The Question of Deferral within the ICC’s Philippines Investigation

By: Guillermo Ferrer, Junior Research Associate, PILPG-NL

On November 18, 2021, Prosecutor Karim A.A. Khan notified the ICC Pre-Trial Chamber I that the Philippines requested a deferral of the Prosecution’s investigation into alleged crimes against humanity committed during the “War on Drugs” campaign employed by Filipino authorities. 

The Philippines requested to deal with the investigation and prosecution of these cases at a national level. Therefore, the ICC suspended the investigation process in accordance with Article 18(2) of the Rome Statute, and in observance of the principle of complementarity. The Philippines now needs to inform the Office of the Prosecutor (OTP) how it will carry out these investigations. If it fails to do so, the OTP can reopen the ICC's investigations.

This blog will look at the Philippines’ request for deferral and analyze how the OTP might respond to it in the light of the principle of complementarity, the Rome Statute, and the Afghan precedent.

The War on Drugs 

In 2016, the Philippines, under the administration of President Duterte, introduced a "War on Drugs" policy to fight the national methamphetamine addiction crisis. This campaign has resulted in almost 8.000 civilian deaths, including among the most vulnerable sectors of the Philippine population, such as children. Children's rights advocates claim that 101 children were extrajudicially executed or killed as bystanders during anti-drug operations from mid-2016 to 2018.

Civil society organizations claim that most crimes have been carried out by Philippine National Police and groups of mercenaries allegedly collaborating with the Filipino government. These cases have been treated as isolated incidents by the Philippine Department of Justice, disregarding the opinions of civil society organizations. In addition, President Duterte argues that these incidents involved only a few police officers who were considered as “bad apples.” 

According to Human Rights Watch, this campaign's psychological and physical damage is great. Filipinos are suffering economic hardship because of the death of their relatives that used to support the family economy. Moreover, this situation has worsened poverty and trauma, leading many children to drop out of school or forcing them to work. 

The Effectiveness of the Investigation

Prosecutor Khan, considering the possible ineffectiveness of a domestic investigation, requested additional information from the Filipino government. This includes the production of credible evidence of a certain standard to demonstrate that “concrete and progressive investigative steps have been or are currently being undertaken” to establish the responsibility of individuals for alleged crimes against humanity.

Several NGOs, such as Human Rights Watch, have dismissed the claim that the Philippines' domestic mechanisms will provide justice to the victims, arguing that the Philippine National Police is falsifying evidence to cover the unlawful killings. Moreover, Filipino civil society organizations have expressed concern that the Philippine government, with this referral, will try to hide or destroy evidence and use scapegoats to avoid the apprehension of the real perpetrators. 

The Afghan Case

The ICC has previously dealt with these matters in the case of Afghanistan's request for deferral of the investigation of alleged war crimes and crimes against humanity committed within the state. The Court decided to grant this request and verified if the Afghan government prosecuted the same alleged perpetrators, on which the OTP's investigations would most likely focus.

The Afghan government tried in vain to focus the prosecution only on the low-profile cases, to avoid assessing the responsibility of high-profile politicians. Several issues within this investigation occurred, such as the reluctance of new authorities to investigate, the obstruction of justice, and the concealment of evidence. Prosecutor Khan explained that "there is no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan" and highlighted that the gravity, scale, and continuing nature of alleged crimes demand focus and proper resources from his Office. Therefore, in the end, the OTP reopened the investigation. Prosecutor Khan noted that "On 5 March 2020, the ICC's Appeals Chamber authorized my Office to investigate alleged atrocity crimes committed within the context of the Afghanistan situation since 1 July 2002."

As seen in this case, if investigations drag on for too long, the process of obtaining justice and prosecution might be jeopardized. Consequently, the OTP might need to restart investigations in consideration of the principle of complementarity.

Concluding Remarks

The ICC is currently proceeding to evaluate the information on the Philippines’ national investigation on the commission of these alleged crimes against humanity. This difficult task might start with monitoring the evolution of judicial proceedings at the national level, determining if the measures taken are significant in fighting impunity. If some of the issues seen in the Afghanistan case emerge, the ICC might swiftly reinstate the investigation of crimes against humanity in the Philippines to ensure justice and protect victims and witnesses.

ASP20: PILPG Expert Roundtable: The International Criminal Court 20th Session of the Assembly of States Parties: Key Takeaways from the PILPG Team

20th  SESSION OF THE ASSEMBLY OF STATES PARTIES

17 December 2021

Name of the Event: PILPG Expert Roundtable: The International Criminal Court 20th Session of the Assembly of States Parties: Key Takeaways from the PILPG Team (hosted by the Public International Law & Policy Group (PILPG))

Report by: Guillermo Ferrer Hernáez, Junior Research Associate PILPG-NL

Highlights: 

• The panelists recognized the importance of the work of the International Criminal Court  as well as the challenges the Court faces in fulfilling its mandate.

• The panelists shared several highlights and key-takeaways from the 20th session of the Assembly of States Parties, including the continued implementation of recommendations from the Independent Expert Review Report, the Court’s workplace culture, the election of two deputy prosecutors, cooperation, and the approved budget for 2022. 

• The panelists discussed several topics addressed during side events, such as gender parity, intersectionality, the possibility of inclusion of ecocide and cyberwarfare in the Rome Statute, universality, and election of ICC staff. 

• Read all PILPG reports on the 20th ASP here. 

Speakers:

• Professor Jennifer Trahan, Clinical Professor of Global Affairs at N.Y.U.;

• Dr. Brianne McGonigle Leyh, Associate Professor with the Netherlands Institute of Human Rights, Executive Editor of the Netherlands Quarterly of Human Rights, and Senior Legal Advisor with PILPG;

• Jackline Nasiwa, Founder and National Director at Centre for Inclusive Governance, Peace and Justice (CIGPJ), and Senior Peace Fellow with PILPG;

• Emma Bakkum, Assistant Counsel PILPG, and Lecturer at VU University Amsterdam;

• Owiso Owiso, Lecturer University of Groningen, Doctoral Researcher University of Luxembourg;

• Professor Milena Sterio, Professor of Law at Cleveland State University’s Cleveland-Marshall College of Law, and Managing Director at PILPG

Summary of the Event:

PILPG has actively followed and reported on key decisions and discussions of the 20th session of the Assembly of States Parties (ASP), which concluded on Friday, December 10.  During this roundtable, PILPG team members shared key takeaways from the ASP and discussed current issues relevant to the International Criminal Court (ICC).  Opening the event, moderator Professor Milena Sterio described the role of the ASP as the ICC’s management oversight and legislative body composed of representatives of the States parties which have acceded to the Rome Statute.  This year’s ASP took place in the World Forum in The Hague from 6-11 December.  PILPG attended with a delegation at the World Forum, and followed all events online.  

As the first to share his observations of this year’s ASP, Owiso Owiso expressed his takeaways from the elections that took place, including the election of the new Deputy Prosecutors, members of the Advisory Committee on Nominations (ACN), and the Board of Directors for the Trust Fund for Victims (TFV).  Mr. Owiso spoke about the importance of allocating a sufficient budget to the ICC for 2022.   He recognized the challenges encountered by the ICC in fulfilling its mandate and expectations when working with limited resources.  Mr. Owiso also touched upon cooperation with the Court.

Professor Jennifer Trahan then reflected on the future of the ICC.  The Court’s increased workload, with five trials planned for 2022, has created a challenging situation within the Office of the Prosecutor (OTP).  Professor Trahan noted how the increased workload for the ICC does not align with the budget allocated to it by the states.  Reflecting on the several side events of the ASP, Professor Trahan highlighted the importance of the principle of complementarity, referring to the situations in Colombia and Afghanistan.  Professor Trahan, lastly, touched upon the possibility of including ecocide and cyber-attacks in the Rome Statute.

Next, Emma Bakkum, who attended several plenary meetings in-person at the World Forum, shared some outcomes and decisions reached during this year’s ASP.  She underlined that it was the first ASP with the new Prosecutor Karim Khan and the new ASP President Silvia Fernández de Gurmendi.  She then outlined the key decisions reached at the ASP that will influence the Court’s functioning for the year to come.  Ms. Bakkum particularly highlighted four developments.  First, she noted that the ASP approved a budget of approximately 154 million euro for 2022.  While an increase from this year (by 4.4%), it is lower than the Court asked for and the Committee on Budget and Finance recommended.  Second, she referred to the resolutions adopted concerning cooperation as well as the Independent Expert Review (IER), extending the mandate of the Review Mechanism.  Third, Ms. Bakkum mentioned the election of the two Deputy Prosecutors as an important development.  These elections mean a return to the initial model of the OTP with two deputy prosecutors, and go against the IER recommendation to continue with one Deputy Prosecutor.  Finally, she reflected on the OTP’s decision not to publish and launch the OTP’s Annual Preliminary Examination Activities Report, a noteworthy absence during this year’s ASP. 

Dr. Brianne McGonigle Leyh continued with sharing several cross-cutting issues of this year’s ASP in relation to the IER.  She noted the importance of the Court’s work environment and culture, a principal issue for the ICC and the ASP.  Prosecutor Khan has shown willingness to address the toxic environment and culture of bullying and fear reported by the IER.  This strategy will be part of the OTP’s agenda in ensuring gender equality and gender culture.  She noted that this is an opportunity for civil society actors to work with the OTP, with the Review Mechanism established during last year’s ASP to facilitate and assess the implementation of the IER’s recommendations. 

Mr. Owiso, in response to an inquiry about the Deputy Prosecutors election, underlined that measures need to be taken to ensure gender parity within the ICC.  He emphasized that the Court must reflect on the inclusion of women in all segments of society, including in leadership roles within the ICC, and that the ICC is a global institution and must reflect its local population.  He concluded that the election of the Deputy Prosecutors was a missed opportunity for more gender representation and floated the idea that Prosecutor Khan could have submitted different candidate lists that would be able to enhance gender equality further (for instance by including the same person on both lists).  He added that turnout for the Deputy Prosecutors' election was limited, with some two dozen States Parties failing to participate in the voting.  Moreover, he shared that the Court needs to address taking a new approach to deal with victims of gender violence, being reflective of victim communities.  A gender approach from a legal perspective needs to be put in place to assess gender-based and sexual violence.

Building on this, Dr. McGonigle Leyh noted that, while the ICC has made progress, there is still room for improvement.  Intersectionality perspectives need to be included when dealing with how the Court treats victims and reparations.

Jackline Nasiwa then turned to cooperation, a standing item for discussion at the ASP.  First, she remarked that voluntary agreements are entered into, and that the Court is focused on encouraging States Parties to further strengthen their cooperation with the ICC.  In particular, in important areas, such as victim protection.  States Parties were encouraged to establish a victim’s centered strategy, which focuses on the relocation of victims and cooperation with courts.  Second, Ms. Nasiwa reflected on the issues related to financial investigations - States Parties discussed the need to cooperate in the identification and freezing of assets for further protection of human rights.  Finally, she turned to South Sudan and underlined the importance of the efforts of the Court to encourage South Sudan’s government to establish the Hybrid Court for South Sudan.  

Following these contributions, Professor Trahan shared additional thoughts concerning several issues of importance to the Court, as addressed during side events.  For instance, she noted the importance of the universality of the Rome Statute.  Further, she touched upon the United Nations Security Council (UNSC) vetoes when it comes to referrals to the ICC, underlining that the perpetrators of core international crimes are often not apprehended because of the limitations of the jurisdiction of the ICC.  Under the Rome Statute, if a state has not ratified the Rome Statute, the ICC can have jurisdiction over the citation, if the UNSC refers it to the ICCl.  Nevertheless, the veto power of permanent UNSC members limits this possibility.  In addition, Professor Trahan highlighted issues with the nomination and appointment of judges.  She explained that this is not only an issue for the ICC but also the national courts, and underlined that action needs to be taken.  Professor Trahan took the case of  Switzerland as an example, which has implemented measures to select the best judicial candidates, mitigating risks of nepotism.

Several relevant questions were raised by the roundtable attendees.  For instance, one question touched upon the COVID-19 restrictions that have impacted the organization of the 20th Session of the ASP.  Participation at the World Forum was limited, and all side events were held online.  Ms. Bakkum shared some thoughts on the advantages and disadvantages of this hybrid model.  While it leads to more transparency with plenary meetings broadcasted on YouTube, she noted that the dynamics of discussions and side events were affected by this hybrid model.  Relevant stakeholders might not be able to follow online side events as much, as well as engage with the events.  However, Ms. Bakkum recognized the continued role of the Coalition for the International Criminal Court (CICC) in representing the interests of civil society and in assisting organizations and victim groups to have their voices heard by the ASP.  

A second question related to the performance of Prosecutor Khan in his first months.  In response to this, Mr. Owiso expressed that it might be too early to assess, but that Prosecutor Khan has made favorable prosecutorial decisions.  However, Mr. Owiso regretted that the Court decided not to prosecute several individuals based on the argument of budgetary constraints.  He quoted an earlier statement of Khan, in which he acknowledges the finite resources of the Court, noting that Khan has always been aware of the resource related challenges the Court faces.  On the same point, Professor Trahan added that this situation is frustrating, but that domestic investigations might form an opportunity to hold those individuals accountable. 

This event was organized as part of PILPG’s Thought Leadership Initiative. The Initiative focuses on prominent international law and international affairs topics and organizes monthly expert roundtables to share expertise and reflections from our work on peace negotiations, post-conflict constitution drafting, and war crimes prosecution.

ASP20 Side Event: Complementarity and the ICC: from preliminary examinations (Guinea, Colombia) to investigations (Sudan, Venezuela)

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

15 December 2021

Name of the Event: Complementarity and the ICC: from preliminary examinations (Guinea, Colombia) to investigations (Sudan, Venezuela) (hosted by the International Federation for Human Rights (FIDH))

Report by: Alexandrah Bakker, Research Associate PILPG-NL

Highlights: 

• The Office of the Prosecutor places considerable emphasis on the principle of complementarity.  The ICC cannot pursue all situations or cases, so complementarity is a practical necessity.

• Speakers noted that involvement by the Office of the Prosecutor in situation countries can place pressure on national authorities to pursue genuine accountability, and called for such pressure to be maintained or increased.

Speakers:

• Ms. Angela Mudukuti, International Criminal Justice Lawyer;

• Ms. Delphine Carlens, Head of the International Justice Desk at FIDH;

• Dr. Rod Rastan, Legal Adviser at the ICC Office of the Prosecutor (OTP) and Acting Head of the Preliminary Examinations Section;

• Ms. Jimena Reyes, Americas Director at FIDH;

• Ms. Asmaou Diallo, President of l’Association des victimes de ce massacre, parents et amis (AVIPA);

• Mr. Alpha Amadou DS Bah, Vice President of l’Organisation Guinéenne de défense des droits de l’homme et du citoyen (OGDH);

• Mr. Amir Suliman, Legal Advisor at the African Centre for Justice and Peace Studies

Summary of the Event: 

Opening the event, Ms. Delphine Carlens described FIDH’s work examining the implementation of the principle of complementarity on the ground, including in the situations under discussion at this side event, namely Guinea, Colombia, Sudan, and Venezuela.  The moderator, Ms. Angela Mudukuti, stressed that the application of the principle of complementarity affects not only the work of the Office of the Prosecutor (OTP), but also survivors and their communities.

The first speaker, Dr. Rod Rastan, described the OTP’s approach to complementarity.  He explained that the ICC simultaneously has limited resources and is expected to have universal coverage.  Therefore, it must be selective in the situations and cases it pursues.  At the same time, Dr. Rastan recognized that the ICC, by design, usually becomes involved in states where national authorities have failed or have limited capacity.  This is part of the ICC’s mandate but also puts the focus on the ICC to intervene in a way that is not sustainable.

Dr. Rastan also noted that the expression “positive complementarity,” while used often, has different meanings to different parties, even within the ICC.  He observed that, for the Assembly of States Parties, on the one hand, positive complementarity refers to substantial rule of law assistance accorded between states to support those who are willing but unable to prosecute suspects of international crimes.  On the other hand, the Office of the Prosecutor does not have the resources to provide such extensive assistance to states, and so its understanding of positive complementarity relates to a more limited degree of support.

In the next part of the event, Ms. Mudukuti asked each of the remaining speakers to reflect on complementarity and on the ICC’s involvement in Guinea, Colombia, Sudan, and Venezuela.

Mr. Alpha Amadou DS Bah explained that the ICC’s involvement in Guinea has led to significant advances on the domestic level.  More specifically, the OTP has exerted pressure on the Guinean authorities that have led to both judicial and legislative advances.  For one, a trial is due to open in March 2022 against alleged perpetrators of the massacre of September 28, 2009.  Moreover, Guinean legislators amended their penal code, as a result of OTP pressure, to include torture as a crime against humanity.

Ms. Jimena Reyes reflected on the situation in Colombia, and particularly on the decision by the OTP to close the preliminary examination on this situation. Although the OTP first opened this preliminary examination in 2014, Ms. Reyes considered that its closure was premature, given that the peace agreement and establishment of the Special Jurisdiction for Peace are recent developments and insufficient evidence of a willingness by national authorities to prosecute suspects.  Moreover, she commented that victims felt betrayed by the closure of the preliminary examination, in particular because the activities of the previous Prosecutor, Ms. Fatou Bensouda, indicated that the OTP intended to maintain its involvement.

Mr. Amir Suliman noted that, according to national, regional, and international reports, Sudan is a state in which the authorities are both unable and unwilling to pursue accountability.  He emphasized that the composition of the government, including the presence of members of the military and persons affiliated with former president Omar Al Bashir in the executive, constitutes one of the primary obstacles.   Mr. Suliman further observed that past attempts at positive complementarity, such as the establishment of a Special Court for Darfur and the introduction of international crimes into Sudanese criminal law, have not been followed through.  The Special Court is not in operation and the law is not implemented.  As such, Mr. Suliman commented that for there to be justice on a national level, there needs to be complete legal reform and a meaningful engagement of victims in the process.

Ms. Asmaou Diallo reflected further on the situation in Guinea, and particularly on the massacre of September 28, 2009.  She reiterated Mr. Bah’s observations that the OTP’s presence in Guinea has had a significant positive influence.  She requested that the OTP maintain its presence to ensure that the trial scheduled for March 2022 proceeds under suitable conditions.

Last, Ms. Jimena Reyes took the floor again to consider the situation in Venezuela.  She praised the decision to open an investigation, describing it as an important step towards accountability and noting that this is the first ICC investigation in Latin America.  Ms. Reyes observed that, despite the Memorandum of Understanding signed between Prosecutor Karim Khan and Venezuelan authorities being centred on positive complementarity, FIDH’s analysis shows that Venezuelan prosecutions face many challenges, including interference by the executive, significant violations of due process, and a lack of resources.

Ms. Mudukuti next asked each speaker to note what they would like the ICC to do.  All speakers asked the OTP to continue to exert pressure on national authorities.  Ms. Reyes also asked the OTP to reopen the preliminary examination in Colombia, and to ensure that the signature of the Memorandum of Understanding in Venezuela does not lead to an excessively long investigation.

To conclude the session, Dr. Rastan shared his final thoughts in light of the other speakers’ observations and requests.  In relation to the situation in Colombia, he shared that the key priority is now to sustain the domestic accountability process to ensure that recent developments continue to produce positive results.  He shared Mr. Bah and Ms. Diallo’s view that the OTP’s involvement in Guinea has been positive, and noted that the OTP would like to maintain their engagement, including by sending further missions to Guinea and even organizing a visit by Prosecutor Karim Khan.  In addition, he noted that the signature of the Memorandum of Understanding in Venezuela does not mean that the OTP will stop pursuing its own independent and impartial investigation, but that it wishes to encourage national efforts towards genuine accountability.  Last, he noted that it is particularly important in Sudan that pressure be sustained to obtain the cooperation owed by national authorities to the ICC.

ASP20 Side Event: What is ICC Prosecutor Fatou Bensouda’s Legacy (co-hosted by: International Federation for Human Rights

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

14 December 2021

Name of the Event: What is ICC Prosecutor Fatou Bensouda’s Legacy (co-hosted by: International Federation for Human Rights (FIDH), Women’s Initiatives for Gender Justice (WIGJ), No Peace Without Justice (NPWJ))

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

Highlights: 

• This side event focused on the legacy of the previous International Criminal Court (ICC) Prosecutor, Fatou Bensouda. It also formed the launch of FIDH’s report “International Criminal Court. An Analysis of Prosecutor Bensouda’s Legacy.” 

• The discussion centered around three themes: accountability for sexual and gender-based crimes, preliminary examinations, and outreach to victims, affected communities, and civil society organizations.

• Speakers agreed that Fatou Bensouda left a solid foundation and legacy for the new prosecutor, Karim Khan QC, to build on.

Speakers:

• Raquel Vazquez Llorente, Permanent Representative to the ICC and the Head of Delegation in The Hague, International Federation for Human Rights (FIDH)

• James Stewart, Deputy Prosecutor ICC

• Diane Brown, Senior Legal Advisor at the Special Tribunal for Lebanon 

• Miriam Antadze, ​​Project Coordinator at the Georgian Centre for Psychosocial and Medical Rehabilitation of Torture Victims (GCRT)

• Calixto Ávila Rincón, Lawyer specialized in human rights and public international law 

• Alison Smith, International Criminal Justice Director at No Peace Without Justice (NPWJ)

Summary of the Event: 

Fatou Bensouda’s term as the second ICC Prosecutor ended on 15 June 2021, when she passed the responsibility on to newly elected Prosecutor Karim Khan. FIDH took this moment to conduct a review of the Office of the Prosecutor’s (OTP) work under Bensouda’s term (2012-2021). FIDH’s report “International Criminal Court. An Analysis of Prosecutor Bensouda’s Legacy”, published the morning of this side event, covers three key areas of particular relevance to FIDH’s mandate: accountability for sexual and gender-based crimes, preliminary examinations, and outreach to victims, affected communities, and civil society organizations (CSO). The report compiles three papers published over the course of 2021, which you can separately find here, here, and here. NPWJ and FIDH conducted extensive consultations with stakeholders to inform these reports. 

Raquel Vazquez Llorente opened the side event by introducing FIDH’s report and the three key areas covered in it, after which the floor was opened to the OTP’s Deputy Prosecutor, James Stewart. Mr. Stewart served as Bensouda’s deputy for eight years, allowing him to share during this event a very personal view of her legacy. He expressed his strong support for Karim Khan, as he has begun to reorganize the office inherited from Bensouda. In reflecting on Bensouda’s legacy, Mr. Stewart suggested seven features: integrity, courage, intelligence, consensus, policies, successes, and foundation. He first noted that Bensouda recognized the fine line that the OTP walks between justice and politics, and that Bensouda strongly believed in following the Rome Statute and in impartial, independent, and objective justice (hence integrity). Second, ​​he included courage as Bensouda’s legacy, noting she remained undeterred when intimidated or threatened, for instance by US sanctions. Third and fourth, he noted Bensouda’s intelligence and her wish for consensus on issues, while always being prepared to follow her own view to make decisions. Fifth, Mr. Stewart referred to the OTP policies adopted under Bensouda, which “helped shape attitudes not just on the international level, but domestically too”, noting that these form a lasting part of her legacy. Sixth, he noted Bensouda’s success in court, the product of the OTP’s hard work under her leadership. Lastly, he concluded Bensouda left a solid foundation for the new prosecutor to follow and that “those who come now stand on the shoulders of those who have come before.” The quest for accountability continues, only the torch has been passed to “fresh hands.”

Next, Diane Brown presented the findings of FIDH’s report relating to sexual and gender-based crimes (SGBC). She agreed with Mr. Stewart that Bensouda leaves behind a strong legacy of accomplishments addressing SGBC as well as a solid foundation for Karim Khan to build on. Ms. Brown noted several examples of significant developments under Bensouda, such as the prioritizing of the policy paper on SGBC, 9 of 14 preliminary examinations featured SGBC, the opening of 7 investigations of which 6 included allegations of SGBC, convictions featuring SGBC, and the Al-Hassan case as the first to include gender-based persecution in international law. Challenges remain in establishing the link between the accused and the SGBC of which they are accused (e.g. Ntaganda and Bemba). 

Moving to the third key area, Mariam Antadze discussed outreach to victims, affected communities, and CSOs. She underlined that in relation to the investigation in Georgia, CSOs operated in a vacuum of information relating to the investigation, leaving victims in a vulnerable position which led to mistrust of the ICC amongst victims. She noted that Bensouda’s approach has been a positive step, but that there is room for improvement, including 1) improved early engagement and 2) more in-country presence. She explained that in Georgia, most victims had not heard of the ICC, and of those that had heard of the ICC only 2% had received information through an ICC representative. Acknowledging the confidential nature of information, Antadze suggested that moving forward and building on Bensouda’s legacy, the Court should implement more effective outreach strategies, allowing for better communication with CSOs and victims. She recommended that the new prosecutor should 1) provide detailed information, 2) develop a court-wide strategy, and 3) conduct an in-depth background assessment during preliminary examinations to obtain a cultural and social understanding of the situation in countries to devise an appropriate investigation

Regarding the second key area, preliminary examinations, Calixto Avila discussed the lack of trust in investigations and electronic communications, alongside the security issues relating to digital information transmitted to the OTP. However, on Bensouda’s legacy, he positively noted the OTP’s policy paper on preliminary examinations and that Bensouda has been able to standardize approaches, allowing for a framework of procedures for effective analysis of cases. Concluding, he highlighted remaining challenges with respect to Latin America, using Mexico as an example. He explained that despite the difficult situation the country is experiencing, more information on the situation must be provided. He then moved to Colombia, noting the effective engagement of CSOs with the Court. Mr. Avila expressed his hope that in his time in Office, Karim Khan will publish reports on preliminary examinations to share information with victims and CSO alike.

Following questions regarding the definition of SGBC and Bensouda’s legacy, Diane Brown noted that the Rome Statute defines gender as male and female and does not, perhaps, fully reflect the gender spectrum. Nevertheless, she explained that the definition of SBGC does not impede the ICC’s ability to prosecute SGBC despite the gender. Mainly because of the gender neutral and inclusive formulation of crimes, which refers to persons. Further, Brown pointed to article 21(3) of the Rome Statute, highlighting that the Court needs to interpret the law in line with international human rights law, without distinction on any grounds, including gender. She finally positively noted that Bensouda streamlined SGBC in international criminal law with her policy paper. Nevertheless, the policy paper should continue to be updated, she added, which current prosecutor Karim Khan intends to do.

To conclude the event, Alison Smith emphasized that the report shows the interconnectedness of everything, in particular when it comes to outreach. She noted the critical importance of building on the work done by Bensouda and to develop not just an OTP strategy but an integrated outreach strategy for the Court as a whole. She warmly thanked all panelists for their reflections, and thanked all those who contributed to the report.

ASP20 Side Event: Using digital technology for war crimes documentation and accountability

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

14 December 2021

Name of the Event: Using digital technology for war crimes documentation and accountability (co-hosted by: eyewitness to Atrocities and Truth Hounds)

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

Highlights: 

• eyeWitness is an app developed to document war crimes and other Human Rights violations at a standard admissible at courts.

• In addition to the app, eyeWitness supports its partners through ongoing trainings and continuous feedback.

• Non-governmental organisations, including Truth Hounds, value the eyeWitness app as it increases the evidentiary value of their footage and the security of documenters during field missions based on build-in security features.

Speakers:

• Dr. Kathleen Roberts, Co-Founder and Co-Director of Partners in Justice International;

• Roman Avramenko, Executive Director of Truth Hounds;

• Maria Mingo, Partnership Advisor at eyeWitness to Atrocities;

• Anna Gallina, Analyst at eyeWitness to Atrocities

Summary of the Event: 

The moderator, Dr. Kathleen Roberts, co-founder and co-director of Partners in Justice International, started the event by providing an overview of the increased relevance of digital evidence in jurisdictions worldwide, at both a domestic and international level.  She highlighted that this trend was further accelerated by the spread of social media.  Nonetheless, digital evidence gives rise to specific challenges regarding the verification and reliability of the content and thus their admissibility during judicial proceedings.  Dr. Roberts introduced the eyeWitness app as a tool to assist in countering these challenges by ensuring that evidentiary standards, like the documentation of the chain of custody, are met.  Subsequently she played a short video explaining the functions of eyeWitness.

Dr. Roberts then posed questions to each of the panelists.  First, she turned to Maria Mingo, a partnership advisor at eyeWitness to Atrocities, asking about the organization's partnerships.  Mingo elaborated that initially the app was intended to be used by any individual, which seeks to document human rights violations, but that soon they realized that targeted outreach programs addressing the concerns of potential end users are required.  EyeWitness thus engages in collaborative partnerships with a range of actors, including journalists and non-governmental organizations, interested in recording footage at evidence quality.  These partnerships include providing the app itself, as well as a range of additional support initiatives, such as ongoing trainings on the functions and use of the app to maximize the quality of the evidence collected, legal analysis, and continuous feedback on the recorded footage.  All partnerships are based on a Memorandum of Understanding and the principle of confidentiality. 

Next, Dr. Roberts addressed Roman Avramenko, the executive director of Truth Hounds, a civil society organization, which documents war crimes and crimes against humanity, particularly focusing on eastern Ukraine and Crimea.  He spoke to how the eyeWitness app assists Truth Hounds in its activities.  Truth Hounds undertakes field missions to conflict affected areas to collect witness and victims’ statements, footage recorded by witnesses, copies of relevant documents, as well as pictures and videos recordings of the damages caused by crimes.  The eyeWitness app contributes to this work in two ways: (1) it allows for the corroboration of evidence by recording metadata, such as the location, time, and date of the footage; and (2) it lowers security risks for the documenters at security checkpoints when they are asked to show the content of their phones since the footage recorded with the app is stored in a separate, encrypted folder.

To follow up on this, Dr. Roberts yielded the word back to Mingo to further elaborate on the features the app offers for the reliability of the footage collected.  Mingo pointed out that the app was not developed as a security tool, nonetheless, important security features are built into the app to mitigate risks arising during documentation efforts, as well as to best support their partners.  For instance, a six digit code is required to access the encrypted folder containing the footage and, if the wrong code is entered, the regular picture library of the device is opened.  The reliability of the recorded footage is ensured by features inhibiting their manipulation and the recording of metadata regarding the place, date, and time of collection.  Thus, the chain of custody is recorded in accordance with evidentiary standards.  The manipulation of content is inhibited by the generation of hash values and the requirement to first upload the footage to the encrypted, private eyeWitness server before being able to download it.  The metadata of the images is generated based on multiple sources to ensure accuracy and to account for situations where one of them is not available.  These are cell towers, wifi networks in proximity, and GPs.  An internet connection is not required for the recording of footage or the generation of the metadata, it is only needed for the downloading of the app and uploading of content to the server.  Mingo provided some examples of footage recorded via the app: environmental damage, mass graves, and the destruction of houses.

Next, Dr. Roberts asked Anna Gallina, an analyst at eyeWitness of Atrocities, what the organization does with the recorded footage.  Gallina highlighted that eyeWitness collaborates with a number of partners and that large volumes of footage are uploaded.  Not all evidence recorded is transferable as raw material to relevant prosecutorial authorities, thus eyeWitness works towards making the evidence accessible by categorizing, tagging, and analyzing it before including it in a user-friendly database.  She underlined that any sharing of evidence is premised on the consent of the information provider.  EyeWitness provides tailored support to its partners, including affidavits on the chain of custody, functioning as a link between the partner and judicial mechanisms, and mapping country- and situation-specific accountability avenues.  At times, eyeWitness itself files dossiers and cases based on the footage it received from its partners. 

Avramenko supplemented this by pointing out that his organization uses footage collected with the eyeWitness app to corroborate other evidence collected during field missions.  He noted that Truth Hounds has submitted its evidence to both Ukrainian prosecutors and the International Criminal Court. 

Dr. Roberts then turned to Gallina for an elaboration on the accountability avenues pursued by eyeWitness based on the evidence collected by Truth Hound’s and others in relation to the conflict in Ukraine.  She remarked that eyeWitness has filed five submissions to three different justice mechanisms.  For instance, eyeWitness, in collaboration with other non-governmental organizations, filed a submission to the United Nations Special Rapporteur on the Right to Housing in early 2021, urging the Rapporteur to pursue justice for violations of the right to adequate violations in the Donetsk area, Ukraine.  The submission was supplemented by over 900 photographs of houses damaged or destroyed during the ongoing conflict.  Gallina underlined that any imagery evidence needs to be corroborated with other details and facts and thus eyeWitness conducts thorough open-source investigations before filing submissions.  

In his final comments before the floor was opened to questions, Avramenko reiterated the relevance of the eyeWitness app in mitigating security risks for documenters during field missions in conflict areas.  He cautioned, however, that, albeit field missions are a good way to collect evidence, they are often undertaken days or months after the crimes occurred and thus at times visual evidence has already degraded or has been lost.  He underlined that tools such as the eyeWitness app should be available to activists and civilians who are in a better position to conduct the initial documentation of crimes while they are ongoing or shortly after.  Avramenko urged to increase outreach programs in affected communities to increase accountability.

When the floor was opened to questions, participants asked whether there was a cooperation between non-governmental organizations and Ukrainian prosecutors on the submission of communications to the International Criminal Court.  Avramenko noted that, currently, two tracks are being pursued to ensure accountability for crimes committed in Ukraine – national level, in close cooperation with local prosecutors; and international level, before the International Criminal Court and under the principle of universal jurisdiction.  While Truth Hounds submitted a number of communications to the International Criminal Court, only one regarding attacks on schools and other educational facilities was submitted in cooperation with Ukrainian prosecutors.  Another question pertained to evidentiary standards and admissibility requirements in relation to digital evidence collected with the eyeWitness app.  Gallina noted that, despite digital evidence emerging as a new type of evidence gaining increased relevance in the past 20-30 years, no specialized evidentiary standards are currently codified in law.  Instead jurisprudence is developing the exact application of rules on admissibility to digital evidence.  She added that it would be helpful to provide specialized training to judges, prosecutors, and other relevant actors to increase homogeneity in practice and increase the predictability of evidentiary value attributed to digital content.  Gallina underlined that eyeWitness is not equipped for such activities and they could be undertaken by other non-governmental organizations.  In addressing the final question on how to select the right tool for documentation of human rights abuses, Mingo highlighted that a multitude of such tools are available.  The selection should be guided by the aims and objectives of the documentation efforts, as well as situational demands, such as security.  Mingo underlined that what sets eyeWitness apart from other tools is that it records footage at the standard required before accountability mechanisms, the close cooperation with partners, and the provision of additional support, such as continuous training.