18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE
Day 5 (6 December 2019)
Name of the Event: Enhancing Prosecution: A Crucial Factor in Cooperation for Core International Crimes (Side Event co-hosted by Australia, Sweden, the International Center for Transitional Justice (ICTJ), the International Nuremberg Principles Academy).
Overview by: Andreina De Leo, Junior Research Associate PILPG-NL
Main Highlights:
Presentation of the ICTJ’s recent publication on Guiding and Protecting Prosecutors.
Presentation of the International Nuremberg Principles Academy’s efforts towards improving cooperation between civil society actors and judicial mechanisms in the prosecution of core international crimes, including the updated version of the Guidelines for Social Workers and Care Providers in Germany: Refugees as Potential Witnesses of International Crimes.
Discussion on the necessity to find strategies to limit political interference as an impediment to domestic prosecution of core international crimes, and the importance of offering support to victims and civil society in their fight against impunity.
A reminder of the importance not to focus solely on legal issues, but also on finding ways to promote a democratic culture based on the rule of law in post-conflict areas to enable victims to trust the judicial system.
Summary of the Event:
The side event began with two introductory remarks by the Ambassador of Australia to the Netherlands, H.E. Matthew E.K. Neuhaus, and the Ambassador of Sweden to the Netherlands, H.E. Annika Markovic. The former started by recalling the preamble to the Rome Statute and the link it draws between the effective prosecution of serious international crimes and the enhancement of cooperation at the national and international level. The latter, on her part, stressed the increasingly difficult challenges posed by the attempt to ensure accountability in transitional contexts, in particular when it is hard for prosecutors to access the territory and gather evidence.
Dr. Anna Myriam Roccatello, Deputy Executive Director and Director of Programs at the International Center for Transitional Justice (ICTJ), opened the panel. She introduced the panelists and the issues to discuss during the event, namely the challenges to a fair and effective prosecution due to political pressures and the necessity to strengthen the role of civil society and other institutional organizations to advance complementarity.
The first panelist, Mr. Howard Varney, Senior Program Advisor with ICTJ, practicing advocate at the Johannesburg Bar, and former chief investigator for the Sierra Leone Truth and Reconciliation Commission, reflected on the outcomes of the ICTJ’s recent publication Guiding and Protecting Prosecutors: Comparative Overview of Policies, which he co-authored. In particular, he discussed the main challenges posed by domestic prosecution of mass atrocities. He mentioned, among other things, the lack of guidelines and vulnerability faced by prosecutors in areas such as Sri Lanka, South Africa, and Kenia, where the duty to investigate, prosecute and punish is limited by a lack of evidence, resources, skills, and issues concerning safety and security. With regard to the latter, he explained that in situations characterized by charged political circumstances, prosecution is made difficult by political interference and intimidation due to the fact that the individuals who committed human rights violations can belong to powerful elites, such as the military or the government, which can make it unsafe for a prosecutor. Another factor to take into account is that there are always competing interests at stake with regard to the decision to invest money and resources on either prosecution or the reconstruction of the welfare system in post-conflict situations. Mr. Varney concluded his intervention by underlining that strategies should be implemented to adopt domestic laws protecting prosecutors, as well as enhancing transparency with regard to the legal framework regulating the prosecution of human rights violations arising from conflicts. However, he stressed that the law cannot resolve all problems since the major challenge in these contexts is the way in which prosecutors are chosen and appointed, which is ultimately a political choice.
The second panelist, Dr. Iván Velásquez Gómez, Colombian jurist and former Commissioner of the International Commission Against Impunity in Guatemala, focused on the situation in Colombia and Guatemala. In particular, he pointed out the challenges posed by the lack of trust in democracy as a system of government and the consequent disenchantment in the judicial system as a barrier to the effective prosecution of international crimes at the domestic level. Indeed, he stressed that if the population believes that some people are above the law, there is no public participation in the democratic process and consequently victims of human rights violations would not be inclined in testifying in criminal proceedings involving the perpetrators of international crimes. As a consequence, he underlined the necessity of strengthening transparency and fairness of the judicial system before concentrating efforts on the prosecution. He concluded his intervention by suggesting a complementarity approach with regard to the prosecution of international crimes in Latin America based on mixed systems, in which international institutions would guide and support domestic prosecutors. He added the importance of supporting civic movements of civil society and independent press.
Finally, Dr. Viviane Dittrich, Deputy Director of the International Nuremberg Principles Academy, stressed the importance of the fight against impunity in a historical period characterized by an increasing backlash against international and national courts and tribunals. Indeed, she stressed that international courts do not operate in isolation and, therefore, it is necessary to take into account the political environment in which they work. In this regard, the interplay between capacity and political will is vital as political interference, either real or perceived, can be detrimental to the effective prosecution of international crimes. After this introductory remark, she focused on three strategies undertaken by the Nuremberg Academy to promote international criminal law and the prosecution of international crimes and human rights violations. First, she stressed the value of cooperation between civil society actors and judicial mechanisms as lack of cooperation among actors involved can be a major bar to effective prosecution. In this regard, she mentioned that the Nuremberg Academy specifically works on enhancing cooperation between these stakeholders with regard to the prosecution of conflict-related sexual and gender-based violence. Second, she reflected on the fundamental importance of exchange of information regarding international crimes and the principle of universal jurisdiction to enhance domestic prosecution of international crimes. In particular, she focused on a project undertaken by the Nuremberg Academy: “Refugees as potential witnesses of international crimes”, which aimed at drafting guidelines for social workers and care providers working with refugees in Germany on the international obligations to prosecute and punish international crimes, since refugees fleeing persecution are likely to have witnessed such crimes and posses vital information. The updated version of the guidelines in English can be found here. Finally, she highlighted the significance of standard setting, in particular with regard to the collection and use of digital evidence in the proceedings, as well as the recourse of private investigation in international criminal justice.
The event concluded with a debate on the necessity of promoting a change of culture in certain countries, in which prosecutors are seen as part of the system.