Side Event – “Listening to victims from Afghanistan - Views of Afghan society on the ICC and the peace process” (hosted by the Transitional Justice Coordination Group – Afghanistan))

Overview by Cleo Meinicke and Elia Cernohlavkova, Research Associates PILPG NL

Highlights:

• After several failed peace process attempts the panelists agree that the inclusion of the victims of the crimes committed during the war in the process is important. 

• The safety of the victim needs to be guaranteed.

The side event on the peace process in Afghanistan was hosted by the Transitional Justice Coordination Group – Afghanistan and is generally based on the ICC  Prosecutor’s requested authorization to open investigation into war crimes and crimes against humanity committed in Afghanistan.  

The event was led by Mark Kersten who is the Deputy Director of the Wayamo Foundation. The participants included Pablo de Greiff, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Marieke Wierda a Dutch lawyer working on a PhD on the Impact of the ICC in Situation Countries, including Afghanistan, Abdul Wadood Pedram working for the Human Rights and Eradication, Hadi Marifat the director of Afghanistan Human Rights and Democracy Organization, and Horia Mosadiq, an Afghan human rights activist, political analyst, and journalist. 

At the beginning of the event a short movie was shown that displayed the effect the war in Afghanistan has on the civil society. The majority of Afghan families suffer from loss and casualties due to the effects of the war. 

The floor was first given to Horia Mosadiq who emphasized that the previous peace-building efforts were often labeled peace processes. The very term of a process however implies for her the inclusion of victims, which is still not the case in Afghanistan. The Afghan President Ashraf Ghani offered the Taliban unconditional peace talks, especially welcomed by the United States, for which he drafted a plan but according to Mosadiq nothing has been done in reality and victims are still not included. On the backdrop of the exclusion of victims, she however points out that there has been positive development in the inclusion of women in peace-building efforts. She pledges for national dialogue, and criticizes the courts for their lack of public outreach. Mosadiq also suggests a new national survey, investigating the crimes committed throughout the war. The last survey was conducted in 2004 hence a new survey is long overdue.

Marieke Wierda followed with pointing out four main challenges the ICC will face when investigating the crimes committed in Afghanistan. First, there is the challenge of pervasive impunity due to the introduction of amnesty laws in 2007 by the parliament to prevent the prosecution of individuals responsible for human rights abuses during the war. Second, because the perpetrators of the crimes are not yet prosecuted and many of them work in high positions in the government, Afghan society sees the perpetrators’ actions as being accepted and legitimized. Third, accountability and transitional justice efforts have been depicted as a Western agenda, which challenges the ICC legitimacy and the United States denying attitude towards the investigation into the Afghan case adds to this. Lastly, Wierda doubts the deterrent effect of the ICC. Questioning an ex-Taliban about the Court’s deterrent effect, he argued that youth are willing to give their life through suicide attacks and the Court does not have any deterrent effect on this. Moreover, the very concept of international justice is not included in the Madrasas, the Islamic curriculum. Wierda suggests that ICC scrutiny should be encouraged to increase accountability in Afghanistan, referring to Uganda and Colombia as successful examples. Furthermore, reparations should have been paid already a long time ago and should be at the top of the agenda as well.  

The UN Special Rapporteur Pablo de Greiff picked up the importance of the inclusion of victims into the peace-building process. He suggests the inclusion of the most affected and the necessity to identify the different groups that need to be represented. He made a reference to the Colombian situation where 17 civilian groups were identified in order to ensure that all of them are represented. 

The statements by the abovementioned panelists formed the main part of the event, followed by opening up the discussion to the audience. One of the comments from the audience came from an Iraqi judge who sat on the bench of the Special Tribunal against Saddam Hussein. He pointed the similarities between the crimes committed in Iraq and the ones discussed in the side event in Afghanistan out. This comparison was very much appreciated by the panelists. 

The main question asked by the audience, among others by a member of Human Rights Watch, concerned the protection of the victim witnesses. Hari Marifat stressed the importance of this question but admitted that not even the mechanisms for victim inclusion have yet been included. He also raised the point that the concept of “security” or “safety” is ambiguous in the context of Afghanistan, where bringing a victim to Kabul for example already poses a higher risk for the victim. Wierda also added the concern that where authorities are weak it is even more difficult to protect witnesses. She argues that at least the “no harm” principle should be applied in those situations. 

Another discussion was sparked by a question concerning the relationship between peace and justice in the Afghan context. The most prevalent factor here are the amnesties granted to perpetrators and whether these are a means to peace or rather justice. De Greiff argued that it would be wrong to say that justice is an obstacle to peace in the case of Afghanistan, because amnesties do not always result in peace. This decision has to be made on a case-to-case basis. He refers to Colombia where the combination of justice and peace was successful. Wadood Pedram added that the Afghan people would support an ICC investigation as the amnesty laws were strongly opposed by the civil society, so they would like to see justice done. 

As a concluding statement Mosadiq stressed that she wishes the cycle of victims becoming perpetrators to be broken by letting justice prevail in Afghanistan. She pleads for a change in the narrative, where it is not that the case that low-key criminals are in prison and those most responsible for the atrocities member of the government in Afghanistan, this sends the wrong message to the civil society.

Side Event – “Drug-trafficking, Public Policy and Crimes Against Humanity- Discussing the situations in Mexico, the Philippines and Colombia

(hosted by Comisión Mexicana de Defensa y Promoción de los Derechos Humanos and International Federation for Human Rights (FIDH))

Overview by Vicki Tien, Research Associate PILPG NL

Highlights:

• This side event focused on the public policy in relation to drug use and drug trafficking and the situations of human rights violations in this context in Colombia, the Philippines, and Mexico. 

• All three countries have seen an increase in violence and impunity for the crimes committed. 

This side event focused on the public policy in relation to drug use and drug trafficking, as well as the commission of serious crimes in this context in Colombia, the Philippines, and Mexico. Speaker Jimena Reyes (International Federation for Human Rights), Speaker Ray Paul Santiago (Ateneo University School of law), Speaker Olga Guzman (Mexican Commission for the Defense and Promotion of Human Rights), and Speaker Juan Carlos Ospina (Commission Colombiana de Juristas) discussed public policy their countries.  

Juan Carlos Ospina first discussed the situation in Colombia. He noted that 8.4 million people have suffered from the armed conflict in Colombia, while several others have been victims of forced disappearance. However, there is a problem with inefficient structures to address the consequences of the armed conflicts in the country, he continued. Mr. Carlos said that the violations of human rights in Colombia are not only in the context of drug trafficking, but also in the case of gas issues.Mr. Carlos argued that the fight against drug trafficking by the government of Colombia has contributed to the commission of such crimes. These crimes against humanity, however, have been perpetrated by all the actors involved in the conflict. The Peace Agreement in Colombia has incorporated and acknowledged the need to address drug-trafficking. Nevertheless, the government of Colombia has failed to put the plans into practice. Mr. Carlos reiterated that the human rights crisis in Colombia is not only due to drug trafficking. Rather, economic hurdles and the problem of corruption are particularly relevant to the crisis. 

Speaker Ray Paul then addressed the relevant problem in the Philippines. Mr. Paul discussed the Double Barrel Project, which entails the neutralization of legal drug personalities nationwide in the Philippines. The project has stimulated the surrenders and imprisonment of several individuals related to drug use and trafficking. It has also fostered extrajudicial killings. Mr. Paul criticized that this project does not see the issue of drug-dependency from a health perspective. Instead, drug users are often vilified and demonized in front of the general public in the Philippines.

After Mr. Paul discussed the case of the Philippines, Speaker Jimena Reyes and Speaker Olga Guzman discussed the situation in Mexico. Ms. Guzman said that violence in Mexico has increased in the past decade. While Mexico’s institutions have been regarded as functioning properly, there has been a lack of political will as well as structural problems which have contributed to the difficulty of prosecuting high-ranking officials in the country. National security forces have been increasingly militarized. The increased participation of military forces has contributed to the intensification of violence. Crimes against humanity such as torture and forced disappearance have also been committed with impunity. 

Despite the fact that they are three different countries,the public policy in relation to drug use and drug trafficking and the situations of human rights violations in this context are a common thread to Colombia, the Philippines, and Mexico.

Side Event – “Memory of Political Violence in Venezuela ... we are missing 142/Memoria de la violencia política en Venezuela...nos faltan 142”

(co-hosted by the Bolivarian Republic of Venezuela and Red de apoyo por la Justicia y la Paz)

Overview by Juan Manuel Martinez Rojas, Research Associate PILPG NL

Highlights:

• In 2017, 142 people died during the political violence caused by demonstrations in Venezuela against the government of President Nicolás Maduro.

The event consisted of the presentation of a report made by the Venezuelan NGO Red de Apoyo por la Paz y la Justicia. This organization has been present in the South American country for over 35 years promoting human rights and accompanying victims of political violence, especially armed forced violence.

The event started with a brief greeting from Haifa El Aissami, Ambassador of the Bolivarian Republic of Venezuela to the International Criminal Court. She introduced the general theme of the event and presented the NGO. Then, Ambassador Eduardo Rodríguez from the Republic of Bolivia stated that the side events taking place in the ASP have a plural nature and are enriching for the truth and the debate. 

After the introduction to the event by the diplomatic chiefs from Venezuela and Bolivia, Soraya El Aschkar, member and founder of the Red de Apoyo por la Justicia y la Pazin Caracas,Venezuela gave a further presentation of the NGO highlighting its work for victims of police and military forces, including crimes like torture and arbitrary detentions. She started by presenting the report (main issue of the event) saying that in 2017 the NGO decided to start an exhaustive investigation in the period of violence that occurred between April 2017 and July 2017 in several Venezuelan towns. She claimed that the report focuses exclusively on fatal casualties and that the research is linked with memory and the rights to truth, justice and reparation. The objective is to recognize and make visible the victims caused by the politically motivated violence. 

Then, she introduced the methodology used. She stressed that they began by researching all published reports done by private and official organisms about that period of violence. After that they got direct contact with families and victims and also had access to official data from Public Ministry, the Interior Ministry, the Secretariat of the Police force, the Ombudsman.

Óscar Ernesto Vásquez, historian and collaborator of Red de Apoyo por la Justicia y la Paz presented the contextual elements surrounding the casualties occurred in Venezuela during the period of protests in 2017. He mentioned a universe of 5.045 demonstrations. 600 of them (12%) were considered pacific and had not necessary intervention from any military or police force. 88% of them had to be dispersed by security forces because the risk they represented for life, public and private properties, right to transit, etc.  

The demonstrations had different kinds: Marchs (2% of the dispersed ones), which had the biggest number of media broadcasting; concentrations (5% of the dispersed ones), 69% blockade of streets with barricades and violent actions (21% looting to private and public institutions). He mentioned that from 335 towns of the country, the victims happened just in some capital cities. 

Then, Soraya talked again indicating that there were 142 mortal victims. 6% of them women and 93% men. The average age of the victims is 25 years old. Mostly students and workers. From the mortal victims, 47% didn’t participated in the demonstrations, 49% participated. And the principal cause of death was fire weapons. Also, non-conventional weapons, burnings, etc. 

She established that the demonstrations had two types: Called publicly through political movements with visible leaderships and other demonstrations had no political responsible, they were pseudo-spontaneous. Most of the fatal victims died in demonstrations without public call. From the total, 68 people are killed by fire arm. 

About the perpetrators, she sustained that 52 people died by security official forces (37% of the victims). And, 49% of the victims, that is to say, 70 people were killed by civilians, multitudes, etc. She claimed that some of them had no perpetrator due to traffic accidents, electrocution, etc. 

She affirmed there were violence patterns life the use of military tactics for territorial control, which implied the blocking of main streets denying access for food, medicines, etc. Also, demoralization and destruction of the cities. She said that the demonstrators placed several obstacles and charged fees for mobilization. The report says that they occurred in 13% of the Venezuelan towns, most of them cities governed by the political opposition. There were other violent patterns like sieges against official forces or the use of non-conventional weapons such as mortars, which were provided by foreign and strange agents. There was excessive use of force by the official forces and use of violence against civilians. 

According to the NGO, this situation can be explained by an insurgent intent confessed by the political opposition, despite the concurrent existence of genuine demonstrations against Maduro’s government. For Soraya there were political movements to create an international opinion in favor of a failed State. A State without the monopoly of the force and without the capacity to provide goods and services. In the encounters with the victims the NGO didn’t asked for political sympathies. Some of them were killed demonstrated against and in favor of the government. Also, some of them were killed because they were passing by. Impunity is the worst can happen to a nation, it has to be truth, justice and reparations. Justice has to be for all. The NGO’s goal is to visible victims and accompany them and a report for non-recurrence. 

For Soraya, political conflicts have to be settled through politics not violence and each family deserves dignity, respect and reparation.

Ana Barrios, another member and founder of the NGO and professor talked about the aftermath of the violence. She said that 73% of cases are under investigation and 31 people have been charged for these deaths. She said that there is deep individual (permanent pain, failed life project, fear about future, 121 children are now orphans) and collective consequences (deep political polarization, social breakage). She insisted in the need of social backing for the victims to recover and rebuild their life: health, education, living. Indeed, guarantees of non-recurrence.

During the Q&A, Hugo Ceriza, from a Canadian cooperation agency, asked about victims’ rights and whether the NGO has any information of the progress and current state of the investigations. Soraya El Aschkar answered that 37% of the criminal responsible are currently identified and there are 38 detainees. 

Carmen Elinde from the Central University of Venezuela asked about the sample of 142 victims and the methodology of the study.Soraya El Aschkar answered that 142 is the total of the universe of victims. She said they used all media reports, NGO’s reports, official data, for listing, crossing and victim by victim interviews. There are reports in which they do not include victims of electrocution, because they died in a general violent context.

Side Event – “Complementarity in Action: Bringing Yahya Jammeh to Justice in Ghana” (co-hosted by Australia, the Netherlands, Norway, the United Kingdom and Africa Legal Aid)

Overview by Sally Eshun, intern PILPG NL

Highlights:

• The side event focused on addressing the human rights violations committed under the authority of former Gambian president Yahya Jammeh. 

• With two victims being present, the need for redress for and support to these victims was emphasised as a pressing issue.  

• Martin Kyere, the only survivor of the 2005 massacre, and Ayesha Jammeh, niece of Yahya Jammeh, gave impressive recounts of the violence that reigned under the Jammeh administration. 

By recalling the principle of complementarity, the moderator of this event, Evelyn Ankumah (Africa Legal Aid – AFLA) noted that “justice needs to be done at home, or at least close to home”. With the Jammeh case, Ankumah indicated that Jammeh can be held accountable in Ghana, as it is geographically close to The Gambia and because Ghana has an interest in the case, due to the fact that the majority of the victims were of Ghanaian nationality.  

The first panellist to speak was Reed Brody, a human rights lawyer working with Human Rights Watch. Most notably, he has also worked in the Habré case in Senegal.  During his talk, he recalled the Hissène Habré trial and how victims of Jammeh were inspired by the courage of the victims of the former Chadian president, as well as the various obstacles they had to overcome in their path to seek justice. In October 2018, the Gambia established the Truth, Reconciliation and Reparations Commission with a mandate for two years. Brody hopes that it will serve as a catalogue for the crimes committed under Jammeh’s presidency and that it provides a platform for victims to make their voices heard. He continued by stating that he, on behalf of Human Rights Watch, has been cooperating with civil society actors in Ghana and that they held a meeting with current Ghanaian president Nana Akufo-Addo – who pledged support for this endeavour. Yahya Jammeh is currently located in Equatorial Guinea, where the president Teodoro Obiang Nguema Mbasogohas affirmed that he would “protect” Jammeh from extradition. Brody emphasised that this case is of high importance as it is also a sign that crimes against migrants will not go unpunished. 

Fattoumah Sadeng is the daughter of Solo Sadeng, a Gambian activist who was murdered by individuals under the command of Jammeh.  She shed light on the impact such tragic loss has had on families and entire communities. Her family had to flee The Gambia to Senegal for safety reasons.  As the niece of Yahya Jammeh, Ayesha Jammeh explained that not even the immediate family was safe from Jammeh’s institutionalized violence.  For instance, Ayesha’s father spoke up to his village about resisting the abuse of the government – thinking that he would be safe from his own brother.  He was nevertheless killed by Jammeh’s men, thus proving not only that dissent was unwelcomed during Jammeh’s term and that even people close to him are not safe. 

William Nyarko, Executive Director of the African Centre for International Law and Accountability, explored Ghana’s jurisdiction in this case. Ghana does not try criminal cases under the passive personality principle, which usually grants jurisdiction to a state if its own nationals are affected. In light of this, Mr. Nyarko indicated, however, that other national provisions – such as the Courts Act of 1993 or the Criminal Offences Act of 2012 – could be possible avenues to try Jammeh in Ghanaian courts.  As concluding points, he raised the issue of financing the trial and the conscious decision not to prosecute the case in Equatorial Guinea – as Jammeh enjoys the alliance of the president there.   

Side Event – “Cooperation with the ICC: What the ASP and UNSC must do” (co-hosted by Ireland and Institute for Security Studies (ISS))

Overview by Annelou Aartsen, Research Associate PILPG NL

Highlights:

• Phakiso Mochochoko: “The question is not what the ICC can do about cooperation. What is it that States Parties can do to enhance cooperation with the ICC?  States should take measures which can streamline the process of cooperation with the court.”

This event was co-hosted by Ireland and the Institute for Security Studies (ISS). The panel consisted of Kirsten Meersschaert (Coalition for the International Criminal Court), Kevin Kelly (Ambassador of Ireland at The Hague), Allan Ngari (Institute for Security Studies), Matt Cannock (Amnesty International’s Centre for International Justice), and Phakiso Mochochoko (Head of the Jurisdiction, Complementarity and Cooperation Division of the ICC). 

After some introductory statements by Kirsten Meersschaert, the ambassador of Ireland started off with highlighting that cooperation is the absolute key to the success of the Court.  The non-execution of Arrest Warrants is proving to be one of the biggest non-cooperation challenges the ICC currently faces. It damages the credibility of the court and also influences States Parties’ commitment to the Rome Statute. The United Nations Security Council (UNSC) and the Assembly of States Parties (ASP) are two institutions which play a vital role in enhancing cooperation with the ICC.

In sequence, Allan Ngari, Senior Researcher for the Institute for Security Studies, discussed what role the UNSC and the ASP can play in order to enhance cooperation with the ICC.  Referring to the preliminary findings of the ISS’s research on cooperation with the ICC, Mr. Ngari identified diverse recommendations which can enhance the cooperation of states with the court. Mr. Ngari’s first recommendation concerned the UNSC and their role to urge states to cooperate with the ICC. As specified within the study of the ISS, there are no good reasons as to why the UNSC cannot impose an obligation on all Member States to cooperate with the ICC. Moreover, Mr. Ngari highlighted that official statements should be made through SC Resolutions. Alan ended his contribution by stating that: “it is time that the UNSC takes a critical look at its own actions in terms of enhancing the work of the ICC.” 

Matt Cannock, the third panelists of this side event, opened his contribution by stating that “full and timely cooperation goes to the heart of the ICC’s fulfilment of its mandate.” Nevertheless, there remains a general feeling of weakness around the cooperation regime in the ICC statute. The ASP is unable to sanction non-cooperating states. This, among other reasons, results in a system of cooperation that relies more heavily on ‘carrots than on sticks’.  What then, as posed by Mr. Cannock, can the ASP do to ensure that states cooperate with the court?  He answered this question himself by stating that the existing procedures, running from Emergency Bureau Meetings to discussion of non-cooperation cases at the ASP, should be exhausted more often. As clarified by Mr. Cannock, the current procedures in place have never been exhausted to its full extent. Therefore, there is no need to think about adapting or strengthening current procedures, but there is a need to think about what the ICC already has at its disposal and work with that. Moving on with the discussion, Mr. Cannock stressed that the President of the ASP and the UNSC should talk and cooperate with one another more often in order to ensure states commitment and cooperation with the ICC. Additionally, Mr. Cannock noted that States Parties and the court should not overlook the role of NGO’s and civil society to press for cooperation with the ICC. Mr. 

Kirsten Meersschaert shortly recapped Matt Cannock’s points by stating that quite a large array of tools is available within the existing toolbox of the ICC, however there is a necessity to take them out and actually use them. 

The last panelists, Phakiso Mochochoko, started with stating that the current criticism faced by the ICC, such as criticism on the lengthy investigations, should also be directed towards States Parties. States parties play an essential role in facilitating the work of the court. Mr. Mochochoko moved on by highlighting that States Parties currently do a good job in cooperating with the ICC and that they should ensure that no refusals to cooperate should arise in the (near) future – something that, according to Mr. Mochochoko, states increasingly begin to realize.  Most urgent is to create streamlined processes for cooperation, which can greatly enhance the investigations of the ICC. 

One of the questions asked by the audience addressed the current disfunction of the UNSC, which consists of 3 members that are antagonistic towards the ICC.  Are there other relevant ways, not through the UNSC, through which the ASP can organize and coordinate their actions – for instance, through regional organizations such as the EU and the AU?  Mr Mochochoko responded to this by noting that the ICC currently cooperates with the EU and the AU, however, the information they usually request lies in the hands of states and not so much in the institution itself.  In addition, the AU itself it not homogenous, which makes it harder to cooperate. 

Another question referred to the panel was what the ICC in more practical terms can do to enhance cooperation.  In particular, what kind of incentives they can give to states. Mr. Mochochoko responded to this question by stating that there needs to be a political will amongst states to understand that it is in their personal interest to provide information to the Court.  In addition, it was highlighted by the panel that there should also be a focus on ‘the carrot’: the UNSC should, for instance, make public statements on cooperation with the ICC to encourage it.