ASP18 Side Event: The Politics of Peace: How ICC Intervention Impacts Accountability in Countries that Fail to Provide Justice to Victims

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

Day  3 (4 December 2019)

Name of the Event: The Politics of Peace: How ICC Intervention Impacts Accountability in Countries that Fail to Provide Justice to Victims (Side Event co-hosted by Norway, Justice International, and the Transitional Justice Coordination Group (TJCG)) 

Overview by: Keri van Douwen, Junior Research Associate PILPG-NL  

Main Highlights:

• ICC denial to open investigation into Afghanistan leaves victims feeling betrayed by an institution that is mandated to deliver justice to the international community, of which Afghans are very much a part. 

• There is no reason to be cautious about the timing of seeking justice as the very little development happening at high political levels does not translate to the reality on the ground: for the people of Afghanistan, the war is only getting more brutal. 

• There will be no peace without justice and accountability: Afghanis have seen many peace negotiations, amnesty bills and peace deals while nothing has led to actual peace.  One cannot use the same failed formula over and over again and expect a different result. 

• Justice is at the core of Afghan culture and tradition.  Forgiveness as well. But so is revenge. 

Summary of the Event:

“If you are going to have a cup of tea with warlords, have a cup of tea with civil society as well.” (Janet Anderson) 

On the third day of the 18th session of the ASP a side event entitled “Politics of Peace” was (co-)hosted by Justice International and the Transitional Justice Coordination Group with support from Norway. Moderated by Janet Anderson (project manager at Justice Hub, international justice observer and host of podcast called ‘Asymmetrical Haircuts’), a panel including victims of the Afghan war, or human rights defenders, as well as experts on human rights and transitional justice, discussed the refusal of the ICC to open an investigation into the situation of Afghanistan, especially in relation to the desires of victims on the ground. The timeliness of the event was stark, given the ICC’s Appeals Chamber started hearing oral arguments on the same morning.

Amal Nassar, a jurist working for the International Federation for Human Rights (FIDH) as Representative to the ICC, emphasized the role that the denial to open this investigation has played in giving rise to discussions on reviewing the performance of the Court, a topic highlighted often during this year’s ASP. In several ways, the decision has shown light on the ICC’s many shortcomings. While the denial has been justified by the investigation not being ‘in the interest of justice’, Nasrina Bargzie, an Afghan-American attorney who represents seventeen different Afghan human rights organizations, argued that the Rome Statute should be closely studied to better understand with whom the authority to conduct an assessment of what is in the interest of justice lies. Horia Mosadiq, Afghan human rights defender and journalist who spoke passionately about her experience as a victim of war at the fourth plenary meeting earlier this week, explaining that she felt a sense of betrayal towards the ICC in deciding against investigating widespread atrocities committed in Afghanistan.  Her feelings of betrayal stem from the ICC’s denial to fulfill what she considers it is mandated to do, namely to deliver justice. She also feels betrayed by the fact that the United States has been able to bring a Court, supported by 123 Member States, “to its knees”. 

The panelists stressed that the ICC is part of a framework that Afghanistan has helped create (Afghanistan ratified the Rome Statute in February 2003) and that this is not a situation considered to be a foreign (western) interference. They noted that Afghan victims are asking for an impartial trial, as they realize that the discussion of whether or not peace should be sacrificed for justice is both irrelevant and mistaken. In the words of the late Kofi Annan, spoken by Amal Nassar, “justice and peace are not contradictory forces. Rather, properly pursued, they promote and sustain one another. The question, then, can never be whether to pursue justice and accountability, but rather when and how.” In the Afghan setting, where justice and peace have long been considered contradictory forces, it has meant that perpetrators turned high government officials or peace negotiators and that amnesty has been granted. For the panelists, this has put lasting peace far out of reach. The international community should learn from applying the same failed formula over and over and understand that a peace that is not inclusive, that is not addressing pain and grievances that Afghans have gone through, is not peace, but much more like a ceasefire. Amal Nassar, Nasrina Bargzie, and Horia Mosadiq stressed over and over again that victims do not have high expectations of the Court. On the contrary, they are very much aware that an investigation might not lead to arrests or prosecution. Rather, they seek to be heard, to make sure that diplomats understand that they should not only meet with warlords, but also with civil society.  They want the world to recognize their experiences and they want to know what happened to their fathers, mothers, brothers, uncles, neighbours and whoever disappeared before their own eyes. Are they alive? Are they still being tortured? Where are their bodies? Nasrina Bargzie, in speaking of meeting ambassadors in Kabul, recollected that the only thing on their minds is the United States and what they might do, without any consideration of justice or accountability for the Afghan people. That is the politics of peace and quoting Richard Bennett “the politics of peace is as dirty as any other politics.” 

Having listened to the other panelists, Sari Kouvo (co-founder and co-director of the Afghanistan Analysts Network) argued that what is needed is for the ICC and other institutions to adopt (some of) the stubbornness that is widely and continuously demonstrated by (Afghan) human rights defenders. Even if the ICC does not open an investigation, as Nasrina Bargzie tells us, Afghan people are resilient and willing to do the work to build up their country, every single day.  Nevertheless, for her, denying the investigation into Afghanistan sends the message to the world that the ICC is in business for the easy cases only, while leaving the tough investigations unaddressed. The ICC should be an inspiring court, Amal Nasser argues “it could function as a catalyst for other cases to be opened on a domestic level”. The intention with which the Rome Statute was brought into force, bringing an end to impunity, is, in itself, not easy nor ever meant to be easy. That being said, Afghanistan has been ruled by a culture of impunity.  

While initiatives towards transitional justice have waxed and waned since 2001, the panel shared an agreement that very little has been done by the international community to establish some level of accountability. Failing to do so has left Afghans no other choice than knocking on the door of the international community’s ‘last resort’ for justice. The panel was clear on the challenge that the International Criminal Court is facing, but also clear that it should face it head on. While the Afghan war remains far from over, Horia Mosadiq stresses that forgiveness is a value at the core of Afghan culture, tradition and religion. However, if justice is not delivered, it will be impossible to forgive - and revenge is, also, very much a part of Afghan culture. 

ASP18 Side Event: Impunity and historical debts on access to justice for women and LGBT victims of sexual violence and persecution in Colombia and Mali

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

Day 4 (5 December 2019)

Name of the Event: Impunity and historical debts on access to justice for women and LGBT victims of sexual violence and persecution in Colombia and Mali (Side Event co-hosted by Corporacion Humanas (Colombia), Sisma Mujer (Colombia), Colombia Diversa (Colombia), and MUSONET (Mali))

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

Main Highlights:

• Women have been targeted in conflicts notably in Mali and Colombia.  Their access to courts and justice has often been denied in these countries.  

• The situation is hopefully going to change with the peace process in Mali, and it is currently changing in Colombia although there is still a long road ahead. 

Summary of the Event:

The panelists for side event on access to justice for women and LGBT victims included members from MUSONET from Mali, and the 5 Claves from Colombia, a group comprised of 5 different organizations working on women’s rights in Colombia. 

Musonet’s representatives started by describing the current situation in Mali. They mentioned that women in Mali remain marginalized. Since 1992 there have been initiatives to reinforce women’s participation in society, but they remain victims of human rights violations. Munoset gave an overview of the current situation and some statistics, including that since 2013, there have been 2783 cases of gender based violence, which have been directed in 93% against women and girls. However, the representatives of Munoset stated that there has been an increase in the awareness on the need of making women’s rights a priority.

With regards to the situation in Colombia, the first panelist was Luz Piedad Caicedo from the NGO Humanas, who spoke on the work of 5 Claves as an NGO comprising other groups that work with women and LGBT rights in Colombia. She talked about the history of the conflict in Colombia, which essentially started by a conflict of uneven distribution of the lands, and the little possibility for farmers to have access to the lands. The original actors of the conflict were groups with Marxists ideologies, but in the 1990s the situation changed and the country witnessed the emergence of extreme right-wing groups such as the paramilitaries. In the 2000s, a first peace agreement was signed with the paramilitaries which included a law “Justicia y Paz” which served as the basis to understand sexual violence in the framework of the conflict. Furthermore, since the peace agreements with the FARC in 2016, Ms. Caicedo continued to explain, the National Prosecutor’s Office had been more open to prosecuting sexual violence, and the Constitutional Court had rendered a sentence which recognized that sexual violence had been committed in mass, and categorized 9 types of sexual violence that had been committed. She emphasized that it was in this framework that the Special Jurisdiction for Peace (JEP) was instated. 

The second panelist from Colombia was a representative from Sisma Mujer. She said that impunity is latent and that the invisibility of these types of crimes might be the reason. She talked about the JEP’s role in stereotyping sexual violence and the presumption of the causal link between the conflict and the sexual violence. She also touched upon the differential treatment of the victims, as there has been a reluctance by part of state institutions to recognize that members of the armed forces also committed sexual violence, and that victims of sexual violence by legal groups are not treated the same as victims of sexual violence by illegal groups. 

The third panelist to speak on Colombia’s situation were Daniela Diaz and Lucia Bacca from Colombia Diversa, who touched upon the situation of the LGBT community during the conflict, and particularly relating to gender based violence. They mentioned two reports which focus on how there have been at least 4 victims from the LGBT community and that many victims remained silenced because of the biases that exist. Furthermore, they talked about how, as an organization, Colombia Diversa has faced backlash by hearing that international justice is not the right mechanism to get justice for the crimes committed against the LGBT community because there is no proof that these crimes are systemic and that it has not crossed the threshold to consider them international crimes. 

Finally, Mama Koité Doumbia from the Trust Fund for Victims closed the panel. She talked about the violence committed against women in Mali by giving some examples of the violence that women have suffered, as well was how these victims can be repaired.

ASP18 Side Event: Ethics and Good Practices in the Investigation of Crimes under ICC Jurisdiction

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

Day 4 (5 December 2019)

Name of the Event: Ethics and Good Practices in the Investigation of Crimes under ICC Jurisdiction (Side Event co-hosted by the Netherlands and the National Commission for Human Rights of the Democratic Republic of Congo)

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

Main Highlights:

• The Commission Nationale de Defense des Droits de l’Homme (CNDH) in the Democratic Republic of Congo (DRC) presented their code on ethics and good practices in the investigation of crimes that fall under the jurisdiction of the ICC.

• The CNDH is an organization created to promote ethics in investigations of international crimes in the DRC. They were supported by the ICC and the Embassy of France in the DRC.

Summary of the Event:

“C is for Confidentiality, N for Neutrality, D for Dedication and H for Honorability, those are the values that CNDH stands for”, the President of the CNDH, Mr. Mwamba Mushikonke Mwamus said. This institution was created with the objective of promoting and protecting human rights. The president of the CNDH opened the panel by discussing the creation of the CNDH and their ties with the ICC. He said that since 2017, the ICC has supported the CNDH through technical support by providing help in training the investigators according to international law standards. The result of this training was a code of ethics in the investigation of international crimes, which is now the guiding code for any member participating in the CNDH. Furthermore, the president thanked the Embassy of France in the DRC for their financial support in creating this project. Now, after having created the code, the president of the CNDH noted that the next step is the appropriation of the code. This has been done through workshops aimed at professionals working in the field of justice, as well as authorities such as the deputy prime minister for security. Mr. Mushikonke further elaborates on these achievements by saying that the CNDH’s efforts have been recognized as they were asked to do these workshops in other countries in Africa. 

Mr. James Stewart, deputy prosecutor of the ICC was the next panelist to intervene, and he emphasized the importance of drafting a text on the ethics in investigation, and that the Office of the Prosecutor (OTP) was aware of the lack of consensus, which is why they started their support, and continued to support this initiative. He highlighted that this code represented a tool of maximum importance in the protection of human rights, and that it was unlike any other document created. He equally shared Mr. Mushikonke’s views that this was the continuation of the efforts by the OTP to participate in the reinforcement of the capacities of the investigators. These efforts were oriented to training the investigators so that their work would meet the international community’s standards in matters of investigation. 

Finally, Mr. André-Marie Kito Masimango, the national coordinator for the CICC in the DRC, discussed the situation in the DRC. Since the DRC is a situation state, the ICC has been present in the field since 2004. He emphasized that the exchanges between the DRC and the ICC, particularly relating to cooperation, as well as information and knowledge exchange are very rich, especially since most of the ICC’s jurisprudence is based on cases from the DRC. He equally highlighted that this code was of maximum importance considering that ethics was not just a matter of the investigative team, but for all of the legal professions. He was adamant about the fact that the prosecution and defense teams need to convince the judges, and to do so, the evidence needs to be of the highest quality, which is the importance of this code. 

Before closing the event, the panel received some questions regarding the applicability of this code on a national level. The president of the CNDH highlighted that although it is only the investigative team from the CNDH that is obliged to abide by the rules set forward in the book, there is not yet a national consensus on the adherence to these rules. However, he said that victims could reach out to the CNDH with their situation, and thus assuring that their case will be handled in accordance to these rules. Their hope is to expand the outreach of these rules on a national and regional level, which is the future of this project. 

ASP18 Side Event: What are the Prospects of Bringing Omar Bashir to Justice

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

Day 4 (5 December 2019)

Name of the Event: What are the Prospects of Bringing Omar Bashir to Justice (Side Event co-hosted by Human Rights Watch, Journalists for Justice, Kenya Human Rights Commission and the Kenyan Section of the International Commission of Jurists (ICJ Kenya))

Overview by: Sindija Beta, Junior Research Associate PILPG-NL

Main Highlights: 

• Sudanese people want Omar Bashir to be handed over to the ICC for prosecution.

• The international community must pressure the current Sudanese transitional government to hand over Mr. Bashir to the ICC. 

Summary of the Event:

This side event on the prospects of bringing Omar Bashir to justice was opened by the moderator George Kegoro. He outlined the importance of having the discussion about brining Omar Bashir to justice now, because he is no longer the president of Sudan, there is a new political authority in Sudan, and Mr. Bashir himself is still in Sudan. 

The first speaker from the panel was the President of End Impunity Organization – Barcai Abdel-Karim who talked about the political environment in Sudan. He outlined that even after the new transitional government was put in place, the political situation is fragile. There is still continuous violence present in Sudan and the government does not show signs of moving in a democratic direction. Mr. Barcai Abdel-Karim expressed his concerns about the unwillingness of the government to hand over Omar Bashir even though there is no prospect of successfully prosecuting him in Sudan. He also pointed out some of the arguments that are being spread in Sudan as to why Bashir should not be handed over to ICC. He ended his speech noting that Sudan is moving towards a worrying future – with a collapsing economy and two separate armed forces being present in the state. 

The Executive Director of African Centre For Justice and Peace Studies, Osman Ali Jami, introduced his work of visiting refugees and internally displaced people (IDP) camps of Sudanese people. His pointed out that when the refugees are asked what they need the most, their answer is not basic survival supplies, but rather justice. Mr. Jami noted that Sudan is unable to prosecute Bashir nationally, therefore they need the help of the international community and the Sudanese people are willing to hand over Omar Bashir to the ICC. 

Amir Suleman, Legal Program Director of African Centre For Justice and Peace Studies, focused his presentation on sexual violence committed against women and the traumatization people have experience since 2003. He gave an insights in what happened during the genocide in Darfur and what the people had to go through to escape the atrocities of Bashir’s government. Mr. Suleman also outlined the struggles the refugees are still experiencing – lack of water, access to education or any services. Despite these struggles and failed attempts of returning to Sudan, Mr. Suleman reiterated that the people’s only wish is that Bashir and his accomplices are tried before the ICC. 

Niemat Ahmadi, President of Darfur Women Action Group, also flagged the difficulties women from Darfur are forced to go through. She pointed out that 80 to 85 percent of refugees from Sudan are women and children and that even now they constantly face sexual abuse. Ms. Ahmadi noted that despite being ill and heavily traumatized the women of Darfur continue to do all they can to take care of their children and keep their families together. Nevertheless, she said that there is hope for people in Sudan and that people want the ICC to prosecute Mr. Bashir. Niemat Ahmadi flagged the reasons for why Bashir should not be tried in Sudan, namely, that there is no judicial impartiality in Sudan and no willingness on behalf of the transitional government to actually prosecute Omar Bashir. She also proposed that once Bashir is prosecuted the proceedings might be continued in Sudan with the help of the ICC. 

Andrew Songa, delegate to the African Union, International Federation for Human Rights, presented his suggestion for how the African Union might assist Sudan in the prosecution of Omar Bashir and others responsible for crimes committed in Sudan. He noted that the African Union has introduced a new transitional justice policy, which offers three steps which might be taken in situations such as in Sudan. Firstly, that national institution should try to carry out criminal accountability. If that is not possible, then, secondly, regional hybrid mechanisms can be employed. And only thirdly can other regional or international mechanisms, such as the ICC, be approached for prosecution of international crimes. He nonetheless flagged some of the issues which might arise upon each step. Mr. Songa concluded by saying that the best option for Sudanese case would be to seek the help of the ICC. 

Lastly, the moderator gave the opportunity to express their opinions and experiences to the audience. There was a wide eagerness from genocide survivors present at the session to share their experience and once more flag the importance of the ICC for the prosecution of Omar Bashir. The speakers as well as the public agreed that there is a need from the international community to pressure the current Sudanese transitional government to extradite Omar Bashir to the ICC in order to finally bring justice to all the people who have suffered during the presidency of Mr. Bashir. 

ASP18 Side Event: Seizing Illicit Assets for Reparations: Challenges and Opportunities

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

Day 4 (5 December 2019)

Name of the Event: Seizing Illicit Assets for Reparations: Challenges and Opportunities (Side Event co-hosted by France, Uruguay, and REDRESS)

Overview by: Erez Roman, Junior Research Associate PILPG-NL

Main Highlights:

• All Panelists underlined the importance of cooperation between the States Parties in regard to seizing assets for reparations.

• New instruments and techniques are being brought forward by states to improve the manner and ways in which reparations are done.

Summary of the Event:

Moderator Rupert Skilbeck, director of REDRESS, started this event on seizing illicit assets for reparations by introducing the panelists briefly and then giving them the floor to speak. 

The first to speak was H.E. María Teresa Infante Caffi, the Chilean Ambassador to the Netherlands. H.E. reiterated the importance of the topic and shared a few words about the situation in Chile. Furthermore, she urged the participants to remain active in the mission at hand. The second speaker was the legal advisor of the French Mission to the Netherlands. Similarly to the Chilean Ambassador, she emphasized the importance of the topic at hand. She also mentioned that some investigations relating to seizure of assets for reparation have been successful although difficulties remain. 

The third panelist, Cristina Ribeiro, Investigations Coordinator, ICC OTP, was asked by the moderator to briefly explain the process of seizing assets for reparations. She talked about the difference between this task on the national and international level and emphasized that it is very important to be able to link a certain asset to a certain suspect. She added that that’s where the States Parties come into play since the ICC cannot act in their jurisdiction and requires their assistance. She continued by suggesting that seized assets are important and fill a range of objectives. First of all, as reparations, second, as a form of penalty, and third, using the assets to fund the Court’s activity. 

Following this, Anna-Aurore Bertrand, the External Relations and Cooperation Advisor, ICC Registry, took the floor to speak about some practical issues. She spoke about the Registry’s role in the process of seizing assets and said a few words on what it is like to act within a certain member state. She reiterated the fact that the legal systems of the ICC and the States Parties are different. She also noted that the Registry works on educating domestic prosecutors since it is not all about sending the request to seize someone’s assets, a prosecutor also needs to know how to do it. 

The Fifth Speaker was Luke Moffett, Senior Lecturer at Queen’s University Belfast. He provided an academic perspective on the issue and shared some information from a recent report he published. He aimed to answer why seizing assets is important for reparation and mentioned similarly to Ms. Bertrand that it is important for the financing of the legal procedures at the ICC.  Furthermore, seizing someone’s assets is symbolic as it sends a message to the victims that it is possible to get certain reparation for wrongdoing experienced. However, Dr. Moffett also emphasized that seizing assets has a problematic side to it as it can hurt the integration process of those already convicted and served time for society. In addition, it is harder to seize assets as a response to some crimes than others. 

The sixth person, Haylea Campbell, Pro Bono Team Member, Hogan Lovells UK explained how the firm she works for deals with seizing assets for reparations. She mentioned an Australian case that, according to her, led to a better understanding that there is great discrepancy between application of measures to seize assets on the national and international levels. She surfaced another issue relating to whether an asset that has been seized actually makes its way to the hands of the victim or elsewhere, for example to the hands of the state. 

The last panelist to speak was Fransico Jimenez Villarejo, National Member for Spain at Eurojust. Mr. Jimenez Villarejo spoke about Eurojust and the European mechanisms for reparation. He mentioned how Eurojust supports cooperation between the EU member states, particularly in areas such as arrest and surrender of fugitives but also in the area of asset recovery in which, he reiterated the importance of cooperation due to differences in the legal systems. 

Following the presentations by the panelists the moderator gave time for questions from the audience. One of them related to the cooperation between the ICC and civil societies in relation to the topic at hand. The panelists answered that there is indeed a certain lack of cooperation but that this has practical reasons such as confidentiality of on-going investigations and other processes.