ASP20 Side Event: Moving forward: Enabling a child-centered approach at the ICC and beyond

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

9 December 2021

Name of the Event:  Moving forward: Enabling a child-centered approach at the ICC and beyond (co-hosted by: Argentina, Belgium, Sierra Leone, Office of the Prosecutor, Save the Children, and Justice Rapid Response)

Report by: Claire Kaula, Junior Research Associate PILPG-NL

Highlights: 

• Currently, children are “invisible” in international criminal proceedings even though many children are victims of international crimes.

• Children are capable of taking part in legal proceedings and telling their story.

• Five years after the launch of the Officer of the Prosecutor (OTP) Policy Paper on Children in 2016, the next step for the ICC is to implement the policy.

Speakers:

• Veronique Aubert (Moderator), Special Adviser on Crimes Against and Affecting Children, Save the Children United Kingdom;

• H.E. Roelants de Stappers, Ambassador and Permanent Representative of Belgium to the International Institutions in The Hague;

• H.E. Alhaji Fanday Turay, Ambassador and Permanent Representative for Legal Affairs, Permanent Mission of Sierra Leone to the United Nations (New York);

• Karim Asad Ahmad Khan QC, Prosecutor, International Criminal Court;

• Bassam Khabieh, photographer, “Witness to War: The Children of Syria”;

• Pim Kraan, Chief Executive Officer, Save the Children Netherlands; 

• Justice Miatta Maria Samba, Judge, International Criminal Court;

• Nina Suomalainen, Executive Director, Justice Rapid Response;

• Shyamala Alagendra Khan, Gender and Child Rights Advisor, Independent Investigative Mechanism for Myanmar (IIMM); former Assistant Director of Public Prosecutions of Fiji;

• Dr. Daryn Reicherter, Director, Human Rights in Trauma Mental Health Laboratory;

• H.E. Mario Oyarzábal, Ambassador and Permanent Representative of Argentina to the International Institutions in The Hague

Summary of the Event: 

H.E. Roelants de Stappers of Belgium opened the event by highlighting the fact that many children witness and are victims to atrocity crimes but they are invisible in the courtroom.  He expressed that more needs to be done to ensure that international tribunals remain focused on children, and that policies and best practices related to crimes affecting children  are implemented. 

Following, H.E. Alhaji Fanday Turay of Sierra Leone also emphasized that there are alarming rates of violations against children.  He argued that while the international community recognizes justice and accountability for these crimes, in practice children remain invisible.  He expressed his disappointment that after the launch of the OTP Policy Paper on Children in 2016, the Assembly of States Parties has not further focused on addressing the challenges of investigating and prosecuting international crimes related to children.

Next, Prosecutor Karim Asad Ahmad Khan QC expressed his honor to speak on this “extremely timely and absolutely essential topic.”  He said that focusing on children in prosecuting international crimes is his priority.  He acknowledged the 2016 OTP Policy Paper but said that the next challenge is implementation.  So far in his time in office, he noted that he has moved the Gender and Children P4 to report directly to the two Deputy Prosecutors next year, and he has plans for the Gender and Children Unit to review investigation plans.  He said he also wants to hire two new advisors on gender and children, and believes that the key way to recognize children as rights holders is to have custom approaches for them. 

The event then had a special presentation, exhibiting the images taken by photographer Bassam Khabieh of children in the Syrian War.  Select images can be seen on his website here: https://www.witnessestowar.com.  He expressed how his photographs only capture a few moments and that there are many more memories of the children not captured.

Then the panelists discussed their expertise.  First, Pim Kraan presented the barriers in the accountability of crimes violating children.  These include the attitudes and stereotypes towards children, such as they cannot be credible sources, and the lacking financial funds to build support structures. 

Second, Justice Miatta Maria Samba offered suggestions of how to include children in international court proceedings.  She expressed that if children need to testify in person they should have the opportunity to familiarize themselves with the courtroom before.  However, she thinks a better solution is for children to testify without being involved in formal proceedings and offered multiple ways to do this.  She also expressed the need for expedited trials where children are involved so they can offer testimony before they forget and receive remedies before they are adults. 

Third, Nina Suomalainen expressed the need for experts on children.  She said it is critical to keep a child-focused lens in all investigations, and expressed that crimes against children are not limited to child soldiers.  International criminal crimes against children are a part of many different contexts, she said.  Furthermore, she expressed that children's participation in legal proceedings should not be based on whether their testimony will do well, but we need to think of other creative ways to include children.

Fourth, Shyamala Alagendra Khan shared her experiences of including children in international legal proceedings of the Special Court for Sierra Leone.  She said that the international community cannot know the true impact of crimes against children without listening to them.  One of her main suggestions to the ICC is to implement the expertise and guidelines that domestic legal systems have for children. 

Fifth, Dr. Daryn Reicherter, confirmed what many panelists said that there is a great need for experts to provide psychological support for children in justice mechanisms.  He noted that with such support children are able to and should be included.  He expressed that with expert help and special care there need not be any fear of re-traumatizing children by having them participate in legal proceedings.  He emphasized that children are capable of telling their story and have their voices be heard.

The event closed with H.E. Mario Oyarzábal who expressed the importance of having a child-focused lens for international criminal proceedings, and presented examples of Argentinean domestic child-focused guidelines that the international community could be inspired to implement.

ASP20 Side Event: The Application of the Rome Statute of the International Criminal Court to Cyberwarfare

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

9 December 2021

Name of the Event: The Application of the Rome Statute of the International Criminal Court to Cyberwarfare (co-hosted by: Argentina, Austria, Belgium, Costa Rica, the Czech Republic, Estonia, Liechtenstein, Luxembourg, Portugal, Spain, and Switzerland)

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

Highlights:

• Members of the Council of Advisors (the Council), authors of the Report on the Application of the Rome Statute of the International Criminal Court to Cyberwarfare, discussed the main findings, offering valuable insights on the applicability of the Rome Statute to cyberwarfare.

• The Council is in agreement that, at present, the Rome Statute does not need to be amended to encompass cyber warfare under the crimes listed. 

• To clarify remaining ambiguities relating to the applicability of the Rome Statute to certain cyber warfare, panelists suggested that the Office of the Prosecutor issues a Policy Paper on the matter of cyberwarfare, or perhaps to establish a state-led working group in the ICC addressing cyber warfare.

Speakers:

• Christian Wenaweser, Permanent Representative of Liechtenstein to the United Nations;

• Oona A. Hathaway, Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School;

• Jennifer Trahan, Clinical Professor at NYU's Center for Global Affairs and Director of their Concentration in International Law and Human Rights;

• Charles C. Jalloh, Professor of Law at Florida International University;

• Matt Cross, Office of the Prosecutor at the International Criminal Court (ICC);

Summary of the Event:

Christian Wenaweser, Permanent Representative of Liechtenstein to the UN, opened the side event.  The event was dedicated to discussing the Council of Advisers’ Report on the Application of the Rome Statute of the International Criminal Court to Cyberwarfare.   Wenaweser highlighted the importance of having this conversation in light of the upcoming 20 year anniversary of the Rome Statute.  In emphasizing that “online cyber operations have become an unfortunate and nearly daily occurrence, they do not occur in a law-free domain, but are subject to various bodies of international law, including the Rome Statute”, he underlined that such crimes could be investigated and prosecuted at the International Criminal Court (ICC) without an amendment of the Rome Statute.

Oona A. Hathaway, Council Member, began her comments by emphasizing that the crime of aggression is addressed first in the Report, recognizing its centrality in answering questions on the applicability of crimes to the cyber realm.  Hathaway explained that there were many areas where the Council was in agreement, and other areas where there had not been sufficient development in the law to allow for consensus.  She said that “one clear area of certainty is that the prohibition of the use of force does apply in cyberspace”, explaining that there could be a violation of the crime of aggression.  Council advisors noted that cyber warfare does not fit into the state-centric focus of the act of aggression, however, concluded that article 8bis of the Rome Statute contains a non-exhaustive list, allowing the ICC to find other uses of force that constitute an act of aggression.  Hathaway further elaborated on discussions surrounding the threshold of “manifest violation” under article 2(4) of the UN Charter, underlining that greater clarity is needed on this in the cyber context.

Jennifer Trahan, Council Member, began by repeating that the Council is in agreement that no amendment of the Rome Statute is necessary and that “a severe enough cyber-attack has the potential to fit into each of the crimes”.  She further acknowledged that there are questions as to what  “severe enough” and to reach a “threshold” constitute.  She explained the different forms of cyber-attacks, ranging from attacks committed solely in the cyber realm to attacks that constitute elements of a physical attack.  In answering the question of how genocide could be committed solely through a cyber-attack, Trahan provided an example of an attack committed on the cooling system of a nuclear power plant, which could result in the release of radiation.  After providing in-depth insights on the different elements of cyber-attacks and the findings of the Report, Trahan suggested two ideas moving forward: (1) issuing a policy paper by the Office of the Prosecutor (OTP) on the applicability of cyber-attacks to the Rome Statute, or (2) the OTP assessing questions relating to, for instance, the destruction of data, when discussing the element of gravity under the Statute.  In conclusion, Trahan suggested the ICC increase its expertise on the matter of cyber-attacks, considering the unfortunate possibility that these may take place in the future.

Charles Jalloh, Council Member, began by explaining the significance of the rule of law for the maintenance of international peace and security, pointing to the dramatic progress in technology over the last years.  He noted that, despite the positive progress, this also creates the possibility of malicious cyber operations that could lead to the commission of crimes under the Rome Statute, raising again the question of the threshold for the application of the international criminal law regime.  Jalloh discussed the findings of the Report concerning how, in the view of the Council, the crimes against humanity provision in article 7 of the Rome Statute may apply to cyber warfare.  After providing an insightful and in-depth account of the relevant elements, Jalloh recounted the findings of the Report, whereby the Council concluded that cyber operations could potentially satisfy each of the contextual elements of crimes against humanity.  Nonetheless, he acknowledged that certain challenges remain, for instance, relating to proving intent.  Conclusively, Jalloh suggested the appointment of a Special Advisor on cyber warfare, or a state-led working group in the ICC.  

The last speaker, Matt Cross, from the Office of the Prosecutor, identified three strong themes in the Report.  First, the Report views the Rome Statute providing new insights on how the ICC can remain useful in current matters, such as cyber warfare.  Second, the Report stresses connections between international law more generally and the Rome Statute.  Cross explained that, when discussing cyber conflict, international criminal law “is one aspect of that discussion, but it is a much broader discussion”, emphasizing that other fields of law, such as public international law and humanitarian law, are all evolving to deal with this new challenge together.  In this regard, he said that the Report stresses areas where scholarship has reached some degree of consensus, allowing for reflection on discussions in other areas.  Third, the Report provides food for thought on how the Rome Statute may be adapted to better deal with these new challenges. In discussing article 8 of the Rome Statute relating to cyber conflict in war crimes, Cross explained that, although the Report recognized that conduct in the cyber realm can amount to war crimes, “that does not necessarily mean this is going to happen very often”.  

Wenaweser ended the event by mentioning that 2022 will be an important year to talk about the relevance of the Rome Statute, which has “stood the test of time”, particularly with a focus on its applicability in the cyber realm.

ASP20 Side Event: Justice Must Happen for Gambia

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

9 December 2021

Name of the Event: Justice Must Happen for Gambia (co-hosted by the Republic of Uganda and Africa Legal Aid)

Report by: Pauline Pfaff, Junior Research Associate PILPG-NL

Highlights: 

• The recently released report of the Truth, Reconciliation and Reparations Commission identifies former president Yahya Jammeh and others as perpetrators of grave atrocities and calls for criminal prosecutions.

• Any justice measures adopted should be victim-centered and -led.

• The panelists see the establishment of a hybrid tribunal as the best option to reconcile the various competing needs in The Gambia, including proximity to affected communities, security concerns, and mobilizing national and regional political will.

Speakers:

• Evelyn A. Ankumah, Executive Director of Africa Legal Aid;

• Reed Brody, International Commission of Jurists;

• Fatoumatta Sandeng, spokesperson Jammeh2Justice Campaign;

• Martin Kyere, survivor of the West African Migrant Massacre in The Gambia;

• Toufah Jallow, Gambia #MeToo Movement and founder of Toufah Foundation;

• Salieu Taal, President of the Gambia Bar Association;

• Justice Mbacke Fall, former General Prosecutor of the Extraordinary African Chambers and Prosecutor in the Hissène Habré case;

• Femi Falana, Nigerian constitutional lawyer;

• Adama Dieng, Special Advisor to the Prosecutor of the International Criminal Court

Summary of the Event: 

The moderator, Evelyn Ankumah from Africa Legal Aid, opened the side event with an overview of the most recent developments in The Gambia in relation to accountability for atrocity crimes committed by former head of state Yahya Jammeh and his associates.  On November 25, 2021, the Truth, Reconciliation and Reparations Commission (TRRC) issued its report on the crimes committed during the Jammeh era and recommended the prosecution of those most responsible.  Karim Khan, the prosecutor of the International Criminal Court (ICC), had previously tweeted that “Justice must happen” for The Gambia.  Ankumah further highlighted three fundamental agreements among the panelists: first, that there is a need for accountability; second, that justice should be delivered in a timely manner to victims; and third, that justice should be done at home, meaning within The Gambia, or as close to it as possible, in West Africa.  

The first speaker, Reed Brody from the International Commission of Jurists, played a video which elucidated the history and situation of The Gambia and included various victim statements.  The crimes committed include murder, torture, sexual violence and the forcing of HIV positive individuals to participate in fraudulent medical treatments.  Brody highlighted that the Gambian government is to publish a summary of the TRRC report and to introduce it to the United Nations General Assembly by December 2021.  Moreover, the government has a set timeframe of six months to publish a white paper on the implementation of the TRRC’s recommendations.  

Brody shared that there is a consensus among stakeholders, including victims, scholars, and non-governmental organisations, that a hybrid tribunal for The Gambia would be the most appropriate forum through which to pursue those recommended for prosecution by the TRRC.  He named the Economic Community of West African States (ECOWAS) as the appropriate partner for such a tribunal, as nationals of other African states were also victims of human rights violations during the Jammeh era.  He also presented ECOWAS’s involvement as having the potential to garner regional support, particularly, to persuade Equatorial Guinea to extradite Jammeh.

Next, Fatoumatta Sandeng spoke on behalf of the Jammeh2Justice Campaign to express victims’ perspectives.  She identified five fundamental demands: first, assurance – victims demand assurance that tangible steps towards accountability are taken.  Second, empathy – it is important that people can relate to what victims are going through on a daily basis and understand that traumas are present continuously.  Third, inclusion – victims want to be part of and take the lead in the justice process with the support of other stakeholders.  Fourth, justice to be done close to home to be able to relate and identify with it and achieve greater impact on the ground.  Fifth, she expressed a desire for justice to be done in a timely manner, recognizing that the process cannot take place overnight, but that it must remain an item on the agenda. 

The subsequent speaker, Toufah Jallow, went into greater detail on the modalities of  justice for survivors of sexual violence.  Due to the special characteristics of crimes of sexual violence, she expressed strong support for the use of restorative justice mechanisms.  She underlined the need for a broader societal process to facilitate the recognition of sexual violence and an attitude change to better prevent future crimes.  Further, a more dialogue-based restorative mechanism would lower barriers for survivors to tell their story and receive recognition for their suffering from both the perpetrator and the community.  She highlighted that within The Gambia local processes focused on restorative justice are present which could be centralized and standardized for a national approach to Jammeh’s crimes.

Salieu Taal, president of the Gambia Bar Association, focused in his statement on the possibility of a hybrid tribunal.  He reaffirmed that, no matter its form, any justice process in The Gambia is to be victim-centered.  Based on stakeholder consultations and expert meetings, a hybrid tribunal was identified as the best way to move forward in the specific situation of The Gambia.  Taal highlighted that such a court would be in geographical proximity to the victims and would, first and foremost, be Gambian.  At the same time, it would benefit from international support where Gambian resources and legislation are not capable on their own of prosecuting Jammeh and his associates effectively.  A hybrid court further accommodates for local specificities, such as the need, for security reasons, to try Jammeh outside The Gambia, while remaining in the region.  He noted that the ICC is physically distant, however, should be considered a measure of last resort if other, more regional approaches fail.

Next, Femi Falana cautioned to hold up the momentum created by the TRRC report and pledge of the Gambian government to implement the recommendations fully.  He agreed with Taal that it is not feasible, for political reasons, to try Jammeh within The Gambia and proposed to explore a similar route as taken by Sierra Leone in the Charles Taylor case and move the trial to a neighboring country, potentially Ghana or Nigeria.  He mentioned the establishment of a hybrid court as a viable alternative, either in cooperation with the African Union or ECOWAS.  Moreover, he raised the possibility for The Gambia to introduce the TRRC report to the United Nations Security Council to request the establishment of a special tribunal.

Next Martin Kyere, the only survivor of the West African Migrants Massacre, where 50 Ghanian and other West African migrants were killed by members of Gambian security forces in 2005, underlined the commitment of him and the families of the other victims to pursue justice.  He signaled their readiness to consult their lawyers on approaching other African courts or the ICC to seek justice if the Gambian government fails to implement the TRRC recommendations.

Finally, Adama Dieng, Special Advisor to the Prosecutor of the International Criminal Court, addressed the participants in a pre-recorded video statement and reiterated the stance that impunity is not an option for The Gambia.  Dieng underlined the importance of the principle of universal jurisdiction and the possibility for the ICC to step in if the Gambian authorities prove unwilling or unable to deliver justice. 

Following this statement, Ankumah opened the floor for questions.  Several victims of crimes committed during Jammeh’s rule expressed their support for the views and work of the panelists.  Participant Saramba Kandeh asked the panel how reparations may be incorporated into a hybrid tribunal.  Sandeng responded that extensive outreach programs in local communities will be necessary to explain that reparations are not the sole purpose of criminal proceedings, but justice.  She nonetheless acknowledged that reparation orders should form part of such a court’s mandate.  Jallow further stressed the importance of a parallel restorative justice approach to complement criminal proceedings.

ASP20 Side Event: Specialized Units for Investigating and Prosecuting International Crimes and Crimes of the Past: Efforts for Addressing Impunity for Crimes in Syria

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

8 December 2021

Name of the Event: Specialized Units for Investigating and Prosecuting International Crimes and Crimes of the Past: Efforts for Addressing Impunity for Crimes in Syria (Co-hosted by: International Center for Transitional Justice (ICTJ), France, Germany, the Netherlands)

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

Highlights: 

• There has been an increase in successful accountability efforts through national specialized units. Panelists shared experiences and the positive impact of specialized units for investigating and prosecuting international crimes in Europe, for instance in France and Germany. 

• Nonetheless, many remaining challenges need to be addressed, particularly in relation to the adequate protection of victims and the facilitation of cooperation and information exchange. 

Speakers:

• Anna Myriam Rocatello, Deputy Executive Director and Director of Programs of the International Center for Transitional Justice (ICTJ)

• H.E. Matthew Neuhaus, Ambassador of Australia to the Netherlands

• Howard Varney, Senior Program Advisor ICTJ

• Amelie Bequart, France 

• Ibrahim Al-Kasem, Executive Director of Caesar Families Association 

• Dr. Katarzyna Zduńczyk, Senior Researcher at the Foundation for Human Rights in South Africa

• Carlos Castresana Fernández, Public Prosecutor at the Court of Auditors of Spain

• Alexandra Lily Kather, Legal Advisor at DIGNITY

Summary of the Event: 

Anna Myriam Rocatello opened the event by introducing the latest research conducted by ICTJ (Report “Gearing Up the Fight Against Impunity. Dedicated Investigative and Prosecutorial Capacities” to be published in December 2021), which analyzes several specialized units for the investigation and prosecution of international crimes. ICTJ hopes its research will assist states in the implementation of the complementarity principle and strengthen efforts to investigate and prosecute international crimes. H.E. Matthew Neuhaus expressed his gratitude for the work of ICTJ and for convening this event, outlining that the event focuses on the investigatory phase, the impact on the victims and the accused, and the meaning and challenges of accountability for crimes in Syria. He commended efforts to advance accountability through national jurisdictions, noting that this is a fundamental aspect of the Rome Statute, and in particular referred to the recent landmark trial in Germany. With the support of UNITAD, a German court found a former IS member guilty of genocide against the Yazidi religious minority. According to Neuhaus, this shows “how universal jurisdiction can be leveraged by specialized units to seek accountability for such crimes.’’ He emphasized the importance of continuing work towards accountability, especially in dire situations such as in Syria, and commended the ICTJ and Foundation for Human Rights for their leadership on the issue of seeking accountability through the use of universal jurisdiction. 

Next, the floor was given to the panelists and contributors to the ICTJ report. Howard Varney, Senior Program Advisor ICTJ and co-author of the report, highlighted the importance of producing research on specialized units. He discussed the main findings of the report, explaining that specialized units are effective due to their ability to concentrate and centralize national efforts under one organizational entity, helping facilitate coordination and clear lines of responsibility. Specialized units foster closer cooperation between investigators and prosecutors, and he underlined their abilities in engaging in international cooperation, information exchange, and the implementation of best practices. Turning to specialized units and their role in ensuring accountability for Syria, Varney noted that there are 22 ongoing or completed cases concerning crimes committed in Syria. Whilst most specialized units are still in early stages of development, some emerging best practices can be identified, such as close collaboration with immigration services to help identify suspects, the establishment of units under law or statute rather than executive action, and the importance of signing cooperation agreements with CSOs to clearly delineate responsibilities and to regulate cooperation. Lastly, Varney suggested that regular roundtables should be held with CSOs to enhance the sharing of information and knowledge.

Amelia Becquart, shared experiences from the Central Office to fight Crimes against Humanity, Genocide and War Crimes in France, explaining that the office cooperates with other institutions in several ways. For instance, judges and prosecutors can refer a matter to the Office. Furthermore, she referred to a law from 2015, which introduced informational exchange, allowing prosecutors to be informed about rejected asylum applications and the reasons for their rejection. In relation to international cooperation, Becquart noted that France has positive experiences with mutual legal assistance in relation to Joint Investigation Teams (JIT), thanks to the EU. She also underlined the recent signing of a convention on judicial cooperation between France and the IIIM, allowing for reciprocal information and communication, which had not been possible previously. 

Next, Anna Rocatello welcomed Ibrahim Al-Kasem, Executive Director of Caesar Families, asking him to share his thoughts on progress regarding impunity for crimes committed in Syria, and to elaborate on any advantages or instances that give him hope regarding the situation. Lastly, she also posed the question of what civil society can collectively do to encourage states parties to promote and achieve more specialized units, better cooperation, and ultimately the satisfaction of victims. Al-Kasem thanked everyone for their participation, and ICTJ for its efforts addressing the situation of Syria. Noting that what is happening in Germany shows the fruits of cooperation amongst different units, he commended France and Germany for the issuance of arrest warrants against Ali Mamlouk, a high-ranking official in Syria. Al-Kasem then discussed challenges, such as the number of victims that have suffered in proportion to the ongoing accountability efforts. Further, he emphasized that many specialized units experience difficulty in the collection of evidence, leading to reliance on evidence from victims, which can result in retraumatization if not handled appropriately. He emphasized that victims need to be adequately informed about their role when submitting evidence, and that they also need effective protection, describing examples of victims who have become endangered because they have provided evidence to NGOs, and other bodies, without receiving appropriate protection.

The floor was then given to Katarzyna Zduńczyk, co-author of the report, who elaborated on numerous findings of the research, providing examples of several units ranging from “historical units’’ to “mixed-mandate units.’’ ICTJ’s research has shown that no clear pattern can be identified when it comes to the structure, operation, and composition of specialized units. She made note of the JIT of Germany and France in investigating crimes in Syria as an emblematic example. She also discussed the relationship between CSOs and specialized units, explaining that sometimes this relationship can be established through law.

Alexandra Lily Kather, sharing her practical experiences from the field as a consultant for multiple accountability actors, including civil society organizations (CSOs), noted that we are increasingly seeing the specialization of war crime units, as well CSOs in this line of work, as well as the criticism surrounding this. She stated that we are at a crossroad and should  “take a realistic stock of what this line of work entails’’, and of how the work of CSOs is responding to some of the limitations that war crime units experience, for instance through facilitating contact with witnesses. Kather also noted the significant work of international organizations such as UNITAD, underlining that the German case referred to by H.E. Matthew Neuhaus would not have been possible without UNITAD’s support. 

The last speaker, Carlos Fernández, emphasized the importance of specialized units in relation to the principle of complementarity, as they provide for the willingness and ability to address impunity. After sharing his views and thoughts on the Pinochet case, he explained that when faced with structural impunity, many are interested in preserving situations of impunity. To counter this, he stated, the establishment of a strong coalition, closely connected with the media, is required to initiate change. He concluded by noting the importance of specialized units being operated by experienced professionals in this field.

ASP20 Side Event: Trust Fund for Victims: Implementation of Reparation Awards in the DRC and Mali

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

8 December 2021

Name of the Event: Trust Fund for Victims: Implementation of Reparation Awards in the DRC and Mali (co-hosted by: Australia, Finland, Germany, Ireland, Italy, NL, UK, and the Trust Fund for Victims)

Report by: Claire Kaula, Junior Research Associate PILPG-NL, and Marielotte van Ballegooijen, Research Associate PILPG-NL

Highlights: 

• The Trust Fund for Victims provides an important role to support the implementation of reparations for victims. The Trust Fund for the Victims cannot do what they do without the support of Donor States

• The implementation of reparations in the Katanga, Lubanga, and Ntaganda cases from the Democratic Republic of the Congo are focused on providing  physical, psychological, and socio-economic reparations.

• The implementation of reparations in Al Mahdi case from Mali include memorialization reparations and are conducted with many consultations and community engagement.

Speakers:

• Kevin Kelly; Newly Elected to the Board of Director of the Trust Fund for Victims 

• Päivi Kaukoranta; Ambassador of Finland to The Netherlands

• Franziska Eckelmans; Legal Advisor to the Deputy to the Executive Director at the Trust Fund for Victims

• Henk Cor van der Kwast; Permanent Representative of the Netherlands to the Conference on Disarmament and Disarmament Ambassador

• Matthew Neuhaus; Ambassador of Australia to The Netherlands

• Kizita Frogwe; Program Manager at the Trust Fund for Victims in the DRC

• Tiade Lorenzo; Program Manager for one of the TFV’s Contracting Parties in DRC

• Maman; Program Manager for one of the TFV’s Contracting Parties in Timbuktu

Summary of the Event: 

The event began with remarks by Kevin Kelly, a newly elected member of the Board of Directors (hereinafter the Board) of the Trust Fund for Victims (hereinafter the TFV or the Fund), on the importance of the Fund and that both the assistance mandate and the reparations mandate be equally recognized and supported.  Kelly said that “the new Board of Directors of the Fund has made an early decision to prioritize [the Fund’s] support for this work on reparations for the year ahead” and plans to take a harm based, victim centered approach to reparative justice.

Päivi Kaukoranta, Ambassador of Finland to The Netherlands, presented Finland’s dedication and support to the Fund since its inception.  As announced on Monday, December 6, 2021, during the Channel debate, Finland will be significantly increasing its donations to both the assistance mandate and the reparations mandate with two separate contributions.  Ambassador Kaukoranta presented the importance of reparations by saying that Finland continues “to believe that the greatest achievement and innovation of the Rome Statute was to put victims at its heart”.

Following this contribution by Kaukoranta, Henk Cor van der Kwast, Permanent Representative of the Netherlands to the Conference on Disarmament and Disarmament Ambassador at large, commended the Board and all people who have worked on providing reparations, and emphasized that reparations are a fundamental part of the Rome statute.

Matthew Neuhaus, Ambassador of Australia to The Netherlands, then remarked that Australia is proud to support the Fund and its work.  He also welcomed the new Board member Kevin Kelly. 

Franziska Eckelmans, the legal advisor to the Deputy to the Executive Director at the TFV then gave an overview of the process of implementing reparations.  The Fund is there to complement the reparation awards, but the convicted person is the one liable.  The process can be ordered into three steps.  First, a Chamber orders a reparation.  Second, the Fund prepares a plan to provide reparations, which is approved by the Board and the Chambers.  The approval process takes about a year.  Third, reparation partners are contracted, who then begin outreach and intake of beneficiaries.  When reparations are fully implemented the reparation program is evaluated by a neutral third-party contracted by the Fund.  Throughout this entire process, the Fund is helping to track and support the implementation.

The event followed with an explanation of the implementation of reparations in the Katanga, Lubanga, and Ntaganda cases from the Democratic Republic of the Congo (DRC), and the Al Mahdi case from Mali.  In all cases, the reparation implementations are active except the individual reparations in the Katanga case and the symbolic reparations in the Al Mahdi case.  

Kizita Frogwe, program manager of one of the TFV’s Contracting Parties in the DRC, presented that all cases from the DRC (Katanga, Lubanga, and Ntaganda) have similar interventions because they are focused on the three rehabilitation perspectives namely, physical, psychological, and socio-economic.  Frogwe subsequently gave the floor to project managers and implementing partners to discuss the implementation of repartitions from each case. 

In the Lubanga case, Tiade Lorenzo, a program manager to one of the TFV’s Contracting Parties in DRC, discussed different aspects of the implementation of reparations.  First, the contact and intake process of the victims takes place.  Here, the informed consent of victims and strict adherence to confidentiality is of utmost importance.  Second, the areas of intervention are examined.  This is done through an evaluation of the victims’ on their physical and mental health.  The socio-economic reparations focus on income generation, specifically providing vocational training.  Currently the training is focused on small business and agriculture.  Third, there are challenges in providing reparations.  These are the overall insecurity in the region, and the high mobility of victims which makes it difficult to track and ensure they receive reparations. 

In the Ntaganda case, Frogwe provided an update of the process.  As ordered by the Trial Chamber, Frogwe and her team developed an urgent implementation plan focused on identifying the victims who had the most urgent needs.  This was approved and two partners are currently implementing this plan.  The team is also now working on submitting the draft implementation plan mid-December to receive approval from the Trial Chamber.  After this, they will begin procurement procedures and implementation.

Following the discussion on the DRC reparation implementations, the event followed with an overview of the Al Mahdi case reparation implementations from Mali.

Maman, the project manager in Timbuktu, presented the memorialization reparation implementation and challenges.  To implement the memorialization measure, Maman formed memorialization committees.  Each committee is made up of representatives from the neighborhood chosen by the community.  The committee discusses whether it is appropriate to memorialize the destruction of mosques and if so how to memorialize it.  The challenges they have faced include the resistance of a neighborhood Chief because more mosques had been destroyed that were not included in the ICC charges.  It was also a challenge to include women in the committees because generally the community did not believe women ought to make decisions relating to mosques.  Other challenges the committees have faced are the insecurity of the region and the poor infrastructure on communication connections.  Despite these challenges, the memorialization reparation implementation has been able to move forward with consultations and community engagement.