ASP19 Side Event: Future of International Justice: Accountability Mechanism for Grave Crimes in Ukraine

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

11 December 2020

Name of the Side Event: Future of International Justice: Accountability Mechanism for Grave Crimes in Ukraine (Hosted by the Ukrainian Legal Advisory Group)

Report By: Marielotte van Ballegooijen, Junior Research Associate PILPG-NL  

Highlights: 

• Panelists underlined the challenges of investigating grave crimes committed in Ukraine, particularly the intimidation of witnesses and disappearance of evidence at the national level.

• Panelists noted that even if the international community assists in addressing these investigation challenges, structural changes are required within the Ukrainian justice system to achieve accountability. 

Summary of the Event: 

This side event, organized by the Ukrainian Legal Advisory Group (ULAG), brought attention to accountability for alleged grave crimes committed during the armed conflict in Ukraine. Five years ago, the Office of the Prosecutor (OTP) opened a preliminary examination into the crimes committed in Ukraine. At the same time, Ukrainian authorities conducted their own investigations. This side event aimed to address a specific question related to the ICC’s principle of complementarity: How should the nexus between the Ukrainian state’s responsibility to investigate and prosecute grave crimes and the role of the ICC be balanced? 

The moderator of the event, Ms. Nadia Volkova, Director of ULAG, introduced the panel consisting of Ms. Valeriya Melnik, Mr. Akardiy Bushchenko, Ms. Katrin Weilhammer, Mr. Eric Witte, Ms. Priya Pillai, and Mr. Rod Rastan.

Moderator Ms. Volkova directed the first question to Ms. Melnik, Prosecutor of the Department for the Supervision of Crimes Committed During Armed Conflict under the Office of the Prosecutor General of Ukraine, on the challenges the Department faces when trying to achieve accountability. Ms. Melnik noted that the first challenge is that Ukraine struggles to effectively conduct investigations, mainly due to its relatively weak justice system. She mentioned issues such as the temporal scope of the alleged crimes that hinder the investigation process. For instance, victims and alleged perpetrators continue to reside in occupied territory, which means conducting discussions or interviews with them is impossible. Besides this, a procedural challenge is that under Article 219 of the Ukrainian Criminal Code, pre-trial investigations need to be conducted within eighteen months after the alleged crimes were committed. This poses a time limit problem that contradicts the Rome Statute, under which no statute of limitations is applicable to war crimes. 

Following Ms. Melkin’s remarks on these challenges, Mr. Bushchenko, Judge of the First Chamber’s Criminal Cassation Court in Ukraine, noted that war crimes prosecutions are extremely difficult in Ukraine. He described that the Department is working alone with few resources, which may lead to the disappearance of evidence or intimidation of witnesses. He proposed to structurally reform the Ukrainian justice system to improve investigations, witness protection, and perpetrator interrogations. Although these issues occur at the national level, he noted that the ICC could assist Ukraine with restructuring, as offices such as the OTP could lend resources to aid in pre-trial investigations.

After panelists with experience at the national level had spoken, the moderator invited panelists from the international level to share their thoughts. Ms. Weilhammer, Head of the National Justice Programme of Justice Rapid Response, noted that, besides the already mentioned challenges related to the Ukrainian legal framework, there are also certain capacity and evidentiary challenges as well as challenges with prosecutorial strategy. A further identified issue at the national level is witness management and witness protection. The final main challenge Ms. Weilhammer pointed to concerns victim participation. Ms. Weilhammer described that at the national level prosecution tends to focus on perpetrators, but argued that this approach should be shifted to include victims as well. This could lead to more evidence, as victims would feel empowered to come forward. Ending her remarks, she concluded that these challenges do not only arise domestically, but are also challenges prosecutors and investigators at the international level face.

Mr. Witte, Senior Policy Officer at the Open Society Justice Initiative, followed by sharing potential models that could address some of the specific challenges and needs mentioned, referring to models used in other situations as reflected in OSJI’s 2018 handbook on “Options for Justice”. He specifically referred to a successful model implemented in Guatemala. The Guatemalan model, with the International Commission against Impunity (CICIG), included international prosecutors and advisors working at the national level and providing advice, mentorship, and legal knowledge on how to move forward in the investigations and prosecutions, rather than taking over the work from domestic departments. This model led to multiple prosecutions, such as a genocide conviction of a previous head of state and dictator General Efraín Ríos Montt. On a final note, Mr. Witte underlined that such models should be informed by the needs of the country and that they are largely dependent on political will. They only work if, at a national level, states are willing to accept the international community’s involvement. 

Ms. Priya Pillai, international lawyer and Head of the Asia Justice Coalition, continued with Mr. Witte’s train of thought and discussed the potential importance of a coalition between the international community and states, using the Asia Justice Coalition as example. She argued that a coalition can ensure proper communication, transparency between individuals, and diversity in approaches. The existence of a coalition could also contribute to political will, as individuals are equally taken into account, and could generate both internal and external support. She noted, however, that involvement by the international community does not always lead to successful prosecutions.

The side event ended with Mr. Rastan, representative of the ICCs OTP, with remarks on the PE in Ukraine and complementarity. Mr. Rastan briefly referred to the debate of whether the ICC takes the state’s concerns into account or whether they proceed with investigations and expect the state to simply accept their conclusions. Mr. Rastan underlined that the ICC wishes to support national authorities in their accountability efforts. He further reiterated what the OTP had mentioned at last years’ ASP: that the OTP has identified crimes committed in Ukraine that fall under the Court’s jurisdiction and that the OTP has noted the actions undertaken by Ukrainian authorities as well as challenges at the national level. Building on this, Mr. Rasten informed participants that an announcement on the PE will be made later today. If an investigation were to be opened, he continued, complementarity would remain a crucial point, highlighting the importance of continued cooperation between the ICC (as a court of last resort) and Ukrainian national authorities in the fight against impunity. He referred to successful examples of the ICCs complementary operation with national authorities in the Central African Republic, Libya, the Democratic Republic of Congo, and Uganda, in which the OTP was able to work with national authorities on prosecuting alleged perpetrators. He also concurred with Ms. Pillai’s point that even if the ICC proceeds with an investigation into the grave crimes committed in Ukraine, it does not end there as an ICC investigation does not mean a successful investigation nor does it resolve structural issues at the national level. If an investigation were to be opened, that would be the moment to re-emphasize close engagement between the ICC and national authorities, as well as to build a coalition or network to strengthen accountability at the national level.

A recording of the event can be found here: https://www.youtube.com/watch?v=qSmjAh6J-ek&feature=youtu.be.

ASP19 Side Event: Book Launch: Intersections of Law and Culture at the International Criminal Court

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

December 10, 2020

Name of the Side Event: Book Launch: Intersections of Law and Culture at the International Criminal Court (Co-hosted by Australia, The Netherlands, Montaigne Centre, Public International Law & Policy Group (PILPG), SIM, UGlobe (Utrecht University))

Report by: Alexandrah Bakker & Paul Weber, Junior Research Associates PILPG-NL

Highlights: 

• The ICC’s culturally steeped procedures and areas of operation offer many areas for research on the intersections between law and justice - from varying conceptions of justice, the cultural impact of language, to cultural reservations to international criminal law.

• Improved cultural sensitivity on part of the ICC might effectively counter criticisms like the “African bias” that the Court is often accused of.

• A better understanding of cultural mechanisms may improve the administration of justice by the ICC and the Court’s relationship with communities affected by violence.

Summary of the Event: 

Matthew Neuhaus, Australian Ambassador to the Netherlands and chair of the event, opened the book launch by introducing the panelists. He noted that Nikhil Narayan’s chapter, which discusses Asia’s reluctance to join the International Criminal Court (ICC), is of particular interest to Australia as a member of the Indo-Pacific. He also expressed delight at how the book engages closely with African perspectives.

Judge Raul Pangalangan, judge at the International Criminal Court, made some introductory remarks. He observed that although cultural arguments find immense currency in other fields of international law, they are rarely raised in international criminal law. He referred to the Al Mahdi case, in which he served as part of the Trial Chamber, as bearing promise of a change in this trend. He lauded the book for its nuanced reflections on the cultural features and implications of the ICC’s dispensation of justice both inside and outside the courtroom.

Julie Fraser, one of the editors of the book, observed that international law is culturally informed and is an element of culture. The book makes a novel contribution to scholarship in so far as it addresses not only the more obvious aspects of culture at the ICC but also the less visible aspects: intangible cultural heritage, justice as a concept, processes like oath taking and truth telling. Brianne McGonigle Leyh, the other editor of the book, then introduced the contributors of the book and the panelists for the event.

Dr. Leigh Swigart, the first panelist, addressed the academic motivations of her chapter on how the ICC responds to the challenge of accommodating linguistic needs in the vastly different situation countries. Swigart’s chapter draws largely from her past interviews with  ICC officers who provide and use language services. Swigart noted that language and culture are very tightly intertwined: language is a part of culture, and language is used to transmit and express culture. However, many ICC officers consider themselves as far removed from the culture of the situation countries. This underlies many institutional features of the Court such as its unspoken bias towards the English language over the French language and the privileging of legal knowledge over other kinds of expertise.

This was followed by a presentation by Owiso Owiso and Phoebe Oyugi, who have contributed a chapter on plea negotiations. Defined in Article 65 of the Rome Statute, plea negotiations are a legal device through which the accused agrees to plead guilty in exchange for a lower sentence or a lower charge (based on consultations with the Prosecutor). Even per their current conception, plea negotiations enhance the efficiency of the Court: they result in shorter trials, fewer appeals, and dispense with the need to fly witnesses to the Hague. Owiso and Oyugi argued that plea negotiations, if suitably reimagined, hold the potential to better integrate the ICC with domestic transitional justice processes. By way of illustration, in addition to pleading guilty, the accused may be required to engage in public confessions (as in the mato oput in Rwanda), and participate in reconciliation and peacebuilding activities.

Nikhil Narayan, the fourth panelist, contributed a chapter examining Asia’s relationship with the ICC. The Asia-Pacific is the least represented region among the ICC’s states parties: only 19 of the 54 states that constitute Asia-Pacific have ratified the Rome Statute. In his chapter, Narayan observed that this trend ties into a more systemic issue - the common distrust amongst Asian States towards issues of sovereignty, territorial integrity, and non-interference in domestic affairs. The “Asian values” argument is often cited to justify Asia’s reluctance to cede sovereignty to international law. This has manifested in a deep suspicion of the institutionalization of human rights law, with Asia being the only region that lacks a strong coordinating human rights mechanism. Some scholars argue that this skepticism will undermine human rights in Asia, and that Asia needs to engage more constructively with international criminal justice. Conversely, Narayan called on the ICC to engage more closely with Asia and dispel any legitimate misconceptions with regard to Western bias.

Melinda Taylor, the final panelist, spoke of how culture is often invoked and characterized as a defence to the law. Such a narrative invisibilizes the reality of law as a construct of culture. Therefore, it is not appropriate to place law and culture in opposition with each other. Taylor likened the Rome Statute to a language, where different words hold different meanings and values for different users. She pointed to the example of Rwanda, where witnesses reported “seeing things” in locations where they were not physically present, because “seeing things” held a particular significance to them. It is vital for different cultures to see their own values recognized and reflected in the Rome Statute. This could encourage a sense of local ownership and the legitimacy of the international criminal justice project.

The event concluded with questions from the audience - on community engagement and the implications of the recent American presidential elections on the US’s relationship with the ICC. Responding to a question on the ICC’s outreach activities, Owiso and Swigart spoke of how the Court’s current outreach efforts do not go far enough in integrating communities with the visions of the Court. More can be done to repackage the VPRS’ messaging so as to align it with the cultural sensitivities of the victims. Melinda Taylor further noted that outreach efforts should also seek feedback from communities on what they expect from the Court. Notwithstanding concerns of logistical feasibility, local hearings would advance this cause.

ASP19 Side Event: Human Rights Documentation by Civil Society: A Pathway Toward Accountability

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

10 December 2020

Name of the Side Event: Human Rights Documentation by Civil Society: A Pathway Toward Accountability

Report by: Sanne Keijer & Zselyke Szantho, Junior Research Associates PILPG-NL

Highlights: 

• Technological tool developers and legal experts should work together and a dialogue between them needs to be encouraged and continued.

• Professor Margaret deGuzman stressed the importance of a clear purpose for a documentation mission, especially when interacting with victims and witnesses. This allows victims to make informed decisions. 

• Bethany Houghton highlighted that recent documentation tools need to be analyzed from a legal perspective. Once the legal community pronounces whether or not these tools meet evidentiary standards of international tribunals, civil society and tool developers can make more informed decisions about the tools they adopt. 

Summary of the Event: 

Hosted by the Public International Law & Policy Group (PILPG), this event concerning Human Rights Documentation by Civil Society offered excellent insights into the current international efforts and challenges to improve human rights documentation. Since 2018, PILPG has published two reports on documentation: Documenting Atrocity Crimes Committed Against The Rohingya in Myanmar's Rakhine State (2018), and Human Rights Documentation Solutions: Human Rights Documentation by Civil Society – Technological Needs, Challenges, and Workflows; Perspectives from Documenters, Transitional Justice Experts, and Tool Developers (2020). During this ASP side event, the panel, consisting of Milena Sterio, Margaret deGuzman, Adrienne L. Frick, and Bethany Houghton, focused on the particular difficulties civil society documenters face when documenting atrocity crimes for the purposes of accountability and shared their experiences of documentation in Bangladesh/Myanmar.

Dr. Gregory Noone welcomed everyone and started the conversation by asking an important question. How can civil society establish a method of documentation which can help achieve accountability goals? This underscored the importance of strong methodology and workflow which will assist documentation. There are common struggles human rights documenters face, which highlights the need for more discussion and knowledge sharing.

Dr. Gregory Noone continued with a question on the main findings of the 2018 Rohingya report directed at Adrienne Fricke. She responded that reasonable grounds exist to believe crimes against humanity, war crimes, and genocide have been committed in Myanmar’s Rakhine State. The report is based on a large-scale investigation in which Adrienne Fricke participated as an investigator. 

Dr. Gregory Noone then turned to Bethany Houghton, asking her about the Human Rights Documentation Solution project. She argued that with respect to technology, the report found that there was not one need; rather a whole host of different challenges that human rights documenters face. The report contributes to methodologies, the interoperability of combining different tools, and other wide-ranging needs. In the next phase, PILPG will co-design a tool to assist with information analysis and management. 

Dr. Gregory Noone then steered the discussion back to the Rohingya investigation, asking Adrienne Fricke about methodology. Adrienne Fricke expanded our knowledge of the methodology used during the Rohingya investigation. She explained that it was unique, as they used not only criminal investigative measures, but also an epidemiological sampling-based survey design. 

A total of 1024 people were interviewed in the setting of a refugee camp, which had grown to host 800,000 people. Both the choice of household and the choice of interviewee within the household were randomized. Within the refugee camp, the researchers made sure to interview each quadrant adequately in order to assure that the population is descriptive.

The methodology the report used required a fair amount of training and discipline. All individuals who participated had to be trained. This included the investigators, interpreters, and local guides. Dr. Gregory Noone returned to Adrienne Fricke’s point on the importance of methodology, by arguing that where people are failing these endeavors, is where they walk into a camp and simply interview the first 50 people who speak English. He stresses that such methods gravitate to the same people NGOs and media find. Using only these sources would skew the database

Adrienne Fricke responded to Dr. Gregory Noone’s question about which documentation tools were used. She explained that the essential tool used was a questionnaire developed by the state department. The questionnaire was based on the one used in Darfur, but an improved version of it, amended in light of all lessons learned. The investigators also have had the opportunity to review the document and other foundational documents for good subject knowledge. 

Adrienne Fricke further noted that they have had group discussions on the challenges faced by all participants. This included a focus on the physical and mental wellbeing of the team and discussions on self-care in the field. Over time, this proved to be one of the most important, foundational features of the background work, as conditions were challenging.

Dr. Gregory Noone pointed out the physical difficulties investigators faced. The program required walking long distances in the heat. These challenging conditions explain why the importance of self-care and safety was highlighted repeatedly. He also added that another important aspect was the composition of the smaller teams, which included both females and males, in case one needed to have a same-sex conversation. He then asked Milena Sterio for a further account on methodology. 

Milena Sterio described that one essential point about the methodology has been the importance of controlling the sample. This ensured that the legal analysis was based on accurate information. This included, as previously mentioned, not only talking to the first 10 people the researchers encountered. It also involved excluding minors or people who have not had first-hand accounts of the atrocities. Additionally, the report only included people who fled the region since October 2016. Dr. Gregory Noone then asked Milena a question on which part of the methodology has been most scrutinized. Milena responded and argued that methodology is so crucial since if the methodology is wrong, the entire report is based on flawed information. If the report concludes that there is reasonable ground to believe that genocide or crimes against humanity were committed, and the methodology is flawed, that means the entire report is based on skewed information and its findings are also inadequate. For example, a non-randomized sample, including respondents who do not have first-hand information, is an instance of flawed methodology. 

Dr. Gregory Noone confirmed that appropriate collection and coding of the information is essential to its analysis. He highlighted that in the process of coding, consistency has been key. As there was a big pool of information, researchers needed to make sure that they code the same way so the results were comparable. This required continued training. 

Dr. Gregory Noone then referred to another interesting issue, asking Margaret deGuzman to describe some of the pitfalls she sees in human rights documentation. In her response, she focused on the general level of the type of challenges that can be addressed for any investigation, which in turn can lead to better outcomes. The most important question to ask is what the ultimate purpose of collecting the information is. That can often be challenging, as researchers might not always know going into the investigation what the purpose is. Still, keeping the purpose in mind is crucial in several aspects.

For instance, responding to questions can be traumatizing for victims, especially if they are not given an idea of what is going to happen with the information. Knowing what the process aims for can be a factor in deciding whether or not they want to engage in the interviews. Knowing the aim of the research is also crucial from the point of view of collecting the information. Here, knowing what the data is going to be used for is important in deciding some features of data collection. Collecting evidence in a court of law is different from a truth commission, engaging in a different level of detail.

The overarching question is whether the research is primarily for the population that has suffered and/ or has a more global purpose. This determines what is being taken into account. Research with global purpose might also have different goals than the one with local objectives; these goals might clash with each other. Global society organizations have to reflect on this in order to know how to deal with strategizing the collection of information.

Dr. Gregory Noone asked Bethany to respond with some ideas on different understandings of chain of custody, from the perspective of the newly published report. In response to Dr. Gregory Noone’s question on the different understandings of chain of custody, Bethany provided an interesting insight. She explained how tool developers conceptualized chain of custody, and how lawyers were conceptualizing chain of custody differs greatly. Although there is a common goal of accountability and justice, when it comes down to finer details, there is tension in how you go about doing it. 

She added that we need to be critical of encryption, as encrypted data may always be in the wild. It should not be seen as a fully safe solution. Here, Bethany also highlighted multiple times that we need more opportunities for dialogue between the technological and the legal side. 

A question was then raised from the audience, on how the local guides were selected. In response, it was mentioned that the selection process of local guides was not that important for the investigation. Interpreters were more important. Local guides were not involved in the collection of data themselves. 

Adrienne Fricke highlighted the key role of the interpreters, who served as intermediaries between the respondents and the investigators. Their work was highly demanding from several aspects. The emotional toll of listening to and translating the respondents’ recollection of trauma can be significant. Additionally, interpreters had to have a good working relationship with their investigators, as the teams oftentimes had to do iterative work. In the recounting of stories, vocabulary and verbs matters, the description of colors and patterns can prove to be essential when describing an insignia on a uniform. Interpreters were selected on the basis of their understanding of dialect, keeping in mind the need for both female and male interpreters. Additionally, their understanding of culture and their proximity to it was essential in collecting data of high quality.

In turn, Dr. Gregory Noone confirmed the relevance of common understanding, especially in the case of weaponry and geographical locations. Having an accurate description of the weapon or the location is essential, yet, highly challenging. For instance, if respondents speak of distance in walking hours, investigators might have trouble with translating that into actual distances and location on maps. Lastly, Dr. Gregory Noone explained how traumatic some of the issues they witnessed were. Therefore, a psychologist was included in the team to help them deal with the severity of the things they were witnessing and hearing.

Dr. Gregory Noone asked Milena Sterio how we should navigate these different sources, to hold people accountable. In response to Dr. Gregory Noone, Milena Sterio highlighted that if accountability is not the overall goal, you run into trouble. A problem for PILPG, but in particular for local organizations, is that they may be unaware of relevant evidentiary standards. What can be helpful here, are particular technological tools that are designed to collect evidence that meets evidentiary standards. She pointed towards a knowledge gap between the legal community and civil society. Margaret deGuzman pointed out that we can acknowledge that the field has come a long way and that civil society has become a big part of that. Margaret deGuzman pointed out that she hopes the rise of technological tools can make it easier to meet evidentiary standards. These tools and the work PILPG is doing in this regard is very important to make the process easier, especially where evidentiary standards are so complex.

Bethany then explained that winds of change are pushing for multiple tools being developed to help data collecting. These tools, such as EyeWitness and Proofmode, often automatically add metadata. However, what is missing, is that from a legal perspective we need to look at these tools and evaluate whether or not they meet legal evidentiary standards. From the side of the tool developers, we need to help them by confirming. This will result in more Civil Society members using these tools, as they will be ensured of their validity, and can hereby make more informed decisions. 

To sum up the event, Dr. Gregory Noone asked all speakers to provide us with their last thoughts, or key insights tool developers and people in the field should take away from this conversation. Adrienne Fricke responded and said that what ends up being the most useful from the perspective of documentation, is what seems more boring in the moment. How did you know, which sensory details did you experience, what was the time of day? When listening to the difficult narratives of atrocities, it is easy to become overwhelmed by the actions, Adrienne Fricke added. We need to remember what will matter to the investigator in twenty years, as those are the details that may not feel important in the moment. 

Milena Sterio added on with her final thoughts, highlighting that we need to know what the evidentiary standards are. Tool developers need to work together with lawyers, and civil society should be working together closely with the international community if accountability is the goal. To sum up, Milena Sterio argued that there is no one size fits all solution, and we need to be creative to overcome these challenges. 

As a final thought, Margaret deGuzman pointed out that she would like to see more overarching coordination happening at the international level. Historically it was run out of the United Nations. Recently, the UN has not been able to play as active a role for various reasons including a lack of funding and a lacking level of technological development, but would be great if either UN or other organization could serve as a HUB for this civil society documentation work. This may be something to think about in the future. Margaret ended by pointing out the tension between universality and pluralism.

As a final thought, Bethany Houghton reinforced one of the key insights, which was the importance of starting to think where the end will be, accountability. What really is the end goal of documentation, having that goal in mind is critical at the beginning of any documentation effort. 

Dr. Gregory Noone concluded the event by thanking the panelists and participants, and added that he admires and applauds all people involved in the field. 

Read the reports here:
https://www.publicinternationallawandpolicygroup.org/rohingya-report https://www.publicinternationallawandpolicygroup.org/hrds-phase-i-report-launch

A recording of the event can be found here:
https://www.publicinternationallawandpolicygroup.org/hrdocs-icc-asp

ASP19 Side Event: Crimes Against Humanity and Complementarity in Latin America

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES

9 December 2020

Name of the Side Event: Crimes Against Humanity and Complementarity in Latin America (Co-hosted by: Coalition for the International Criminal Court (CICC), International Federation for Human Rights (FIDH), Comisión Mexicana de Defensa y Promoción de Derechos Humanos (CMDPDH), Comisión Colombiana de Juristas, Colectivo de Abogados José Alvear Restrepo , Reporters Without Borders (RSF))

Report by:  Diana Sposito, Research Associate PILPG-NL & Shaya Javadinia, Junior Research Associate PILPG-NL

Highlights:

• Latin America is a violent region that requires effective investigations and accountability. In several states, including Mexico, Colombia, Venezuela, and Nicaragua, non-state actors and state authorities commit egregious abuses that amount to crimes against humanity.

• Due to the high impunity and lack of judicial independence in most states, the ICC has a relevant role to play to strengthen the fight for justice.

• The opening of PEs by the OTP is a positive first step, but more is required; states need to engage and take measures toward effective investigations.

Summary of the Event:

On Wednesday, December 9th, the Coalition for the International Criminal Court (CICC), together with the International Federation for Human Rights (FIDH), the Comisión Mexicana de Defensa y Promoción de Derechos Humanos, the Comisión Colombiana de Juristas, the Colectivo de Abogados José Alvear Restrepo, and Reporters Without Borders, co-hosted a side event in the margins of the 19th ASP on crimes against humanity and complementarity in Latin America, aimed at discussing the situations in Mexico, Colombia, Venezuela, and Nicaragua more specifically.

The moderator of the event, Carmela Garcia (CICC), started by thanking the ASP for the space it opens to allow dialogue between states and include the participation of civil society in core debates regarding human rights. She highlighted the active participation of Latin states by denouncing grave violations of human rights in the region.

The first speaker, Jimena Reyes (FIDH), discussed the existence of crimes against humanity in the Latin region. According to Reyes, Latin America is among the most violent continents in the world, with crimes committed both by non-state actors (NSA) and state agents. In Mexico and Colombia, the majority of crimes are committed by NSAs, while in Venezuela and Nicaragua, state authorities and security forces configure the majority of perpetrators. However, the number of crimes committed by state agents in Mexico and Colombia is still highly significant.

Reyes shared the example of drug cartels in Mexico. These NSAs commit a series of organized crimes, usually with the participation of security forces, resulting in crimes against humanity, including enforced disappearance, sexual violence, torture, and murder. Moreover, even the official discourse of Mexico’s war on drugs includes violence and indiscriminate use of power.

The speaker also claimed that a new wave of violence in the region has started, and the possibility of peacebuilding is continuously shrinking. The Nicaraguan government, for instance, has started violent authoritarianism, resulting in the murder of several political dissidents, protestors, and civil society in general. As Nicaragua is not a party of the Rome Statute, the possibility of justice is limited.

Reyes furthermore said that the ICC Office of the Prosecutor (OTP) opened preliminary examinations (PE) in the situations of Colombia and Venezuela, finding that there is a reasonable basis to believe that crimes against humanity are committed in these states. The OTP has also opened a PE in the situation in Mexico, but, in all three situations, there was no concrete and significant action so far.

The second speaker, Juan Carlos Ospina (Comisión Colombiana de Juristas), tackled the issue of complementarity. He mentioned that the PE on the Colombian situation, opened by the OTP in 2004, found reasonable grounds to claim the existence of crimes against humanity in that state, which include extrajudicial executions committed both by NSAs and police agents. This led the path for transitional justice efforts in Colombia, but there is still a need to strengthen the fight against impunity and for guarantees of non-repetition.

During his speech, Ospina provided some questions for the audience to reflect on. One of them was how to determine that the effort of states for justice is genuine and how to materialize the positive complementarity of the ICC, beyond legislation. He proposed the creation of parameters to evaluate PEs and an analysis of how these criteria could allow us to value and assess the impacts and effects of that complementarity.

The third speaker, Calixto Avila (Informal Venezuelan NGO’s Network), focused on the situation of Venezuela. He referred to the Human Rights Council Fact-Finding Mission on the Bolivarian Republic of Venezuela, which concluded that both state authorities and armed groups have committed crimes against humanity in Venezuela. The mission also found that high-level authorities, including the head of state, had knowledge of these crimes and contributed to them through omission.

In the sequence, Avila touched upon the role of the Venezuelan judiciary in the fight for justice. According to him, impunity of serious crimes in that state shows a lack of independence of the judiciary despite the existence of a national discourse that judicial powers work effectively to hold the perpetrators of these crimes responsible. The UN Mission also found that the judiciary contributes to impunity and denies justice to victims, and urged the state to take measures to assure this independence. Avila pointed out that one of the main problems in Venezuela is the lack of independence and impartiality of the judiciary.

The fourth speaker, Olga Guzmán Vergara (CMDPDH) began her speech by reminding the audience that the former Mexican President, Felipe Calderón, declared a war in 2006 against organized crime with the alleged aim to save Mexican children and youth from drugs and addiction. From that moment onwards, however, Mexico witnessed an increase in violence in security, corruption, torture, sexual violence, murder, enforced disappearances (among others). These events were documented by civil society organizations, academia, and international human rights mechanisms. Guzmán Vergara explained that based on the available evidence, the acts of violence were not sporadic acts but rather planned actions that followed a specific pattern and carried out state policy. The recurrence of these violent events gives rise to a reasonable basis to conclude that by committing these allegedly widespread and systematic attacks on civilians, Mexico is in violation of article 7 of the Rome Statute, to which Mexico has been a party since 2005. Involvement of the military in public security in the 14-year fights against drugs has increased the illegal and indiscriminate use of force against civilians, which can be regarded as state policy. Guzmán Vergara also explained that in Mexico there is a culture of forced disappearances, and torture is used as a method to obtain forced confessions. Human rights organizations have documented evidence of such violations. She invited the audience to review one of the CMDPDH’s most recent communications, which shows that the office of the Mexican prosecutor has recorded a large number of criminal investigations on torture, for which they have issued very few sentences. According to Guzmán Vergara, torture, a “common tool” for state security institutions, is perpetrated in complicity of forensic professionals and authorities in charge of the investigations and has replaced a thorough investigation of facts. She also spoke about enforced disappearances, murders, and other crimes that take place in a systematic nature in Mexico and are denied or tolerated by the authorities. Civil society in Mexico has been investigating these events, and the OTP is also analyzing the situation. Guzmán Vergara mentioned that the civil society has yet to see the result of their calls to ICC, which is important for providing answers to organizations and the victims that have resorted to the ICC as a unique alternative since the Mexican authorities have not provided justice. The OTP has yet to determine whether there is reasonable basis to open investigations. Guzmán Vergara also pointed out that while the ICC can play an important role in bringing justice to victims, it is important for Mexico to not only recognize that crimes against humanity have been committed, but to also take action and address the impunities by investigating the alleged crimes with the help of civil society and human rights defenders.

The fifth speaker, Antoine Bernard (RSF and Propuesta Civica), spoke about the crimes committed against journalists in Mexico. According to an analysis conducted by RSF, crimes committed against journalists in Mexico are not sporadic but are planned to silence journalists and stop them from performing their journalistic functions. The recurring and organized nature of these crimes provides reasonable basis to believe that journalists in Mexico suffer crimes against humanity for the very reason of their identity as journalists. Bernard pointed out that while Mexico created protection and prosecutorial federal mechanisms in 2010, these mechanisms recognized their own ineffectiveness in exhibiting their mandate. Moreover, Mexico has not only shown unwillingness to take measures to fix this problem, but also has been shielding those soliciting and ordering the commission of these crimes. Bernard concluded his speech by mentioning the names of a number of journalists who have lost their lives as a part of the alleged widespread and systematic crimes and requested the Prosecutor to take the decision to open a PE on the alleged crimes against journalists committed by Mexico against journalists.

The final speaker, Michelle Reyes (WIGJ), addressed the issue of sexual violence as a crime against humanity. She noted that there is a general lack of understanding of the meaning of ‘sexual violence’ and its relation to crimes against humanity. Moreover, she explained that while the Rome Statute does mention sexual violence as a crime against humanity, it does not provide a definition for the term ‘sexual’ in the Elements of Crimes. She further highlighted the importance of closing this gap, and explained the role of civil society and campaigns, such as “Call It What It Is,” in helping to establish a definition of this term through creating practical guidelines. WIGJ has partnered with other civil society organizations in Colombia, in which there is a great level of impunity, particularly in cases of sexual violence and have tried to identify the main obstacles in prosecuting sexual violence. Through these surveys, the organizations aim to understand the Colombian view and the Colombian domestic law on sexual violence, which can respectively and in line with the principle of complementarity, help the work of the ICC and other international organizations.

At the end of the side event, the panel opened space for questions. Some of these concerned the status of specific cases, like the one related to the status of a case against Mexico, initiated by the lawyer Netzaí Sandoval in November 2011. One of the panelists, Guzmán Vergara noted there have been no updates since the 18th ASP, when Mexico was in phase one of the investigation. Additional questions concerned ways to assure celerity in investigations to stop killings urgently, and the current situation of human rights activists in these states.

The side event concluded with an invitation to look at the FIDH’s recommendations to the 19th Session of the Assembly of States Parties to the Rome Statute at: https://www.fidh.org/en/issues/international-justice/international-criminal-court-icc/icc-ahead-of-19th-asp-fidh-issues-recommendations-to-strengthen-court.

ASP19 Side Event: International Expert Review of the ICC: Civil Society Perspectives on Next Steps

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES

8 December 2020

Name of the Side Event: International Expert Review of the ICC: Civil Society perspectives on next steps (co-hosted by Human Rights Watch (HRW), International Federation for Human Rights (FIDH), & Liechtenstein, Spain, Switzerland, and Sierra Leone)

Report by: Isabelle Jefferies, Junior Research Associate PILPG-NL

Highlights:

•  In this event, members of civil society engaged in a discussion on the International Expert Review of the International Criminal Court (ICC).  The review was commissioned by the Assembly of State Parties in December 2019, and delivered its final report containing extensive recommendations on September 30, 2020. 

• The conversation focused on the next steps to be taken, and in particular, on the role civil society has in this regard.  Given its firsthand experience of the impact of the Court’s shortcomings, notably on victims and other affected communities, civil society has a unique perspective within the system of the Rome Statute. 

• The panel was unanimous in stating that civil society must play a key role in the implementation and monitoring of the recommendations made in the review.

Summary of the Event:

The ambassador for Sierra Leone began the conversation by emphasizing the significance of civil society within the system of the Rome Statute and the continued importance of this system in promoting the global fight against impunity.  He drew attention to the importance of a continued commitment by all stakeholders to the Court, if the review process is to be successful. The ambassador for Liechtenstein also commented on the value of incorporating the voice of civil society in the review process. It is crucial to remember that without civil society, the Rome Statute would not have come about in the first place.  Also, the review comes at a time when multilateralism is being undermined, and the Court faces increasing political attacks and widespread criticism, so its importance cannot be understated. 

After these introductory comments made by the spokespersons of the event sponsors, questions were put to the panelist.  In particular, they were asked to share their views on the substance of the recommendations made in the review, especially those relating to victims’ rights and engagement with impacted communities.  Nino Jomarjidze, representing the Georgian Young Lawyers Association and the Georgian Coalition for the ICC, began by recalling that this review was an opportunity to strengthen the ICC and the Rome Statute system as a whole, and importantly, to deliver justice for victims. She raised some concerns with regards to the recommendation that the Office of the Prosecutor (OTP) should apply a higher threshold of gravity with regard to preliminary examination.  In her view, this would result in further restrictions to the jurisdiction of the Court, and would cause disappointment to victims of serious international crimes.

Shawan Jabarin, from the Palestinian Rights Organization Al-Haq and the International Federation for Human Rights (FIDH), welcomed the recommendation that the Court should strengthen its relationship with civil society, and also bolster the place of victims within the Rome Statute system. He noted the recommendation made by the FIDH that a review mechanism should be created, whereby a body appointed by the bureau would have the mandate of planning, coordinating, and monitoring the implementation of the review, in consultation with civil society members. This would facilitate the effective and swift implementation of the recommendations. He noted that the experts failed to recommend an increase in the Court’s budget, and instead recommended ways in which it could become more efficient. For Jabarin, this would simply limit the number of cases taken on by the Court, and delay the investigation of the ones it does take on.  Overall, this would simply cut the Court’s ability to fight impunity.

Leila Sadat, James Carr Professor of International Criminal Law at Washington University, Director of the Whitney R. Harris World Law Institute, and Special Adviser on Crimes Against Humanity to the ICC Prosecutor, commended the Expert Review, which was delivered on time, despite the ongoing COVID-19 pandemic. The report came up with some creative recommendations on how to improve the efficiency and quality of the Court’s jurisprudence and should help the Court move forward in a positive direction.

Chino Obiagwu, from the African Network for International Criminal Justice, was also satisfied with the recommendations and commended the report generally.  However, he believed a number of political questions, which are highly relevant, lacked consideration, such as funding or problems of cooperation by State Parties.

The panel was also asked to discuss what the steps should follow after the delivery of the report.  Some of the key comments made by the panelist were that the recommendations should be implemented in a timely and effective manner.  However, they conceded this will not be an easy process, as it will require resources that the Court simply does not have.  As a result, it may be useful for stakeholders to engage in dialogue with each other, in order to prevent an overlap on their respective work in the implementation of these recommendations.  Furthermore, civil society should be included in the implementation process.  Another suggestion of the panelist was to create a strategy of implementation.  In fact, certain recommendations should have priority over others, whereby the ASP could start with “low hanging” areas which can be implemented with little political resistance and without significant changes to the rules of the Court.

Richard Dicker, Director at Human Rights Watch, joined the conversation to express his concerns on ensuring that judicial and prosecutorial independence is preserved throughout the reform of the court. The ASP should not be interfering with the ongoing functions of the judiciary and the prosecutor. It is crucial that the Assembly of State Parties separate the areas that are completely within the independence of the Prosecutor and the judiciary, from the areas that concern the functioning of the Court as an international organization.  Jabarin emphasized the role of civil society in this regard, as they do not play a political role and will not compromise when it comes to such principles.  

The panel was then asked to consider the recommendation made in the report concerning the creation of an Office for the Defense.  In general, the panelists agreed with this recommendation. In fact, a strong and professional defense would be beneficial to the OTP as it would enable the proper conduct of cases, as well as the preservation of the rights of all parties.  Moreover, this would enable the implementation of a code of conduct for the counsel for defense, and would also ensure that defense has appropriate resources, which could in turn reduce delays in the proceedings.

The panel then considered the role that civil society should play in implementing or monitoring the reforms after the implementations of recommendations concerning the culture within the Court, and notably the issues surrounding sexual harassment and bullying. The panelists touched upon the fact that it is actually civil society that had been pushing for the review of the Court for so long, and that now that the review has come, they will continue to engage with its implementation. 

The conversation concluded with comments made by the Spanish Representative to the UN, Maria Bassols Delgado, who guaranteed Spain’s full support of including in the review of the Court.