchange. 

Speakers:

• Anna Myriam Rocatello, Deputy Executive Director and Director of Programs of the International Center for Transitional Justice (ICTJ)

• H.E. Matthew Neuhaus, Ambassador of Australia to the Netherlands

• Howard Varney, Senior Program Advisor ICTJ

• Amelie Bequart, France 

• Ibrahim Al-Kasem, Executive Director of Caesar Families Association 

• Dr. Katarzyna Zduńczyk, Senior Researcher at the Foundation for Human Rights in South Africa

• Carlos Castresana Fernández, Public Prosecutor at the Court of Auditors of Spain

• Alexandra Lily Kather, Legal Advisor at DIGNITY

Summary of the Event: 

Anna Myriam Rocatello opened the event by introducing the latest research conducted by ICTJ (Report “Gearing Up the Fight Against Impunity. Dedicated Investigative and Prosecutorial Capacities” to be published in December 2021), which analyzes several specialized units for the investigation and prosecution of international crimes. ICTJ hopes its research will assist states in the implementation of the complementarity principle and strengthen efforts to investigate and prosecute international crimes. H.E. Matthew Neuhaus expressed his gratitude for the work of ICTJ and for convening this event, outlining that the event focuses on the investigatory phase, the impact on the victims and the accused, and the meaning and challenges of accountability for crimes in Syria. He commended efforts to advance accountability through national jurisdictions, noting that this is a fundamental aspect of the Rome Statute, and in particular referred to the recent landmark trial in Germany. With the support of UNITAD, a German court found a former IS member guilty of genocide against the Yazidi religious minority. According to Neuhaus, this shows “how universal jurisdiction can be leveraged by specialized units to seek accountability for such crimes.’’ He emphasized the importance of continuing work towards accountability, especially in dire situations such as in Syria, and commended the ICTJ and Foundation for Human Rights for their leadership on the issue of seeking accountability through the use of universal jurisdiction. 

Next, the floor was given to the panelists and contributors to the ICTJ report. Howard Varney, Senior Program Advisor ICTJ and co-author of the report, highlighted the importance of producing research on specialized units. He discussed the main findings of the report, explaining that specialized units are effective due to their ability to concentrate and centralize national efforts under one organizational entity, helping facilitate coordination and clear lines of responsibility. Specialized units foster closer cooperation between investigators and prosecutors, and he underlined their abilities in engaging in international cooperation, information exchange, and the implementation of best practices. Turning to specialized units and their role in ensuring accountability for Syria, Varney noted that there are 22 ongoing or completed cases concerning crimes committed in Syria. Whilst most specialized units are still in early stages of development, some emerging best practices can be identified, such as close collaboration with immigration services to help identify suspects, the establishment of units under law or statute rather than executive action, and the importance of signing cooperation agreements with CSOs to clearly delineate responsibilities and to regulate cooperation. Lastly, Varney suggested that regular roundtables should be held with CSOs to enhance the sharing of information and knowledge.

Amelia Becquart, shared experiences from the Central Office to fight Crimes against Humanity, Genocide and War Crimes in France, explaining that the office cooperates with other institutions in several ways. For instance, judges and prosecutors can refer a matter to the Office. Furthermore, she referred to a law from 2015, which introduced informational exchange, allowing prosecutors to be informed about rejected asylum applications and the reasons for their rejection. In relation to international cooperation, Becquart noted that France has positive experiences with mutual legal assistance in relation to Joint Investigation Teams (JIT), thanks to the EU. She also underlined the recent signing of a convention on judicial cooperation between France and the IIIM, allowing for reciprocal information and communication, which had not been possible previously. 

Next, Anna Rocatello welcomed Ibrahim Al-Kasem, Executive Director of Caesar Families, asking him to share his thoughts on progress regarding impunity for crimes committed in Syria, and to elaborate on any advantages or instances that give him hope regarding the situation. Lastly, she also posed the question of what civil society can collectively do to encourage states parties to promote and achieve more specialized units, better cooperation, and ultimately the satisfaction of victims. Al-Kasem thanked everyone for their participation, and ICTJ for its efforts addressing the situation of Syria. Noting that what is happening in Germany shows the fruits of cooperation amongst different units, he commended France and Germany for the issuance of arrest warrants against Ali Mamlouk, a high-ranking official in Syria. Al-Kasem then discussed challenges, such as the number of victims that have suffered in proportion to the ongoing accountability efforts. Further, he emphasized that many specialized units experience difficulty in the collection of evidence, leading to reliance on evidence from victims, which can result in retraumatization if not handled appropriately. He emphasized that victims need to be adequately informed about their role when submitting evidence, and that they also need effective protection, describing examples of victims who have become endangered because they have provided evidence to NGOs, and other bodies, without receiving appropriate protection.

The floor was then given to Katarzyna Zduńczyk, co-author of the report, who elaborated on numerous findings of the research, providing examples of several units ranging from “historical units’’ to “mixed-mandate units.’’ ICTJ’s research has shown that no clear pattern can be identified when it comes to the structure, operation, and composition of specialized units. She made note of the JIT of Germany and France in investigating crimes in Syria as an emblematic example. She also discussed the relationship between CSOs and specialized units, explaining that sometimes this relationship can be established through law.

Alexandra Lily Kather, sharing her practical experiences from the field as a consultant for multiple accountability actors, including civil society organizations (CSOs), noted that we are increasingly seeing the specialization of war crime units, as well CSOs in this line of work, as well as the criticism surrounding this. She stated that we are at a crossroad and should  “take a realistic stock of what this line of work entails’’, and of how the work of CSOs is responding to some of the limitations that war crime units experience, for instance through facilitating contact with witnesses. Kather also noted the significant work of international organizations such as UNITAD, underlining that the German case referred to by H.E. Matthew Neuhaus would not have been possible without UNITAD’s support. 

The last speaker, Carlos Fernández, emphasized the importance of specialized units in relation to the principle of complementarity, as they provide for the willingness and ability to address impunity. After sharing his views and thoughts on the Pinochet case, he explained that when faced with structural impunity, many are interested in preserving situations of impunity. To counter this, he stated, the establishment of a strong coalition, closely connected with the media, is required to initiate change. He concluded by noting the importance of specialized units being operated by experienced professionals in this field.

ASP20 Side Event: Trust Fund for Victims: Implementation of Reparation Awards in the DRC and Mali

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

8 December 2021

Name of the Event: Trust Fund for Victims: Implementation of Reparation Awards in the DRC and Mali (co-hosted by: Australia, Finland, Germany, Ireland, Italy, NL, UK, and the Trust Fund for Victims)

Report by: Claire Kaula, Junior Research Associate PILPG-NL, and Marielotte van Ballegooijen, Research Associate PILPG-NL

Highlights: 

• The Trust Fund for Victims provides an important role to support the implementation of reparations for victims. The Trust Fund for the Victims cannot do what they do without the support of Donor States

• The implementation of reparations in the Katanga, Lubanga, and Ntaganda cases from the Democratic Republic of the Congo are focused on providing  physical, psychological, and socio-economic reparations.

• The implementation of reparations in Al Mahdi case from Mali include memorialization reparations and are conducted with many consultations and community engagement.

Speakers:

• Kevin Kelly; Newly Elected to the Board of Director of the Trust Fund for Victims 

• Päivi Kaukoranta; Ambassador of Finland to The Netherlands

• Franziska Eckelmans; Legal Advisor to the Deputy to the Executive Director at the Trust Fund for Victims

• Henk Cor van der Kwast; Permanent Representative of the Netherlands to the Conference on Disarmament and Disarmament Ambassador

• Matthew Neuhaus; Ambassador of Australia to The Netherlands

• Kizita Frogwe; Program Manager at the Trust Fund for Victims in the DRC

• Tiade Lorenzo; Program Manager for one of the TFV’s Contracting Parties in DRC

• Maman; Program Manager for one of the TFV’s Contracting Parties in Timbuktu

Summary of the Event: 

The event began with remarks by Kevin Kelly, a newly elected member of the Board of Directors (hereinafter the Board) of the Trust Fund for Victims (hereinafter the TFV or the Fund), on the importance of the Fund and that both the assistance mandate and the reparations mandate be equally recognized and supported.  Kelly said that “the new Board of Directors of the Fund has made an early decision to prioritize [the Fund’s] support for this work on reparations for the year ahead” and plans to take a harm based, victim centered approach to reparative justice.

Päivi Kaukoranta, Ambassador of Finland to The Netherlands, presented Finland’s dedication and support to the Fund since its inception.  As announced on Monday, December 6, 2021, during the Channel debate, Finland will be significantly increasing its donations to both the assistance mandate and the reparations mandate with two separate contributions.  Ambassador Kaukoranta presented the importance of reparations by saying that Finland continues “to believe that the greatest achievement and innovation of the Rome Statute was to put victims at its heart”.

Following this contribution by Kaukoranta, Henk Cor van der Kwast, Permanent Representative of the Netherlands to the Conference on Disarmament and Disarmament Ambassador at large, commended the Board and all people who have worked on providing reparations, and emphasized that reparations are a fundamental part of the Rome statute.

Matthew Neuhaus, Ambassador of Australia to The Netherlands, then remarked that Australia is proud to support the Fund and its work.  He also welcomed the new Board member Kevin Kelly. 

Franziska Eckelmans, the legal advisor to the Deputy to the Executive Director at the TFV then gave an overview of the process of implementing reparations.  The Fund is there to complement the reparation awards, but the convicted person is the one liable.  The process can be ordered into three steps.  First, a Chamber orders a reparation.  Second, the Fund prepares a plan to provide reparations, which is approved by the Board and the Chambers.  The approval process takes about a year.  Third, reparation partners are contracted, who then begin outreach and intake of beneficiaries.  When reparations are fully implemented the reparation program is evaluated by a neutral third-party contracted by the Fund.  Throughout this entire process, the Fund is helping to track and support the implementation.

The event followed with an explanation of the implementation of reparations in the Katanga, Lubanga, and Ntaganda cases from the Democratic Republic of the Congo (DRC), and the Al Mahdi case from Mali.  In all cases, the reparation implementations are active except the individual reparations in the Katanga case and the symbolic reparations in the Al Mahdi case.  

Kizita Frogwe, program manager of one of the TFV’s Contracting Parties in the DRC, presented that all cases from the DRC (Katanga, Lubanga, and Ntaganda) have similar interventions because they are focused on the three rehabilitation perspectives namely, physical, psychological, and socio-economic.  Frogwe subsequently gave the floor to project managers and implementing partners to discuss the implementation of repartitions from each case. 

In the Lubanga case, Tiade Lorenzo, a program manager to one of the TFV’s Contracting Parties in DRC, discussed different aspects of the implementation of reparations.  First, the contact and intake process of the victims takes place.  Here, the informed consent of victims and strict adherence to confidentiality is of utmost importance.  Second, the areas of intervention are examined.  This is done through an evaluation of the victims’ on their physical and mental health.  The socio-economic reparations focus on income generation, specifically providing vocational training.  Currently the training is focused on small business and agriculture.  Third, there are challenges in providing reparations.  These are the overall insecurity in the region, and the high mobility of victims which makes it difficult to track and ensure they receive reparations. 

In the Ntaganda case, Frogwe provided an update of the process.  As ordered by the Trial Chamber, Frogwe and her team developed an urgent implementation plan focused on identifying the victims who had the most urgent needs.  This was approved and two partners are currently implementing this plan.  The team is also now working on submitting the draft implementation plan mid-December to receive approval from the Trial Chamber.  After this, they will begin procurement procedures and implementation.

Following the discussion on the DRC reparation implementations, the event followed with an overview of the Al Mahdi case reparation implementations from Mali.

Maman, the project manager in Timbuktu, presented the memorialization reparation implementation and challenges.  To implement the memorialization measure, Maman formed memorialization committees.  Each committee is made up of representatives from the neighborhood chosen by the community.  The committee discusses whether it is appropriate to memorialize the destruction of mosques and if so how to memorialize it.  The challenges they have faced include the resistance of a neighborhood Chief because more mosques had been destroyed that were not included in the ICC charges.  It was also a challenge to include women in the committees because generally the community did not believe women ought to make decisions relating to mosques.  Other challenges the committees have faced are the insecurity of the region and the poor infrastructure on communication connections.  Despite these challenges, the memorialization reparation implementation has been able to move forward with consultations and community engagement.

ASP20 Side Event: When Vetoes Prevent Accountability: a critical examination of blocking ICC referrals

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

8 December 2021

Name of the Event: When Vetoes Prevent Accountability: a critical examination of blocking ICC referrals (co-hosted by Canada, The Kingdom of the Netherlands, The Permanent Mission of Costa Rica to the United Nations, The Permanent Mission of Sierra Leone to the United Nations and the Parliamentarians for Global Action)

Report by: Pauline Pfaff, Junior Research Associate PILPG-NL

Highlights: 

• Professor Trahan elaborated on the argument that the veto power of the permanent members of the United Nations Security Council is embedded in the existing system of law and is thus limited in the face of atrocity crimes by ius cogens norms, the principles and obligations of the United Nations Charter, as well as other treaty obligations of the individual states, including those arising from the Genocide Convention and Geneva Conventions.

• Panelists called upon the United Nations General Assembly to request an advisory opinion from the International Court of Justice based on the proposed legal arguments regarding the potential unlawfulness of vetoing referrals to the International Criminal Court.

• The panelists underlined the need for upholding the rule of law and ensuring accountability for atrocity crimes to break cycles of violence and prevent collateral challenges, such as corruption.

Speakers:

• Melissa Verpile, Director of the Democratic Renewal and Human Rights Campaign, Parliamentarians for Global Action

• Ambassador (ret.) Hans Corell, former Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations

• Justice Richard Goldstone, Prosecution at the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda and Chair of the Independent Expert Review

• Professor Jennifer Trahan, NYU Center for Global Affairs, author of “Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes” and PILPG Senior Peace Fellow

Summary of the Event: 

Moderator of the event Melissa Verpile, Director of the Democratic Renewal and Human Rights Campaign by Parliamentarians for Global Action, introduced the panel discussion on the use of veto powers in the UNSC and their impact when they block referrals of situations to the International Criminal Court (ICC).

First, Ambassador Hans Corell addressed the UNSC’s operations generally, expressing disappointment with the current deficiency in statesmanship within the UNSC in relation to contemporary issues such as climate change and desertification, which threatens international peace and security. Further, Corell referred to the ongoing discussions on reforming the UNSC and highlighted that instead of a possible enlargement of the UNSC, reform should focus on how to better regulate the behavior of the members with veto power. He emphasized that the rule of law, both at the domestic and international level, is key to address such challenges and in particular the commission of atrocity crimes. Corell further underlined that the threshold to push for accountability today should be lower since - unlike in the 1990s - the UNSC does not have to establish new tribunals for a situation, but rather may refer them to the permanent ICC. Concluding, he commended Prof. Trahan for taking a legal approach to constraining veto powers to increase the prevention of core international crimes.

Justice Richard Goldstone agreed with Ambassador Corell and added that, as has also been recognized by the former UN Secretary General, the rule of law underpins the entire discussion. He cautioned, with reference to the Srebrenica genocide, that the threat of justice is not always an effective deterrent, but also underlined that there is strong evidence that states with effective justice systems experience lower crime rates than those without. He further highlighted that the concept of universal jurisdiction may not be considered as a full substitute to the ICC, since the powers of states acting on the basis of universal jurisdiction are more limited and situations may not be considered as a whole.  

Next, Professor Jennifer Trahan elaborated on the core arguments found in her book “Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes.” The book’s central axiom is that the veto power of UNSC permanent members is embedded in the existing system of law and thus should be constraint by ius cogens norms, the principles and obligations of the United Nations Charter, as well as other treaty obligations of the individual states, including those arising from the Genocide Convention and Geneva Conventions. Thus, the use of veto or the threat thereof should not be in contravention to any of these obligations. Prof. Trahan elaborated on this argument with the example of genocide: ius cogens and the Genocide Convention oblige all states to prevent or end such crimes. Therefore a veto against a referral to the ICC can hardly be in line with these obligations and should, in fact, be considered a breach of law.  

Panelists then turned to the question of realizing this argument in practice. Ambassador Correl and Justice Goldstone expressed that they found Prof. Trahan’s argument to be compelling and progressive. Both called upon the United Nations General Assembly to request an advisory opinion from the International Court of Justice (ICJ) regarding the unlawful use or threat of vetoes in situations of ongoing atrocity crimes, following Prof. Trahan’s line of argumentation. Ambassador Correl further elaborated that it strengthens the aforementioned political call on the UNSC permanent members to restrain the use of their veto power voluntarily and noted that it should always be kept in mind that the overriding purpose of international criminal law and the ICC is not only to punish perpetrators, but also to deter the commission of crimes. The deterrence function of international criminal law could be strengthened when the UNSC credibly conveys its commitment to accountability and willingness to refer situations to the ICC. Justice Goldstone in addition highlighted that the current use and threat of veto powers prevents important issues from being discussed within the UNSC, effectively rendering its mandate for peace and security insufficiently observed. 

Prof. Trahan agreed with Justice Goldstone and elaborated on the meaning of this deficiency, using the example of Myanmar and the situation of the Uyghurs in China - important situations that remain undiscussed. She called upon states to raise such contentious situations in creative ways with the UNSC, at least to create an official record. In addition to the call upon the UNGA to request an advisory opinion from the ICJ, she urged the Assembly to issue a resolution reaffirming the existing rules of law and how they limit the powers of the UNSC.

Finally, moderator Mrs. Verpile asked the panelists to comment on the collateral challenges of the lack of accountability for atrocity crimes based on the UNSC failure to effectively utilize its referral powers. Ambassador Corell raised concerns regarding the potential undermining of the UN Charter’s principles and the credibility of the UNSC itself. Justice Goldstone added that the example of Rwanda shows that when impunity prevails, circles of violence perpetuate themselves, which has the potential to destabilize entire regions. These protracted conflicts in turn lead to high costs in humanitarian relief due to an ever-growing number of victims. In addition, these situations divert attention from other pressing challenges such as climate change or global pandemics. Justice Goldstone added that the example of Rwanda highlights that accountability measures, in this case the establishment of the International Criminal Tribunal for Rwanda, play an effective role in breaking such cycles. Prof. Trahan seconded this and stressed that vetoes violate the permanent member’s duty to protect victims of atrocity crimes.

Following Prof. Trahan’s final statement, the moderator opened the floor to the audience. Dr. David Donat Cattin, Secretary-General of the Parliamentarians for Global Action, joined the discussion and highlighted the example of Afghanistan and the severe impact of corruption on peace consolidation efforts as another collateral cost of impunity for atrocity crimes. All panelists agreed, and Justice Goldstone highlighted ongoing efforts to establish an international anti-corruption court. Prof. Trahan further demonstrated the detrimental role of veto powers with the situations of Syria and Myanmar. The use of vetoes in the UNSC in relation to both cases has signaled impunity to offending governments. She referred to a study which establishes a direct link between vetoes within the UNSC and the use of chemical weapons. On this basis, Prof. Trahan concluded that UNSC vetoes continue to cost lives on the ground.

ASP20 Side Event: Paths to Justice and Accountability in Venezuela: Ongoing Initiatives by the International Community

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

8 December 2021

Name of the Event: Paths to Justice and Accountability in Venezuela: Ongoing Initiatives by the International Community (co-hosted by Un Mundo Sin Mordaza, Defiende Venezuela, Organization of American States (SOAS))

Report by: Guillermo Ferrer Hernáez, Junior Research Associate PILPG-NL

Speakers:

• Génesis Dávila, Founder and President, Defiende Venezuela

• Rodrigo Diamanti, President, Un Mundo Sin Mordaza

• Fernando Fernández, Human Rights Monitor Venezuela

• Santiago Cantón, Organization of American States Panel of Experts

• Joanna Frivet, Crimes Against Humanity Observatory

• Irwin Cotler, Organization of American States Panel of Experts

• Omar Adolfo Lares Sánchez, former mayor, Campo Elías Municipality; victim of political persecution; human rights activist

Highlights:

• The panelists called for the international community and civil society organizations’ further commitment to calling for the prosecution of the crimes committed by mid- and high-level officials in Venezuela.

• The panelists agreed that a genuine prosecutorial process cannot exist in Venezuela because of authorities' present reluctance to prosecute government officials.

• The panelists urged the international community to start parallel processes towards prosecuting the perpetrators of  international crimes.

• The panelists highlighted that there is still mass human suffering in Venezuela  that must end.

Summary of the event:

The first speaker, Santiago Cantón, reflected on the  lack of impartiality in the Venezuelan judiciary, and the agreement signed by the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) and the Venezuelan judiciary to investigate allegations of crimes against humanity committed by Venezuelan authorities.  Cantón argued that the signature of the agreement does not constitute a threat to the prosecution of these crimes.  He noted that an investigation has been opened by the OTP.

Cantón claimed that we will not see Maduro’s government collaborating with the OTP as that would require investigation into persons close to him.  Cantón argued that even if the OTP’s limited resources impact the investigative process, the investigation must continue in order to stop the suffering of the Venezuelans who are victims of crimes against humanity.

The second speaker, Irwin Cotler, described how he reported these human rights violations to the Human Rights Committee and emphasized the revolutionary nature of the collective referral of these cases to the ICC for prosecution.  Cotler expressed that the Venezuelan authorities not only committed these crimes, but also caused human suffering and deaths by weaponizing food and medicine.  He conveyed hope that justice for Venezuelans will be achieved and perpetrators will be held accountable.

The  third speaker, Joanna Frivet, explained the implications of positive complementarity within the Venezuelan investigation.  She argued that legislative and procedural reforms are necessary to comply with ICC standards, but noted that this will not be enough to achieve justice.  Frivet asserted that a genuine and transparent investigation of mid- and high-level officials needs to be carried out.  Moreover, she argued, the OTP ought to take action as soon as possible to preserve the evidence and put an end to the human suffering in Venezuela. 

The fourth speaker, Fernando Fernández, criticized the high level of impunity in the Venezuelan judicial system and emphasized its structural problems.  He made several arguments concerning the lack of transparency in the substantive and procedural aspects of this system.  Firstly, Fernández argued that the Venezuelan Criminal Code does not contain the same standards as the Rome Statute.  He noted that as long as this code remains without implementation and reform, it will be difficult to prosecute such crimes.  Secondly, he explained that the Venezuelan legal system does not include an impeachment process for high-level officials.  Fernández argued that this makes it impossible to achieve justice and accountability. 

Fernández expressed that there is a high probability that high-level officials will be impugned for committing these international crimes  and he gave several reasons for this.  First, he noted that several cases, which were referred to the Inter-American Court of Human Rights, will likely end with no conviction because of the difficulty of preserving evidence in such a long process.  Second, Fernández underlined Venezuela's history of endogamy and clientelism within judicial proceedings and argued that this tendency will eventually lead to impunity for perpetrators.

The discussion of the panelists then turned to the necessity of holding  mid- and high-level officials accountable for their actions.  Joanna Frivet argued that if the Venezuelan authorities only investigate low-level officials, the ICC’s liability threshold will not be met.  Therefore, she claimed, the ICC will no longer consider positive complementarity.  Following this, Irwin Cotler put forth that the international community needs to look at other remedies, for instance, the prosecution of these crimes under the principle of universal jurisdiction or the implementation of collective countermeasures against the officials.  Cotler also argued that Venezuela is a state party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and therefore, the Venezuelan state could be brought before the ICJ.  Then, Santiago Cantón asserted that even if the Venezuelan authorities try to show that they are taking measures to prosecute domestically, high-level officials will not truly be prosecuted.   Cantón argued that human rights defenders need to prove to the OTP that what has been or is being done is not enough and that justice is not currently operating in Venezuela.  The event concluded with the testimony of Omar Lares, former mayor of the Municipality of Campo Elías in Venezuela who was persecuted by government officials for defending Venezuela’s democracy.