ASP18 Side Event: Establishing Reparative Justice for Victims of International Crimes in Africa

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

Day 5 (6 December 2019)

Name of the Event: Establishing Reparative Justice for Victims of International Crimes in Africa (Side Event co-hosted by Ireland and the Institute for Security Studies)

Overview by: Andreina De Leo, Junior Research Associate PILPG-NL

Main Highlights:

Summary of the Event:

The side event began with an opening remark by the Ambassador of Ireland to The Netherlands, Kevin Kelly. He emphasized that the topic of the event is of vital importance for Ireland. Indeed, he mentioned that the Irish government contributes to the Trust Fund for Victims (TFV) as it believes in the necessity of supporting victims in their quest for justice and the need of states to take their responsibilities seriously in this regard.

The chair of the event, Allan Ngari, Senior Researcher at the Institute for Security Studies (ISS), opened the discussion. He first presented the report he co-authored on the topic, titled Reparative justice: an afterthought in accountability for international crime, which analyses different methods for redressing victims of international crime. He stressed that an underlying problem of reparative justice is that states often do not consider reparation as part of accountability, but rather focus solely on prosecution, which may be problematic in terms of victims’ rights and their participation in the proceedings. He then introduced the panelists.

The first speaker, Judge Marc Perrin de Brichambaut, Second Vice-President of the International Criminal Court, reflected on the ICC’s approaches to reparative justice, in light of three cases: Katanga, Lubanga and al-Mahdi. In this regard, he recalled that the burden of reparation lies with the convicted person, that the identification of the victim and the determination of the harm is a judicial consideration and that victims have the right to participate in the proceedings. He also stressed that the legal role of the TFV is now clear: framing a Draft Implementation Plan for the approval of the Trial Chamber. However, implementation may lead to difficulties in certain situations, in particular in active or recurring conflict areas. Indeed, he emphasized that, even though a machinery for reparations has been put together, it is not entirely set up and there is still a long way to go to effectively deliver reparative justice to victims of international crimes. In this regard, challenges include the difficulties of the process of identification, as well as protection of vulnerable victims and the relationship between collective reparation and individual rights. In this context, it is particularly important to take the time to listen to the victims’ preferences concerning their expected form of reparation, which is usually monetary compensation, but at the same time managing expectations and convey the message that in certain situations it is just not feasible. He concluded his intervention by stressing that the biggest limit to the delivery of effective reparative justice lies in the fact that reparation is only considered after a conviction. He finally suggested that a fertile ground for solving shortcomings could be exploring the relationship between the reparations and the assistance programs of the TFV, with the idea of starting to prepare reparations on the ground from the very beginning of the procedure. 

The second speaker, Dr. Steven Kayuni, Advocate of the High Court of Malawi and ISS Consultant, also focused on the shortcomings of the reparation frameworks for international crimes and on the necessity to have an honest discussion about what is effective and what is adequate not to fail the expectations of the victims. He underlined that states have the main responsibility when it comes to deliver justice for victims and that the responsibility to repair should be conceived as a corollary of the principle of responsibility to protect. He also agreed with Judge Marc Perrin de Brichambaut in prospecting a change in thinking on the structure of the process of reparative justice, whereby reparations should be assessed at the beginning of the case, and not only after a conviction. Indeed, he stressed that acknowledging that people have suffered should be separated from convicting perpetrators. He suggested to introduce the idea of complementary reparations based on working with national institutions to provide redress for victims.

These two interventions were followed by a discussion. Pieter de Baan, Executive Director of TFV, underlined the challenges posed by the fact that victim participation is usually taken on by the heads of households, rather than by all members of the family, which excludes women from participation and Dr. Julie Fraser, Assistant Professor at Utrecht University and affiliated expert with PILPG, reflected on the adequacy of putting too much emphasis on ICC’s reparations. She questioned whether it may not be more appropriate to focus on a state’s human rights obligation, rather than individual criminal liability with regard to reparations. Furthermore, it was also noticed that reparation programs should be accompanied by the enhancement of governmental actions to ensure that victims receive appropriate redress. For example, the ministries of health could be supported in setting up clinics capable of delivering long-term support to traumatized victims.

Finally, Philipp Ambach, Head of Victims Participation and Reparations of the ICC, reflected once again on the importance of managing expectations. Alongside some of the shortcomings discussed, he mentioned that the lack of a direct liaison between the Registry and the victims’ community, as well as the limited information regarding the functioning of the Court, may lead to disappointments and misunderstandings concerning reparations, which needs to be taken into account and reflected upon.  

ASP18 Side Event: Paths to Justice and Accountability for Venezuela: Ongoing Initiatives by the International Community

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

Day 5 (6 December 2019)

Name of the Event: Paths to Justice and Accountability for Venezuela: Ongoing Initiatives by the International Community (Side Event co-hosted by the Global Centre for the Responsibility to Protect, Defiende Venezuela and Sin Mordaza).

Overview by: Kelly van Eeten, Junior Research Associate PILPG-NL

Main Highlights:

  • Rodrigo Diamanti, President of Un Mundo Sin Mordaza, noted that Venezuela has the second-largest migration crisis in the world and the situation gets worse every day.

  • The office of the Prosecutor at the ICC proactively seeks information from various UN bodies and mechanisms, including the recently established Fact-Finding Mission.

Summary of the Event:

Simon Adams, Executive Director of Global Centre for the Responsibility to Protect, opened the panel discussion by explaining the context of the crisis in Venezuela. Génesis Dávila, founder and president of Defiende Venezuela, followed him and explained six different cases Defiende Venezuele worked on involving torture of the civilian population. She explained that in all cases, civilians were detained without an arrest warrant and were tortured during the period they were detained. 

Monika Le Roy, Advisor to the Secretary General of the Organization of American States, took over from her and explained that the situation in Venezuela did not occur overnight and was a slow process in open sight. She referred to several rapports on the situation in Venezuela. Jared Genser, Adjunct Professor of Law from Georgetown University Law Centre, continued by stating that the crisis is impacting almost the entire population of Venezuela. He noted that millions of Venezuelans are suffering from the lack of food and medicine. 

Génesis Dávila, on a personal note, talked about how she kept losing weight while she was in Venezuela, since it is impossible to keep a healthy diet. She told the story of a 23 year old boy who had been detained for 15 days in the back of a truck with about 20 other students. He had told Génesis that his wards had randomly took one of them out of the truck and brought him to another truck with regular detainees. The wards forced the regular detainees to hit the student so hard that the truck moved. If the truck did not move the inmates would be beaten themselves. The students were tortured in other ways too, for instance their food included itching powder, they were attacked with tear gas, and their own faeces and urine were poured over them.

José Miguel Vivanco, Director of the American Division of Human Rights Watch, stated that the Venezuelan government uses its judicial system to prosecute opponents. He has been advocating on an international level, since he believes they have no chance to have a secure and proper investigation at a local level. 

Xabier Agirre, Head of Investigative Analysis Section at the Office of the Prosecutor of the ICC, stated that there are five pages on the situation in Venezuela in the recently published report on Preliminary Examination Activities of the Prosecutor. To continue with the ongoing preliminary examination, the OTP proactively seeks information from various UN bodies and mechanisms, including the recently established Fact-Finding Mission. Jared Genser and Xabier discussed the time span that the preliminary examination into Venezuela had cost. 

Rodrigo Diamanti, President of Un Mundo Sin Mordaza, showed heart-breaking pictures of the crisis. He said that Venezuela has the second-largest migration crisis in the world and that the country has collapsed. More than 80 percent of the inhabitants have no access to clean water and more than 60 percent have less than 6 dollars a month.

ASP18 Side Event: Enhancing Prosecution: A Crucial Factor in Cooperation for Core International Crimes

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

Day 5 (6 December 2019)

Name of the Event: Enhancing Prosecution: A Crucial Factor in Cooperation for Core International Crimes (Side Event co-hosted by Australia, Sweden, the International Center for Transitional Justice (ICTJ), the International Nuremberg Principles Academy).

Overview by: Andreina De Leo, Junior Research Associate PILPG-NL

Main Highlights:

  • Presentation of the ICTJ’s recent publication on Guiding and Protecting Prosecutors.

  • Presentation of the International Nuremberg Principles Academy’s efforts towards improving cooperation between civil society actors and judicial mechanisms in the prosecution of core international crimes, including the updated version of the Guidelines for Social Workers and Care Providers in Germany: Refugees as Potential Witnesses of International Crimes.

  • Discussion on the necessity to find strategies to limit political interference as an impediment to domestic prosecution of core international crimes, and the importance of offering support to victims and civil society in their fight against impunity.

  • A reminder of the importance not to focus solely on legal issues, but also on finding ways to promote a democratic culture based on the rule of law in post-conflict areas to enable victims to trust the judicial system. 

Summary of the Event:

The side event began with two introductory remarks by the Ambassador of Australia to the Netherlands, H.E. Matthew E.K. Neuhaus, and the Ambassador of Sweden to the Netherlands, H.E. Annika Markovic. The former started by recalling the preamble to the Rome Statute and the link it draws between the effective prosecution of serious international crimes and the enhancement of cooperation at the national and international level. The latter, on her part, stressed the increasingly difficult challenges posed by the attempt to ensure accountability in transitional contexts, in particular when it is hard for prosecutors to access the territory and gather evidence.

Dr. Anna Myriam Roccatello, Deputy Executive Director and Director of Programs at the International Center for Transitional Justice (ICTJ), opened the panel. She introduced the panelists and the issues to discuss during the event, namely the challenges to a fair and effective prosecution due to political pressures and the necessity to strengthen the role of civil society and other institutional organizations to advance complementarity.

The first panelist, Mr. Howard Varney, Senior Program Advisor with ICTJ, practicing advocate at the Johannesburg Bar, and former chief investigator for the Sierra Leone Truth and Reconciliation Commission, reflected on the outcomes of the ICTJ’s recent publication Guiding and Protecting Prosecutors: Comparative Overview of Policies, which he co-authored. In particular, he discussed the main challenges posed by domestic prosecution of mass atrocities.  He mentioned, among other things, the lack of guidelines and vulnerability faced by prosecutors in areas such as Sri Lanka, South Africa, and Kenia, where the duty to investigate, prosecute and punish is limited by a lack of evidence, resources, skills, and issues concerning safety and security. With regard to the latter, he explained that in situations characterized by charged political circumstances, prosecution is made difficult by political interference and intimidation due to the fact that the individuals who committed human rights violations can belong to powerful elites, such as the military or the government, which can make it unsafe for a prosecutor. Another factor to take into account is that there are always competing interests at stake with regard to the decision to invest money and resources on either prosecution or the reconstruction of the welfare system in post-conflict situations. Mr. Varney concluded his intervention by underlining that strategies should be implemented to adopt domestic laws protecting prosecutors, as well as enhancing transparency with regard to the legal framework regulating the prosecution of human rights violations arising from conflicts. However, he stressed that the law cannot resolve all problems since the major challenge in these contexts is the way in which prosecutors are chosen and appointed, which is ultimately a political choice.

The second panelist, Dr. Iván Velásquez Gómez, Colombian jurist and former Commissioner of the International Commission Against Impunity in Guatemala, focused on the situation in Colombia and Guatemala. In particular, he pointed out the challenges posed by the lack of trust in democracy as a system of government and the consequent disenchantment in the judicial system as a barrier to the effective prosecution of international crimes at the domestic level.  Indeed, he stressed that if the population believes that some people are above the law, there is no public participation in the democratic process and consequently victims of human rights violations would not be inclined in testifying in criminal proceedings involving the perpetrators of international crimes. As a consequence, he underlined the necessity of strengthening transparency and fairness of the judicial system before concentrating efforts on the prosecution.  He concluded his intervention by suggesting a complementarity approach with regard to the prosecution of international crimes in Latin America based on mixed systems, in which international institutions would guide and support domestic prosecutors. He added the importance of supporting civic movements of civil society and independent press.

Finally, Dr. Viviane Dittrich, Deputy Director of the International Nuremberg Principles Academy, stressed the importance of the fight against impunity in a historical period characterized by an increasing backlash against international and national courts and tribunals. Indeed, she stressed that international courts do not operate in isolation and, therefore, it is necessary to take into account the political environment in which they work. In this regard, the interplay between capacity and political will is vital as political interference, either real or perceived, can be detrimental to the effective prosecution of international crimes. After this introductory remark, she focused on three strategies undertaken by the Nuremberg Academy to promote international criminal law and the prosecution of international crimes and human rights violations. First, she stressed the value of cooperation between civil society actors and judicial mechanisms as lack of cooperation among actors involved can be a major bar to effective prosecution. In this regard, she mentioned that the Nuremberg Academy specifically works on enhancing cooperation between these stakeholders with regard to the prosecution of conflict-related sexual and gender-based violence. Second, she reflected on the fundamental importance of exchange of information regarding international crimes and the principle of universal jurisdiction to enhance domestic prosecution of international crimes. In particular, she focused on a project undertaken by the Nuremberg Academy: “Refugees as potential witnesses of international crimes”, which aimed at drafting guidelines for social workers and care providers working with refugees in Germany on the international obligations to prosecute and punish international crimes, since refugees fleeing persecution are likely to have witnessed such crimes and posses vital information. The updated version of the guidelines in English can be found here.  Finally, she highlighted the significance of standard setting, in particular with regard to the collection and use of digital evidence in the proceedings, as well as the recourse of private investigation in international criminal justice.

The event concluded with a debate on the necessity of promoting a change of culture in certain countries, in which prosecutors are seen as part of the system.

ASP18 Side Event: 11 Years After the August War: Uninterrupted Story of Impunity

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

Day 5 (6 December 2019)

Name of the Event: 11 Years After the August War: Uninterrupted Story of Impunity (Side Event co-hosted by the United Kingdom, Georgian Coalition for the International Criminal Court, and Justice International) 

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

Main Highlights:

  • There are 3 aspects preventing 2008 war victims from living a normal life – lack of medical care, access to education, and unemployment. 

  • International outreach to Georgian society is of the utmost importance because of the active politicization of human rights abuses and the role of the ICC. 

  • Nika Jeiranashvili informed the participants that Georgia plans to nominate a candidate for the prosecutorial elections of the ICC next year. 

Summary of the Event:

The event started with an introduction by the moderator, Nika Jeiranashvili, on the general situation in Georgia – history of the conflict, the crimes committed, and the current situation. Mr. Jeiranashvili stated that the preliminary examinations began in 2008 and that the prosecutor further opened an investigation into crimes against humanity and war crimes in 2015. To start off the panel, he also flagged the many problems with the investigation. 

Nino Jomarjidze continued the discussion by outlining the crimes that have been committed in and around South Ossetia, as well as the efforts that international civil society has taken in prosecuting those responsible. She began her presentation with some facts about Georgia – Russia relations and further discussed the territorial and human rights consequences of the 2008 war, such as arbitrary detainment, torture, and ill-treatment of people in South Ossetia. Ms. Jomarjidze also explained the concept of borderization – marking the boundary of South Ossetia and Georgia with barbed wire fences. She noted that these fences are constantly being moved further into the de-facto territory of Georgia, which has led to people losing their main sources of income or even waking up in a different state overnight. Ms. Jomarjidze continued by describing the steps that civil society and the Georgian government have taken regarding the alleged crimes. Specifically, she outlined that they have submitted applications to the International Court of Justice, the European Court of Human Rights, the International Criminal Court as well as conducted their own national investigations. She emphasized that continuing human rights violations are the result of 11 years of impunity. Accountability of the perpetrators may be a way for enhanced peace and security in the country and to stop continued human rights violations. 

A later speaker, Mariam Antadze, focused on the psychological and physical consequences for the victims of the 2008 war. She began by reading a story of a little boy – Giviko, who described the day the bombs started to fall on his home and how he lost his mother and got seriously injured himself. Mariam explained that there are large numbers of people who have been deeply traumatized by the war and have lost their homes as a result. She noted that there are three main problems these IDPs now face – lack of medical assistance, education, and unemployment. She also stated that victims who live with these unbearable situations must be shown that they are not forgotten and therefore the aid of NGOs does indeed help people. 

Greta Barbone turned the public’s attention to the role of media and international outreach for the prosecution of international crimes in Georgia. She spoke about the efforts which have been taken in order to facilitate the Court’s engagement with victims and the media. Ms. Barbone also introduced some future plans for more aggressive media engagement and international outreach, for instance by producing videos where answers are given to the most pressing questions about the Court. The main aim of these efforts, Ms. Barbone specified, is to establish sufficient knowledge about the Court within Georgian society and to counter some of the political attacks presented during election periods. 

The importance of outreach was once more reiterated by Nika Jeiranashvili, noting that the issue is even more pressing considering the level of misinformation and fake news coming from the opposing side. He emphasized that it is all about the narrative told at the end of the process – by victims, as well as the society at large. Mr. Jeiranashvili furthermore explained the political developments in Georgia since 2012 and how the participants from the 2008 conflict are now being targeted for taking part in the war not only in Georgia but also in other countries, for instance, in Germany.  Answering the questions from the public, Nino Jomarjidze acknowledged that so far efforts to prosecute perpetrators have not led to any positive developments. However, these efforts have neither escalated nor deescalated the ongoing tensions between all parties. 

Lastly, Nika Jeiranashvili informed the participants that Georgia plans to nominate a candidate for the prosecutorial elections of the ICC next year. 

ASP18 Side Event: Strengthening the role of the International Criminal Court in the Asia-Pacific region: A discussion among civil society, States, and the ICC

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

Day 4 (5 December 2019)

Name of the Event: Strengthening the role of the International Criminal Court in the Asia-Pacific region: A discussion among civil society, States, and the ICC (Side Event hosted by the Coalition for the ICC (CICC))

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

Main Highlights:

  • 16 out of the 19 States Parties from the Asia Pacific region are not represented or under-represented at the ICC. There is increased momentum after the opening of investigations in Myanmar/Bangladesh and Kiribati’s accession to the Rome Statute.

  • Nonetheless, panelists called for concerted international efforts to strengthen civil society participation. For instance, in the Philippines, institutional support is required to protect witnesses testifying in the investigations.

  • Apart from cooperating with the ICC, States Parties must also strive to improve their own human rights records. 

Summary of the Event:

Moderator Allison Smith (Director International Criminal Justice Program, No Peace Without Justice) welcomed the panelists. Matteo Tonella (Program Associate, CICC) then provided updates on the CICC’s strategy meeting with civil society actors in Kuala Lumpur.

The first panelist was Horia Mosadiq (Transitional Justice Coordination Group, Afghanistan). She spoke about the amount of time it took the Office of the Prosecutor to request the opening of a preliminary examination in Afghanistan. After 18 months, the ICC decided to reject the opening of a formal investigation, due to the interests of justice. This was in part because the United States was involved. In her view, it was deplorable that other States Parties did not object to the Court’s decision. She acknowledged the ongoing appeal, and called on other civil society members to support the TJCG’s plea for justice.  

This was followed by a presentation by MD Ashrafuzzaman (Asian Legal Resources Center). He began by offering congratulations to Bangladesh for its cooperation with the ICC which led to the authorization of the investigation. However, he noted that there were aspects in which Bangladesh could have fared better. For instance, when Bangladesh called for a special session of the Human Rights Council in 2017, it also signed a bilateral agreement with Myanmar. Preliminarily, this agreement was not sufficiently comprehensive. Moreover, it excluded the participation of the international community, he noted.

Secondly, MD Ashrafuzzaman spoke of the way that relocation was being carried out in Bangladesh. The government was attempting to relocate nearly 100,000 refugees to an island called Vasanchor. However, this relocation poses security risks to the refugees considering the island is fully submerged during some seasons. It could also isolate the Rohingya refugees from the rest of the population. 

Thirdly, he discussed the ban on cellphones that took effect in September 2019. Arguably, this was done to avoid witness tampering. However, on the flipside, Rohingya victims may not be able to then submit evidence recorded on such devices. 

Finally, he spoke of the human rights situation in Bangladesh. He noted that from 1 January to 30 November 2019, 48 people were extrajudicially killed. However, civil society and the media do not have access to this information because it is censored by the government. This could give the idea that impunity is entrenched in the rule of law in the state. In conclusion, he acknowledged that Bangladesh’s human rights track record was not scrutinized by the international community because in accepting the Rohingyas, Bangladesh had actually saved many other countries this expense. Therefore, it is crucial to continue to call for a democratic rule of law in the state. This would also sustain the momentum created by the ICC decision.

Usha Kula (Bar Council Malaysia, Malaysian CICC) then briefed the audience on the progress made by CICC Malaysia. In particular, the outreach efforts undertaken in the wake of Malaysia’s backtracking on its accession to the Rome Statute. This was followed by a short presentation by Butch Olamo (Philippines CICC). Preliminarily, Olamo spoke of the budgetary constraints under which civil society had to operate in the Philippines. The Philippine state was also unsupportive towards human rights organizations. Notably, last year, president Duterte assigned a 20-dollar budget to the National Commission of Human Rights. Furthermore, he voiced concerns regarding the consequences of Philippines’ withdrawal, one of which was the worry that victims cannot avail of the Trust Fund for Victims benefits on account of the withdrawal. A representative from the ICC Presidency later clarified that there is no rule in the Statute that disqualifies victims from receiving physical, psychological or economic support. However, victims will face challenges in practical implementation because the TFV requires the cooperation of the state, which the Philippines is not necessarily bound to provide after its withdrawal. Olamo made a final point about the threats made by the Philippines to obstruct the ICC investigation. President Duterte had announced that he would jail the prosecutor when she goes to the Philippines and witnesses were threatened with sedition charges. CICC Philippines has been working to ensure witness protection. However, it will require institutional support from the international community to facilitate the progress of the investigation. In conclusion, he called for more solidarity, especially within the Asia-Pacific. He also cautioned against allowing the ICC review process to sidetrack the ongoing investigation.

Christian Mahr (Director-External Operations Division, ICC) then provided his comments. He first welcomed Kiribati’s ratification of the Rome Statute and referred to it as a ray of hope amidst the trust deficit in the Court after the Philippines’ withdrawal. He also spoke of the need to increase the representation of the Asia-Pacific, not only in membership, but also within the staff of the Court. Notably, 16 out of the 19 states parties from the region are either not represented or under-represented at the Court. In order to redress this, he called on States Parties to “own” the Rome Statute, to see it as an instrument to secure their interests. He stressed that both the Court and the States Parties must strive towards a common understanding of goals.

The President of the ASP President O-Gon Kwon then joined the meeting. He announced that the Bureau agreed to present the names of the 9 experts for the review process. Priya Pillai (Asia Justice Coalition) asked the ASP President whether there is a more cohesive way for the ASP to involve non-states parties like India, China, and Pakistan. Usha Kula asked the ASP President about the possibility of the outreach department receiving a larger budget. Noting that the Court did not have the luxury of resources for anything other than investigations, the ASP President nonetheless assured the participants of best efforts to improve outreach and cooperation in the region.