November 2019

Monthly News Updates: Domestic Prosecution of International Crimes (DPIC) - November 2019

By Raghavi Viswanath and Erez Roman Junior Research Associates PILPG-NL

November was an important month for universal jurisdiction. Notably, victim groups initiated proceedings for the prosecution of core crimes in Norway, Sweden, and Argentina. This post provides an overview of some of these developments, and compiles updates on other domestic prosecutions of international crimes.

EUROPE

France | France's Lafarge has charge of crimes against humanity lifted

A French appeal court rejected a preliminary charge of “complicity in crimes against humanity” brought against cement maker Lafarge, part of Lafarge Holcim, over its operations in Syria.  But the French company still faces investigation into charges of “financing terrorism”, endangerment of people’s lives and violation of sanctions. (Nov. 7, 2019).

Belgium | Rwanda official on trial in Belgium over 1994 genocide

The trial of Fabien Neretse, a former Rwandan official and alleged Hutu militia leader, has commenced in Belgium.  Neretse is accused of committing genocide in Rwanda in 1994.  This is the fifth trial in Belgium in relation to the conflict in Rwanda of 1994 but the first in which the accused has been charged with the crime of genocide.  (Nov. 4, 2019).

Sweden | Iranian citizen arrested for crimes against humanity 

An Iranian citizen has been jailed in Sweden on the suspicion of carrying out crimes against humanity and murder in Tehran between July 28, 1988, and August 31, 1988.  His alleged crimes correspond with the end of Iran’s long war with Iraq, which began when Saddam Hussein invaded Iran in 1980.  (Nov.13, 2019).

Bosnia-Herzegovina | Former Serb soldiers plead guilty to crimes against humanity

Former Bosnian Serb Army soldiers Radovan Paprica and Slavko Ognjenovic pleaded not guilty at the Bosnian state court to crimes against humanity including rape and sexual abuse in the Foca area during the war in 1992.  (Nov.13, 2019).

Norway | Syrian torture survivors file complaint against the Syrian military

Five torture survivors from Syria have filed a criminal complaint in Norway against officials from the Syrian intelligence services and military.  The victims, supported by several human rights groups, have requested Norwegian prosecutors to investigate the allegations of torture and crimes against humanity.  17 officials have been identified as being involved in the alleged crimes committed in 14 different detention facilities.  (Nov.12, 2019).

Netherlands | Dutch state not obliged to take back Islamic State children

The Hague appeals court ruled that the Dutch state is not obliged to actively help repatriate the young children of women who left the Netherlands and joined Islamic State in Syria.

A lower court earlier this month had said the government must actively help repatriate 56 children living in poor conditions in camps in Syria.  (Nov. 22, 2019).

SOUTH AMERICA

Guatemala | Former Guatemalan army chief accused of crimes against humanity and genocide

Guatemala’s Attorney General’s Office presented its indictments against two of the three senior military officials charged in a new grave crimes case regarding the Maya Ixil genocide, which occurred during the military government of Romeo Lucas García (1978-1982). The indictments of Benedicto Lucas García, the former chief of the General Staff of the Guatemalan Army (and brother of the president), and retired General Manuel Callejas y Callejas, the former chief of military intelligence, occurred as part of a first declaration hearing that had previously been postponed.  (Nov.12, 2019)

Argentina | Complaint filed in Argentina over ethnic cleansing of Rohingya Muslims

Former democracy icon Aung San Suu Kyi is among several top Myanmar officials named on Wednesday (Nov 13) in a case filed in Argentina for crimes against Rohingya Muslims, the first time the Nobel Laureate has been legally targeted over the crisis.  Rohingya and Latin American human rights groups submitted the lawsuit in Argentina under the principle of universal jurisdiction, a legal concept enshrined in many countries' laws.  (Nov.13, 2019).

ASIA

Bangladesh | Crimes Against Humanity: SC upholds Azhar’s death penalty

The Supreme Court of Bangladesh upheld the death sentence of top Jamaat-e-Islami leader ATM Azharul Islam for his involvement in genocide and crimes against humanity during the 1971 Liberation War.  A four-member bench of the SC’s Appellate Division, headed by Chief Justice Syed Mahmud Hossain, delivered the verdict around five years after the International Crimes Tribunal-1 handed down capital punishment to Azhar for the crimes committed in Rangpur.  (Nov. 01, 2019).

NORTH AMERICA

United States | Trump clears three service members in war crimes cases

US President Donald Trump has cleared three service members who were involved in war crimes in Afghanistan and Iraq.  With the presidential executive order, Trump issued pardons for two soldiers, First Lt. Clint Lorance and Army Major Mathew Golsteyn, and reversed disciplinary action against Navy SEAL Edward R. Gallagher.  (Nov.15, 2019).

AFRICA

Democratic Republic of Congo | Congo court sentences warlord to life for crimes against humanity

A military court in the Democratic Republic of Congo (DRC) sentenced Frederic Masudi Alimasi to life in prison on Tuesday after a two-month trial.  Alimasi, also known as Kokodikoko, is head of the Raia Mutomboki, one of the most powerful militia groups operating in the Eastern DRC.  He and four others were arrested in April on multiple charges including murder, rape and enslavement committed against the civilian populations of two villages from February to August 2018.  Two of the other militiamen were sentenced to 15 and 20 years in prison, respectively, and the remaining two were acquitted because none of the victims mentioned them.  (Nov. 21, 2019).

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.

ASP18 Side Event: Launch of the AFLA quarterly: Lessons from Gbagbo & Blé Goudé case and ICC Review

18th Session of the Assembly of States Parties to the Rome Statute

Day 1 (2 December 2019)

Name of the Event: Launch of the AFLA quarterly: Lessons from Gbagbo & Blé Goudé case and ICC Review (Side Event co-hosted by Uganda and Africa Legal Aid)

Overview by: Raghavi Viswanath, Junior Research Associate PILPG-NL

Main Highlights:

The Gbagbo and Blé acquittal calls for a more nuanced review of prosecutorial strategies and the sentencing practices of the Court. Importantly, the Court should steer clear of the risk of politicization. Instead, the Court should focus on the need to preserve the right to family life of the accused, encourage positive complementarity through domestic prosecutions and incentivize States to accept released/acquitted defendants.

Summary of the Event:

Ambassador Blaak-Sow (Ambassador of Uganda to the Benelux and European Union) and Ambassador van den Ijsel (Netherlands Ambassador to the ICC and OPCW) welcomed all participants to the launch of the AFLA quarterly, and spoke about how the 18th session of the Assembly of States Parties was expected to serve as a crucial signpost for the review of the Court’s performance. The first panelist was Dr. Namira Negm (Legal Counsel of the African Union). Dr. Negm first commented on the timeliness of the AFLA quarterly which exposes the Court’s prioritization of the situations in the African continent. In her view, Gbagbo was a tipping point in this trend. Notably, she discussed how Gbagbo prompted many allies of the Court to call for reforms in prosecutorial strategies. The case also warns of the damage that unsubstantiated indictments cause both to the reputation and the resources of the Court.

This was followed by a short presentation by Evelyn Ankumah (Executive Director, Africa Legal Aid). She emphasized on the need for nuance in criticism. The ‘beyond reasonable doubt’ and ‘presumption of innocence’ standards are not new to criminal trials. However, the application of these standards in Gbagbo was unique – because of the heinousness and scale of the crimes, the interests of the victims, and the interests of States that often wish to see particular persons prosecuted. Therefore, the key question should be how to minimize the risk of politicization – both on the OTP and the judges. The political background of the case should not be the basis for reduced evidentiary standards. To this end, she warned against measuring the success of the Court by the number of convictions. In the long run, the Court will only have legitimacy if it gives due regard to the interests of fairness. 

Chief Taku (Immediate Past President, ICC Bar Association; Defence Counsel before the ICTR, SCSL and the ICC) and Mariana Pena (Senior Legal Officer, Open Society Justice Initiative) then called for a reconsideration of the arrest and detention policies of the Court. Gbagbo’s continued detention even after the acquittal would inevitably lead to double victimization. In her presentation, Mariana Pena highlighted how the calls for a review of the ICC were not triggered merely by the recent string of acquittals. These calls are grounded in broader systemic failures of the Court’s detention policies, its limited understanding of the limitations on the ground, and the strained relationship between the Court and the States Parties. These problems are further compounded by the uncertainty in the standards applicable to ‘no case to answer’ motions. In particular, she discussed the implications of the draft resolution of the creation of an expert panel to review the Court’s performance. In her view, it was important that the panel be encouraged to direct recommendations both at States Parties and the Court. In order to ensure independence and credibility, the review process must engage with the civil society.

Melinda Taylor (Defence Counsel at the ICC) then made a short presentation on the due process lessons learned in the wake of the Gbagbo and Ble acquittal. Significantly, the practice of acquittals is not unique to the ICC. Both the ICTY and the ICTR have famously acquitted many senior leaders involved in the Yugoslav conflict. Therefore, it would not be incorrect to infer that the heightened criticism directed at the ICC is in fact linked to the defendants being African nationals. She then spoke of how States could assist in undoing the trust deficit. In her view, releasing defendants should be considered as important as arresting and detaining them. However, releasing defendants/acquitting defendants does not serve the rehabilitative ends of justice if the defendant is already made to serve de facto punishment and denied the right to family life. Notably, Gbagbo was one of many cases where the accused was acquitted after having served nearly eight years in detention.  Therefore, more States should be encouraged to host the defendants released or acquitted by the Court. As of today, only two states have signed agreements with the Court to evince their interest in accepting released prisoners. In conclusion, she spoke of how the permanence of the Court should be used to its advantage. The Court, unlike its predecessors, had the opportunity to learn from the practices of the ad hoc tribunals and revise its working policies to keep up with the constantly evolving interests of justice.

The panelist presentations were followed by a brief floor discussion. Dr. Negm, in particular, was asked about the pushback from the African Union, and the futility of reform if African States choose to withdraw from the Statute. Dr. Negm acknowledged that withdrawal may be an extreme measure. However, reforms in the prosecutorial strategies could contain/undo this trend. The root of the problem was the target-based approach of the OTP – which has repeatedly failed, as seen in the Kenyatta and Ruto cases. Instead, the Court should draw on the success of the ad hoc tribunals and encourage domestic prosecutions at first instance. In so doing, the Court could also avoid creating unrealistic expectations for the victims and local communities. The event ended with comments from the counsel in the Gbagbo case, who discussed how the case prompted constructive exchanges between the Defence and the OTP, and internal policy reviews across all divisions. She voiced the agreement of the room that there was an urgent need to raise, and not lower, the bar for prosecutions.

Humanitarian Reality in Colombia: Saving Lives and Safeguarding the Future of Peace

By: Francisca De Castro, Junior Research Associate, PILPG-NL

Since the 1960s, Colombia has been faced with a situation of armed violence that has plunged the country in insecurity and crisis. Groups of farmers had created self-defense militias, which later turned into guerrilla groups, over agrarian disputes with the government. The violence turned into a conflict between state forces, paramilitary groups, and guerrilla groups such as the Revolutionary Armed Forces (FARC), amongst others. In 2016, the Colombian government and the FARC signed a peace agreement which put an end to more than 60 years of civil war. However, three years later, the humanitarian reality in Colombia is still far from resolved. The International Committee of the Red Cross (ICRC) reported that the humanitarian situation in Colombia had in fact decayed in 2018. According to the ICRC, this was a consequence of the five remaining armed conflicts with other groups that were running in parallel, and the ineffective state response to these conflicts in certain rural communities, such asthe Catatumbo and the Cauca regions.

The Colombian state’s inaction prompted social leaders, a term generally adopted in Colombian government and civil society to refer to people who are advocating for their communities social/civil rights, to proactively voice the concerns of minorities.  However, as a result, these leaders have become targets of aggression from unknown actors.  Reports suggest that these aggressions went from 82 recorded aggressions in 2008 to 174 in 2009, and have increased since then.  According to the NGO Somos Defensores, in 2018 alone, over 155 social leaders were assassinated.  However, the government has not been passive during this situation. It has established protection measures for social leaders which include private security officers as well as protected vehicles. 

The “Humanitarian Reality in Colombia” conference organized by Citizen Diplomacy (a group of Colombians living in the Netherlands and working towards bringing attention to the situation of social leaders in Colombia), provided a platform for social leaders visiting Europe to have an opportunity to share their stories. 

The first speaker was Nubia Russi, a leader from Tolima who has benefited from the security measures provided by the government.  Although grateful for the initiative, she pointed out several flaws in the system. Amongst those are the inequality of access to protective measures, as well as obstacles brought on by these measures, such as the difficulty of finding employment while being accompanied by officers.  She elaborated on how the budget of these measures could be better utilized to facilitate educational training for the beneficiaries. 

The second leader was Carlos Paez of the Tierra y Paz Organization.  Originally displaced from his land in Urabá in the 1990s, he has been fighting to regain access for over a decade.  This is a fight that has been affected by several laws, passed in 2007, 2009, and 2011, which claimed that any person forcibly displaced from their lands due to paramilitary activity had the right to regain access.  Yet Carlos is one of the few, as less than 10% of the regions’ displaced families have been able to return to their lands. 

Lastly, two leaders from the organization Movimientos Rios Vivos, Genaro Graciano and Milena Florez, explained what their lives have looked like since the 2018 Hidroituango catastrophe in which a poorly constructed dam suffered structural defects which resulted in the flooding of several communities in the area, resulting in over 120 people severely affected.  They seek reparations for the harm suffered by the communities inhabiting the affected areas, and call for independent investigations to assess liability for these harms. 

Citizen Diplomacy has put forward a four-pronged proposal to protect and enhance the lives of these social leaders.  It calls for decompression, empowerment, safe return, and creating safe spaces. 

The decompression component addresses how social leaders live under constant pressure and fear for their lives.  It aims to transport social leaders from high pressure to low pressure environments (often international destinations) for a short amount of time. This would, hopefully, be complemented with familial company and emotional support. 

The empowerment component stems from the social leaders’ motivation to defend human rights.  It seeks to provide training to improve the resistance capacities of social leaders, and organize conferences to raise awareness of the current situation of each defender. 

This ties into the organization’s  efforts to ensure safe return of those displaced.  As the threat persists upon return to Colombia, the role of organizations that provide international accompaniment is extremely important.  Many organizations across Europe work towards similar goals.

The last element is the promotion of safe spaces.  The international accompaniment is also extremely useful upon return to Colombia, as it can assist the social leaders’ efforts to create safe spaces for victims, and ultimately develop a self-protection strategy in consultation with the community.

Each Colombian social leader’s story is different.  Leaders represent different minorities with distinct grievances. In the recent past,  there has been an increase in the visibility of their fight compared to the situation during the FARC conflict. However, this fight will only achieve its full potential if it is accompanied by efforts to study and fix the issues hindering peace building in the state.

Creating a Virtual Human Rights Lawyer Week: Addressing Challenges

By Gabriella Gricius, Jasmijn de Zeeuw, and Bethany Houghton - PILPG-NL Senior Research Associates

Over the past six months, PILPG’s Netherlands Office has been working with Vrije Universiteit Amsterdam, the Knowledge Management Fund, InterCidadania Institute, the Legal Assistance Centre in Namibia and the VU Vereniging on the Virtual Human Rights Lawyer (VHRL) Chatbot. One of the main reflections from this project as well as the takeaways from our expert input sessions was how many challenges we first faced and later have overcome. 

At the beginning of this process, our team put together a list of some of the challenges that building the VHRL chatbot presented. For some of these challenges, we devised ways of meeting them, while for others we have adapted our approach to better take these factors into account. After much reflection at the end of the project period, we have determined some ways of adapting and meeting the most critical of these challenges. 

Challenge 1, 5 & 6: Internet, Adaptation to Local Customs, and Interacting with Victims

The first and most obvious challenge of the VHRL chatbot was that it relies on internet access. Victims of human rights violations often do not have internet access and therefore, a lack of internet access was a severe limitation of the chatbot’s usefulness. Furthermore, adapting the chatbot to local language presented another issue as many different cultures talk about certain issues such as rape in a roundabout way. Lastly, the challenge of how to interact with victims was one that we spoke to numerous experts about. 

To solve these three issues simultaneously, our team decided that to refine the focus on creating a tool for legally-minded civil society organizations (CSOs) rather than focusing on directly creating a tool for victims. Not only does working with legally-minded CSOs partially solve the challenge of creating a chatbot with understandable but legally accurate language, it also means that it is more likely that our target audience would have internet access. This ensures enhanced accessibility of our tool. 

Challenge 2 & 7: Building the Chatbot and Data Protection

Two separate but interrelated challenges are the actual construction of the chatbot as well as the question of data protection. Constructing the chatbot was a challenge that our team dealt with by working with InterCidadania Institute to create a first prototype. This version of the chatbot brought many further challenges to the forefront such as reflecting on whether we should be working with ontological or decision tree designs and how to create a sustainable backend that could be modified to use natural language processing once this technology is ready. 

The second challenge for our team was data protection. How would we make sure any data was securely stored? Did we want to collect data at all? Would the data that ran through Telegram as a third party be safe? Victims of human rights violations are particularly vulnerable and their data highly sensitive. Protecting this data is central to the development of the chatbot. To approach this challenge, we looked closely at data protection regulations throughout Europe and varying ways we could ensure that data would remain safe. We also examined at the possibility of not collecting data at all. Looking forward, we remain committed to making data protection and cyber security the most important aspect of the development of the VHRL chatbot.

Challenge 4: Domestic Remedies

The VHRL chatbot focuses on international and regional human rights mechanisms. These mechanisms in manyl cases ask applicants to first use all judicial proceedings available under domestic law before bringing a case or complaint before them. This poses a challenge for our chatbot - how can we ask users if they have exhausted domestic remedies? Which questions can help determine whether this is the case when domestic systems vary? And how to incorporate the exceptions to this requirement? 

Our choice for legally-minded CSOs addresses this challenge. The VHRL can assist those CSOs that work with clients who have already exhausted domestic remedies and are looking for another way to help them with their case. The chatbot aims to make information about mechanisms at the international level - information that is currently dispersed and often difficult to access - more accessible for these (local) organizations.