ASP20 Side Event: Gender Sensitive Judging in International Criminal Courts

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

7 December 2021

Name of the Event: Gender Sensitive Judging in International Criminal Courts (co-hosted by: Australia, the Netherlands, Uganda and Africa Legal Aid (AFLA))

Report by: Lotte Peters, Junior Research Associate PILPG-NL

Highlights: 

• The panelists highlighted the importance of gender-sensitivity training for judges, for instance aiming at facilitating understanding of different power relationships.

• Although much remains to be done, the panelists responded positively to recent developments in international criminal law regarding gender-sensitivity.

• The panelists agreed that actors on all levels of society must cooperate to protect victims of gender-based violence.

Speakers:

• Evelyn A. Ankumah, Executive Director, Africa Legal Aid (AFLA); Coordinator, Gender-Sensitive Judging Series

• Judge María del Socorro Flores Liera, International Criminal Court (ICC)

• Judge Janet Nosworthy, Special Tribunal for Lebanon (STL)

• Judge Florence Mumba, Supreme Court Chamber, Extraordinary Chambers in the Courts of Cambodia (ECCC)

• Judge Althea Violet Alexis-Windsor, International Criminal Court (ICC)

• Judge Fatoumata Dembélé Diarra, Former Judge and First Vice President, International Criminal Court (ICC)

• Gabrielle Louise McIntyre, Chairperson, Women’s Initiatives for Gender Justice; Chairperson, The Truth, Reconciliation and National Unity Commission, Seychelles; Co-Coordinator, Gender-Sensitive Judging Serie

Summary of the Event: 

Ms. Evelyn Ankumah opened this event on gender sensitive judging at international criminal courts by highlighting the importance of a gender-sensitive lens in adjudication, which provides a safe space for women and promotes awareness of gender biases. She expressed that such gender-sensitive adjudication can ensure a more inclusive and impartial international criminal justice system.

The floor was first given to Judge María del Socorro Flores Liera, who spoke about the interpretation of crimes from a gender perspective. She expressed the need for deep changes from all stakeholders: including prosecutors, practitioners, civil society organizations, states, and judges. Gender balance in the bench is not enough. All judges of international courts and tribunals should be aware of gender sensitivity. She further explained that women and girls are disproportionally affected by international crimes and violence as a tactic of war, and continuously face structural discrimination. According to her, “judges all over the world do not escape social constructions and are not immune to stereotypes.” She therefore highlighted the importance of gender-sensitivity training for judges. However, strengthening gender-sensitive judgement goes beyond the judiciary: it requires commitment from all stakeholders at different levels of society.

The second speaker, Judge Janet Nosworthy, spoke on interpreting crimes. She emphasized the role of judges in their interpretation of legislation, noting it is important to put a human face – a gender face – on the law to achieve justice “with the eye firmly placed on the long-term objective of world peace.” Judges of international courts and tribunals should engage in dialogue on new methodologies that enhance the judicial process and provide better interpretive solutions for contemporary times. Especially a more diverse range of judges enhances the quality of judicial debate. As men and women approach issues differently, a female contribution impacts judicial determination and the outcome. She therefore concluded that judges should look to and learn from the gender-sensitivity movement to improve the process of justice.

The third speaker, Judge Florence Mumba, provided a brief presentation about gender in the context of assessing the credibility of evidence. She first affirmed that assessing the credibility of evidence may be impacted by gender stereotypes. Therefore, evidence should be considered holistically and critically examined to avoid bias. Most importantly, she stressed that content must be the first and primary focus in the assessment of evidence before an international criminal court or tribunal.

The fourth speaker, Judge Althea Violet Alexis-Windsor, highlighted the importance of acknowledging gender-based targeting, especially in post-conflict contexts. She explained that oftentimes there is evidence about gender-based targeting, but fails to be explicitly called gender-based targeting and thus is no longer part of the evidence. However, gender-based targeting is not incidental or opportunistic. Rather, it is purposeful and specific, especially in times of conflict. While during the Nuremberg and Tokyo Trials, rape against women and girls was considered an “inevitable consequence of war,” Judge Alexis-Windsor affirmed that this has changed over the years. ICTY and ICTR cases  revolutionarily decided that war time rape and sexual violence are, in fact, a tool of genocide. The Rome Statute reflects this important development, as sexual violence and gender-based crimes can be prosecuted as crimes against humanity and war crimes. She concludes that these offences should be specifically acknowledged, and not treated as incidental or opportunistic, in order for victims to better deal with the past.

Fifth speaker Judge Fatoumata Dembélé Diarra presented on the principle of complementarity from a gender perspective. She opined that the ASP should review Article 17 of the Rome Statute to include provisions taking into account errors made in prosecuting perpetrators of international crimes. Judge Dembélé Diarra found it regretful there is no solution in cases the Court does not manage to prosecute perpetrators of crimes that have been proven to be committed. She found it imperative to include in the Rome Statute a provision in the case the Court is unable to establish a perpetrator’s responsibility, to account for the women who have endured sexual violence at the hands of those perpetrators.  

The event’s last speaker, Gabrielle Louise McIntyre, reiterated that crimes against women have historically been neglected and minimized. Domestic legal systems are designed for, and by, men. Therefore, McIntyre said, the justice system has both made women invisible and silenced them. However, in line with Judge Alexis-Windsor, she expressed her belief that the Rome Statute represented a shift in this regard. For the first time in international criminal law, the Statute defined gender as a social construct and included a vast array of crimes that are specific to women’s experiences. McIntyre was also positive about recent developments within the ICC regarding gender policy and significant improvements in the prosecution. Nonetheless, she noted that the Court should further improve measures to account for the experiences of women and victims of gender-based crimes. “The solution is not just adding more women to the mix,” she reiterated. Concluding, she shared her appreciation for the other panelists: the deep appreciation of gender that showed throughout their presentations needs to be mainstreamed throughout the Court. 

The side event ended with several questions from attendees. According to Judge del Socorro Flores Liera, gender-sensitivity training of judges should be aimed at facilitating understanding of different power relationships. This should be incorporated in the way judges deliver justice. Judge Alexis-Windsor added that international law does not need to be changed: judges simply have to incorporate gender-sensitive awareness. This movement includes both women and men, with Judge Mumba highlighting that especially men are reluctant to come forward when they have been sexually assaulted. She affirmed that investigating officers and prosecutors should be explicitly trained for this when recording evidence, and most importantly, the international community should encourage victims of sexual assault to come forward. Judge Alexis-Windsor agreed: all sections of society should work together to ensure that victims are not revictimized upon return to their community after having testified as a witness. Judge Mumba acknowledged that cultural differences play a big role in the reluctance of victims of sexual assault to come forward. She highlighted that civil society organizations are able to support judicial systems to deal with these cultural differences and deep psychological impact. Indeed, Judge del Socorro Flores Liera agreed that all actors on all levels of society are required, both for the protection of victims of gender-based violence, and for gender-sensitization in adjudication.

ASP20 Side Event: Benchmarking in International Criminal Justice: Feasibility or Fiction?

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

7 December 2021

Name of the Event: Benchmarking in International Criminal Justice: Feasibility or Fiction? (co-hosted by: Germany, International Nuremberg Principles Academy and The Hague Institute for the Innovation of Law)

Report by: Ana Luz Manzano Ortiz, Junior Research Associate, PILPG-NL

Highlights: 

• Multidisciplinary experts on international criminal law agreed that measuring the effectiveness of the ICC is possible and necessary.

• The President of the Special Tribunal for Lebanon called for the creation of a culture of accountability for international criminal courts.

• A pioneer project by the CBF of the ICC has the promise of providing predictability measurements about the work of the court.

Speakers:

• Dr. Sam Muller, CEO of The Hague Institute for Innovation of Law (HiiL)

• Klaus Rackwitz, Director of the International Nuremberg Principles Academy

• Judge Ivana Hrdličková, President of the Special Tribunal for Lebanon

• Carolina María Fernández Opazo, Vice-Chairperson of the Committee on Budget and Finance of the International Criminal Court

• Dr. Marieke Wierda, transitional justice expert

• Dr. Juan Carlos Botero, Executive Director of the World Justice Project

Summary of the Event: 

This event centered around the question of measuring the work of international and regional criminal courts. The speakers brought together their expertise to provide different perspectives on the challenges and opportunities of monitoring the effectiveness of the system of international criminal justice.

The panel began with the intervention by German Ambassador Dr. Cyrill Nunn, who delivered an opening speech on the importance of bringing justice to victims of crimes against humanity (CAH). He reminded the panel that the promise that no one should go unpunished is one of the most important responsibilities of the international community, and that where domestic courts have universal jurisdiction, they act on behalf of this international community. 

Next, Dr. Sam Muller presented the work of The Hague Institute for Innovation of Law (HiiL) as a project that aims to measure the quality of justice people receive by international organizations. He shared that the project began as a way of measuring the success of the ICC, to defend the Court, and fight back against criticism. Dr. Muller emphasized that there is a global trend towards measuring instruments, and measuring justice is crucial.

For this purpose, HiiL works with experts on the rule of law and on the rights of victims, as well as experts from international criminal courts. These experts look at the question of international criminal justice from a broad perspective, focusing on several different measures and responses toCAH, and not solely focusing on international criminal courts as individual institutions. 

After that, Dr. Marieke Wierda, a transitional justice expert, shared her experience working with several international criminal law institutions, such as the International Criminal Tribunal for the former Yugoslavia. Dr. Wierda shared that there is a tremendous need to understand the effectiveness and the impact of measuring our work in general, and shared her perspective about some of the reasons why this has not been done extensively in the area of international criminal justice institutions.

On one hand, Dr. Wierda shared that the international criminal justice project as a whole has a very strong normative underpinning, which has limited the participation of other disciplines, such as sociology, politology, and anthropology, so there is a knowledge gap that needs to be filled.

On the other hand, Dr. Wierda opined  that there is a struggle with defining the goals of international criminal justice, and the result of this is that there is no consensus on how to best approach these goals through an effective methodology.

Following, Dr. Juan Carlos Botero presented his views on the benchmarking in international criminal justice. According to him, it is a hard reality that atrocities are very likely to keep happening, so working towards the maximum effectiveness of the system is crucial. Dr. Botero shared three main points about this. First, without measurement, international justice becomes an impossible task in the long run. Second, the system implies multiple parties with multiple goals that need to be aligned. Third, there is a competition between different ways for addressing mass atrocities, so we need clear standards for each one of the actors involved in the proceedings. 

The Vice-Chairperson of the Committee on Budget and Finance of the International Criminal Court (CBF), Carolina Maria Fernandez Opazo, proceeded to share her views on the need for strong institutions that effectively track the work of international courts. She argued that predictability of the ICC is crucial to protect its sustainability, a lesson learned from past experience. 

The concern that measurement could interfere with judicial independence is relevant, Fernandez Opazo explained, but when it is done properly it cannot be misused. She shared that the CBF has pioneered a project of performance indicators that has been tested on the appeals chamber of the ICC and, although the experience is limited, the performance indicators are promising. 

Fernandez Opazo shared that this pioneer project has three components: (1) a comparative activity indicators that would ideally generate a comparison with the other tribunals as in it how much work is being done and will also measure efficiency; (2) a resource use indicator, which would help tribunals to use resources properly and to know how much money is needed; and (3) timeline certainty indicators related to predictability. This way, only the management of the tribunal but also stakeholders, broader civil society, and victims would be informed of expectations concerning the timing of the tribunal.

Lastly, Judge Ivana Hrdličková from the Special Tribunal for Lebanon concluded that the ICC should be the central point of this exercise of benchmarking international criminal justice, as it is a huge investment for the international community and in many ways the pinnacle of the international criminal justice system.

ASP20 Side Event: The Role of Parliamentarians in Promoting the Universality of the Rome Statute: The State of Play in Today’s ICC

20th SESSION OF THE ASSEMBLY OF STATES PARTIES

7 December 2021

Name of the Event: The Role of Parliamentarians in Promoting the Universality of the Rome Statute: The State of Play in Today’s ICC (co-hosted by the Netherlands, the Republic of Korea and the Parliamentarians for Global Action)

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

Highlights:

• ICC President Judge Piotr Hofmański underlined that promoting universal ratification of the Rome Statute is one of his top priorities during his terms as president of the ICC.

• The speakers shared their experiences from the ratification of the Rome Statute in Malaysia, Jamaica, Ukraine, and in neighbouring jurisdictions, discussing the wider implications. 

• Speakers discussed the need to address fake information and propaganda about the ICC, to mitigate the negative influence this can have on the promotion of the universality of the Rome Statute system and the ICC.

• Speakers called upon states to stand up for justice and provide the ICC with the necessary funding to ensure it can fulfil its mandate.

Speakers: 

• Dr. David Donat Cattin, Secretary General of Parliamentarians for Global Action

• H.E. Henk Cor van der Kwast, Permanent Representative of the Netherlands to the Organization for the Prohibition of Chemical Weapons and the International Criminal Court

• H.E. Yeondoo Jeong, Ambassador of the Republic of Korea to the Netherlands.

• H.E. Piotr Hofmański, ICC President

• Mr. Fabio Massimo Castaldo, MEP (Italy), Vice-President of the European Parliament

• Hon. Kasthuri Patto, MP, PGA Board Member

• Ms. Marina Bardyna, MP, Deputy-Chair, Committee on Foreign Policy and Inter-Parliamentary CooperationPresident of the International Criminal Court

• Dr. Angela Brown Burke, MP, Chairwoman of People’s National Party

• Ms. Oleksandra Matviychuk, Chairwoman of the Center for Civil Liberties (Ukraine)

Summary of the Event:

Dr. David Donat Cattin opened the event and gave the floor to the hosts of the event for their opening remarks: H.E. Henk Cor van der Kwast, Permanent Representative of the Netherlands to the Organization for the Prohibition of Chemical Weapons and the International Criminal Court, and H.E. Yeondoo Jeong, Ambassador of the Republic of Korea to the Netherlands.

H.E. Henk Cor van der Kwast commended Parliamentarians for Global Action (PGA) for their unrelenting efforts to promote multilateralism, human rights, and the rule of law. He emphasised that the universal ratification of the Rome Statute is key. In this regard, he expressed the need to encourage non-states parties to join the mission and standards of the ICC. He noted that only together in a coalition of states, parliaments, civil society, and all other stakeholders this can be achieved. H.E. Yeondoo Jeong, spoke afterwards, referring to the joint efforts of the governments of Korea and the Netherlands in promoting universality. He explained that Korea is actively involved in promoting the wider ratification of the Rome Statute by states, to fight impunity and deter the gravest crimes under international law. He emphasised, once more, that universality of the Rome Statute system can only be achieved once more states decide to ratify or accede to the treaty. He concluded by encouraging any country that may have doubts about joining the ICC, to ask the Netherlands or Korea for support, because they are ready to provide it. 

Next, keynote speaker Judge Piotr Hofmański, after thanking the PGA and the governments of Netherlands and Korea for convening this discussion, noted that promoting universal ratification of the Rome Statute is one of his top priorities as president of the ICC. In explaining why universality matters so much, he referred to the ICC’s mandate to fight impunity for the gravest crimes under international law, emphasizing that “this is a mandate that matters to all of humanity.” As the ratification of the Rome Statute strengthens the “rule of law domestically, as well as, internationally,” Hofmanski explained that “joining the ICC means reducing space for impunity at home and everywhere else in the world.” Therefore, the ratification of the Rome Statute ought to be in the national interest of every state, whilst simultaneously being an act that benefits humanity as a whole. To conclude, he underlined that attention should be paid to “the need for all states parties to implement the Rome Statute in their national laws, if they have not already done so.”

Hon. Kasthuri Patto, MP and PGA Board Member, shared experiences of Malaysia’s accession to the Rome Statute. She noted that Malaysia was the first, and hopefully last country, that deposited the accession instrument and subsequently withdrew it. For two decades, there was a vacuum of discussion on the ratification of the Rome Statute in Malaysia. In such circumstances, the spread of false information on social media represented a challenge faced by lawmakers and political parties. The spread of false information includes statements, such as, that the King will be ‘hauled to court’. To mitigate misinformation, she suggested that, in 2022, efforts can be made to steer the conversation towards discussing the benefits and importance of acceding to the Rome Statute. Ultimately, she emphasized, the Rome Statute does not conflict with Malaysia’s constitution.

The next speaker, Dr. Angela Brown Burke, MP, Chairwoman of People’s National Party, emphasized that the international community and states must cooperate to ensure that the most serious crimes are not ignored. She listed two main requirements for Jamaica to ratify the Rome Statute: political will and consolidation of national leader frameworks. Since 2002, the PGA has been working with parliamentarians from Jamaica towards the ratification of the Rome Statute and to counter the negative influence of neighboring countries, such as the USA, in this process. With ratification of a treaty taking place through executive decisions of the Cabinet in Jamaica, Dr. Angela Brown Burke has encouraged members of parliament to facilitate this step, and will continue such efforts in collaboration with the PGA. 

In her welcoming remarks, Ms. Marina Bardyna, MP, Deputy-Chair, Committee on Foreign Policy and Inter-Parliamentary Cooperation, expressed gratitude for the recognition of ongoing events in Ukraine, as mentioned by Dr. David Donat Cattin. She further explained that Ukraine is still in the process of ratifying the Rome Statute. The constitutional court in Ukraine declared the Rome Statute incompatible with the Ukrainian Constitution, resulting in considerable delay of ratification. Temporary occupation of certain territories in Ukraine by Russia have further hampered  ratification of the Rome Statute. To expedite the process of ratification, taking into account the difficulties of amending the constitution, Ukraine has recognized the temporary jurisdiction of the ICC twice, in 2013 and 2015 respectively. Despite the numerous obstacles currently experienced in the ratification process, Ms. Marina Bardyna is convinced that ratification of Rome Statute will allow it to employ mechanisms to achieve international justice.

Dr. David chimed in by emphasizing the need to counter the fake news and propaganda that joining the ICC would give Ukraine a disadvantage in relation to Russia, and perhaps that this effort could be made in February.  

Ms. Oleksandra Matviychuk, Chairwoman of the Center for Civil Liberties (Ukraine) first mentioned that Ukraine celebrated the anniversary of the Revolution of Dignity the previous week. She discussed events that have taken place since 2013, before moving to elaborate on former ICC Prosecutor, Fatou Bensouda’s announcement of the conclusion of the preliminary examination of the situation in Ukraine in December 2020. Due to a number of factors, including budgetary constraints, the authorization of the opening of an investigation into the situation in Ukraine has been postponed for a year already. As such delays contradict effective justice, she suggested three recommendations. Firstly, she called on the Assembly of States Parties to adopt a budget that accommodates the Office of the Prosecutor with the resources to open an investigation, as well as to deliver effective justice to victims. Second, she called on the ICC Prosecutor to request authorization to open an investigation. Third, she called on the international community to make consolidated efforts to pressure Ukrainian officials, particularly the president, to ratify the Rome Statute and to immediately sign the Draft International Humanitarian Law Implementation Bill no. 2689.

Dr. David Donat Cattin responded by noting the independence and impartiality of the ICC Prosecutor in the conduct of investigations. He further emphasized the need to ensure that adequate funding is available to the ICC to ensure that it can deliver justice. Following this, Henk Cor van der Kwast thanked all speakers for the valuable insights into their respective situations. Like Dr. David Donat Cattin, he underlined the need for states to provide the ICC with the required budget, especially in light of the experiences shared during this event.

Mr. Fabio Massimo Castaldo, MEP (Italy), Vice-President of the European Parliament, shared his thoughts through a pre-recorded video in which he asked “how can we protect any democratic society when the most grave crimes remain unpunished, fueling a culture of impunity.” He emphasized that full implementation of the Rome Statute includes complementarity and provisions on state cooperation. Furthermore, he noted that the European Parliament is ready to make use of every possible avenue and opportunity for political dialogue to advance the ratification of the Rome Statute. Mr. Fabio Massimo Castaldo highlighted the importance of global campaigns by civil societies against impunity, explaining that these are essential to generate political endorsement and mobilization of support for the Rome Statute, and for states affected by human rights violations and abuses of power. He stressed the importance of the role of organizations, such as PGA, in the promotion of the universality of the Rome Statute. Concluding, he encouraged all 27 EU members who are States Parties to work together to pressure the European Commission to resume its direct support to civil society to achieve universality.

Participants and speakers discussed the utility and importance of engaging media in efforts to inform the public about the ICC and the Rome Statute, and the implications of a lack of information. Dr. Anegla Brown underlined the importance of bringing abstract discussions relating to international obligations of states to the general public through engaging them locally in the conversation, among others. Dr. David Donat Cattin concluded by stating that “we need to convey the message that the national interest to join [the ICC] equates to the interest of humanity to protect civilians and other vulnerable persons against crimes against humanity, genocide, war crimes and the crime of aggression.”

ASP20 Side Event: Climate Crime at the International Criminal Court

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

6 December 2021

Name of the Event: Climate Crime at the International Criminal Court (Hosted by: Republic of Vanuatu) 

Report by: Ana Luz Manzano, Junior Research Associate, PILPG-NL

Highlights: 

• 2020 was the most dangerous year on record for environmental activists, with 277 lethal attacks. 

• In October 2021, as part of the campaign for the inclusion of the crime of ecocide in the Rome Statute, ThePlanetVs submitted a case to the ICC concerning the mass deforestation of the Amazonian forest.

• Panelists called for action to present requests under Article 16 of the Rome Statute for climate crimes.

Speakers: 

• Lina Torres, Director of Projects and Strategy with Movilizatorio 

• Seema Joshi, Director of Campaigns with Global Witness 

• Alison Cole, Indigenous Law, Human Rights & Environment Consultant with Students for Climate Solutions 

• Maud Sarlieve, Legal Consultant with ThePlanetVs

Summary of the Event:

The first of two ASP side events on Climate Crime at the ICC hosted by Vanuatu was moderated by Alison Cole, an international crimes advocate with Students for Climate Solutions. She, along with the three other panelists, highlighted some of the ongoing global efforts to fight climate change through strategic litigation at international courts.

The first speaker, Lina Torres, shared details on the Guardians of the Forest Campaign by Movilizatorio. Movilizatorio, a citizen engagement and social innovation hub with offices in Mexico, Colombia, and Argentina, works with collective leadership as an engine for social change with the use of technology tools. Their aim is to promote the agendas of underrepresented stakeholders within the democracies in the Latin American region. With an alliance of indigenous and local communities, ignited after the 2016 Paris Accords, the Guardians of the Forest Campaign strives for the mobilization of public opinion to understand the critical role of indigenous and local communities in the prevention and the fight against climate change.

Torres presented a series of challenges, as identified by the hub, that indigenous leaders and local communities from around the world share in their fight against climate change. First, the killing and persecution of environmental defenders. Second, the demand for the right of indigenous and local communities to be informed with regards to projects with an environmental impact. Third, the fight for land rights recognition. Fourth, the request for traditional knowledge to be part of climate change policies. Lastly, the right to seek direct access to climate funding. 

The campaign focuses mainly on the prosecution of killings of environmental activists. In fact, there has been an increase in climate advocates deaths: from 2017-2020, 327 environmental leaders were murdered worldwide, with 69% of them being indigenous or local leaders. However, according to Torres, the convergence of illegal and state actors in the attacking of environmental leaders makes accountability especially difficult. Ultimately, indigenous and local communities “serve as human shields of their territories”. Torres concluded her intervention by reflecting on attacks of several activists, including Bertha Cáceres, who was murdered in Honduras, and Ari Uru-Eu-Wau-Wau, who was murdered in Brazil. 

Next, Seema Joshi presented the case of the liability of private actors in environmental impacts. As the director of campaigns at Global Witness, she campaigns for the investigation and exposure of abuses of power that are driving the climate breakdown. She considered the accountability gap present in the environmental crisis and explained that, according to evidence, the climate crisis intensifies violence against those protecting our planet. In 2020, 227 lethal attacks were reported against environmental activists, making it the most dangerous year to record, all of them taking place in the Global South. 

A disproportionate number of attacks are against indigenous people. Although these communities make up only 5% of the world’s population, a third of the attacks against environmental activists are against indigenous people. Global Witness calls for due diligence regulations for companies, especially for large brands of international mining. Joshi emphasised that the absence of precedents in climate crimes should not deter the use of litigation to fight for international environmental justice.

The next panelist, Maud Sarlieve, spoke about the case that ThePlanetVs presented to the ICC in October 2021 on the mass deforestation of the Amazonian forest conducted by Brazil’s president. Sarlieve recognized that this case may not be admissible, but noted it may bring to light the current limitations of the Rome Statute in targeting climate crimes. She proposed that the Rome Statute, as an anthropocentric treaty, is concerned with the impact that attacks have on civilian populations. Therefore, the mass deforestation of the largest tropical forest of the world should be analyzed in function of the impact it could have on the local and global population.

Moderator Alison Cole concluded by referring to the Ecocide Campaign. With the use of a creative interpretation of the Rome Statute and Article 15 submissions, an amendment to the Rome Statute could be an important move towards environmental justice.

ASP20 Side Event: Survivors’ Pathways to Accountability: Legal Avenues for South Sudanese Survivors of Conflict-Related Sexual Violence

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

6 December 2021

Name of the Event: Survivors’ Pathways to Accountability: Legal Avenues for South Sudanese Survivors of Conflict-Related Sexual Violence (Hosted by: Legal Action Worldwide (LAW), The Netherlands)

Report by: Guillermo Ferrer Hernáez, Junior Research Associate PILPG-NL, and Marielotte van Ballegooijen, Research Associate PILPG-NL

Highlights: 

• The panelists called on the South Sudanese Government to further the establishment of the Hybrid Court of South Sudan (HCSS) which has been a contentious issue in South Sudan.

• The panelists compared the road to accountability and justice in South Sudan with the transitional justice process in Uganda.

• The panelists emphasized the need for the victims to participate in trials, allowing their voices to be heard and their testimonies to be shared in order to achieve justice.

Speakers:

• Susan Okalany: Judge, High Court of Uganda & ICC Prosecutor Candidate

• Jackline Nasiwa: Executive Director, Centre for inclusive Governance, Peace and Justice and Senior Peace Fellow, PILPG

• Kenneth Scott: Prosecutor & International Human Rights Lawyer

• Antonia Mulvey: Executive Director, LAW

• Bahia Tahzib-Lie: Human Rights Ambassador, Ministry of Foreign Affairs, The Netherlands

• Jehanne Henry: Moderator of the event

Summary of the Event:

The first speaker, Bahia Tahzib-Lie, Human Rights Ambassador at the Ministry of Foreign Affairs of The Netherlands, opened the event by highlighting that victims of conflict-related sexual violence do not feel that perpetrators are held accountable for their crimes. This is a pattern that most human rights organizations find when interviewing victims. The victims feel that the perpetrators will never be prosecuted under state's authorities considering the Government’s unwillingness to prosecute. Tahzib-Lie highlighted that victims in South Sudan are demanding their right to justice and that this process needs to start with providing adequate justice reparations in order to achieve accountability. Tahzib-Lie emphasized that certain steps are being made in the right direction, as the Netherlands, in particular, supports this transitional justice process in South Sudan. However, there are still limitations as South Sudan unwillingness, and potentially inability, to start investigations provide for an obstacle to the process.

The second speaker Jackline Nasiwa, PILPG Senior Peace Fellow and Executive Director at Centre for inclusive Governance, Peace and Justice, contextualized the reality of victims of conflict-related sexual violence by pointing out the presence of violence in major areas in South Sudan. She highlighted three reasons why victims may not be willing to speak out. The first is that many of the survivors have other major concerns related to their basic necessities, such as their livelihood, health, or even being able to eat. Nasiwa provided examples of witnesses who had physical injuries and/or suffered mental trauma which should be addressed first before having them participate in trials.

The second reason, Nasiwa discussed, is that some of the victims might feel reluctant to talk because there is still intercommunal violence. Considering that there is not enough protection for the victims to speak to authorities or courts, victims may not feel comfortable sharing their testimonies. This safety issue is also caused by the committees that recollect victim testimonies who are made up of politicians or leaders that were part of the conflict. These figures might claim that victims advocate for a political reason.

The third reason Nasiwa mentioned is that survivors are not mentally prepared to do so. In order to help victims speak about their experiences, trauma healing training is necessary for those who are conducting investigations in South Sudan.

The third speaker, Susan Okalany, Judge at the High Court of Uganda and ICC Prosecutor candidate, drew some comparisons with the South Sudanese conflict and the Ugandan conflict. She claimed that the lack of comprehensive legal framework in domestic courts hinders the justice process. Several amnesty laws passed by the Ugandan Government make it impossible to prosecute major perpetrators of sexual violence, leaving them impune. In addition, Geneva Conventions could not be applied to the conflict because the conflict cannot be considered an international armed conflict. Despite this, Judge Okalany considered that perpetrators could still be charged with national and international core crimes under customary international law, following judicial cases from Commonwealth tribunals.

Another issue brought by Judge Okalany, and agreed upon by the other panellists, was the victim's participation in trials. Okalany argued that the victims should be able to participate throughout the trial as opposed to when the trial is done and reparations are made. This ensures that the victims participate in their own justice process. In order to ensure their participation from the beginning till the end of the trial, she applied mutatis mutandi the Rules of Procedure and Evidence of the International Criminal Court.

The fourth speaker Antonia Mulvey, Executive director of LAW, reiterated that the victim's participation in justice processes is crucial for the achievement of peace. Documenting the names of victims and the locations where the crimes have been committed needs to take place to ensure there is evidence for future trials. With this, however, she argues that the victims must be offered enough protection if the victims cannot stay anonymous, as this could cause serious problems for their safety. Through Mulvey’s role as an interviewer of victims during the Rohingya crisis, she concluded that most of the victims wanted the ICC to start an investigation. Six months after Mulvey conducted these interviews, ex-ICC Prosecutor Bensouda decided to open an investigation in the Bangladesh border with Myanmar.

The fifth speaker Kenneth Scott, prosecutor and international human rights lawyer, emphasized the necessity to establish a hybrid court in South Sudan. Scott condemned the UNSC unwillingness to refer the case to the ICC as well as South Sudan's refusal to accept the ICC jurisdiction. Scott concluded the discussion by providing that the ICC could claim jurisdiction based on the Bangladesh/Myanmar case considering that most of the South Sudanese survivors were displaced to Uganda, a neighboring state that has ratified the Rome Statute.