Overview by Rosalie Dieleman, Research Associate PILPG-NL
Ms. Stephanie Barbour (Commission for International Justice and Accountability)
Dr. Jose Guevara (Mexican Commission for International Justice and Accountability)
Dr. Emilie Hunter (Case Matrix Network)
Professor Darryl Robinson (Queens University, Canada)
Professor Kim Thuy Seelinger ( Human Rights Center, University of California, Berkely, School of Law)
Ms. Patricia Viseur Sellers (Special Adviser on International Criminal Law Prosecturion Strategies)
Dr. Ania Salinas Cerda (ICC Pre-Trial Chambers)
On SGBV: One challenge is the definition of sexual and gender-based crimes, as there are many differences for instance in the definition of rape. Some of these definitions are not gender neutral.
On CAH: one element of the crime is that it must be part of state organized, or part of state policy. It is a controversial criterion, however the ICC jurisprudence has successfully broadened the scope of organizational activity, with the “policy” requirement not being overly formal.
On command responsibility: Both Professor Robinson and Ms. Viseur discussed the “mental element” of command responsibility, specifically” the “should have known.” Robinson added that while the commander might claim that he could not have known of the crimes of his subordinates, that is unlikely when he himself created this situation in which he lacks knowledge.
This event was a panel discussion concerning three topics that were discussed by the panel members consecutively. The topics of these discussions are centered around the “developments and boundaries” with regards to crimes against humanity, sex crimes and command responsibility. The event was co-organized by Norway, the Democratic Republic of Congo, the United Kingdom and the Centre for International Law Research and Policy (CILRAP).
Sexual and Gender Based Violence
The first question raised by the chair was what issues hinder the persecution and prosecution of sexual and gender based violence. Prof. Seelinger raised that there have been a lot of efforts over the past 3 years with regards to implementation at the local level of the Rome Statute and issues with regards to witness protection. One of the challenges here is the definition of sexual and gender-based crimes, as there are many differences for instance in the definition of rape. Some of these definitions are not gender neutral. Stephanie Barbour highlighted that it in order to be able to prosecute offenders of these crimes, is necessary to train investigators to specifically collect evidence with regards to sexual and gender-based crimes. Further remarks were made with regard to the need to further advance witness protection, as well as the importance of dedicating human and material resources to these crimes because it otherwise might get overlooked.
Crimes Against Humanity
The second round concerned the developments and boundaries in crimes against humanity. Professor Robinson noted that in the most recent decisions on crimes against humanity, the ICC has in his views appropriately applied the conditions in the article to the modern-day situation. Especially with the condition concerning requiring state or organization policy. This criterion has been applied more flexible in order to address a broader scope of organizational activity, with the “policy” requirement not being overly formal. Dr. Guevara then went into explaining why the research work of the Mexican Commission for International Justice and Accountability shows that there are widespread abuses with an organizational aspect in Mexico. According to Dr. Guevara there are several crimes in numerous instances that could be attributed exclusively to state actors such as the police, army and the navy, ranging from arbitrary detention, widespread murder and executions to enforced disappearances and torture. The lack of willingness from governments to investigate this is problematic, and his organization is therefore looking into possibilities to ask NGO’s and academics to establish an investigation mechanism.
The third round started off with the question: Beyond Bemba, how far does command responsibility travel? Both Professor Robinson and Ms. Viseur talked about the “mental element” of command responsibility, the “should have known.” Robinson added that while the commander might claim that he could not have known of the crimes of his subordinates, that is unlikely when he himself created this situation in which he lacks knowledge. Professor Viseur added to this that in the Bemba case, there was no need to prove that he should have known about the offences going on, but this in fact might be relevant for future crimes. How to establish that a commander should have known, here it might be relevant what actions the commander has taken to gather information about the offences, or even by using diplomatic inquiries for establishing what information was available. Robinson also added that command responsibility is a product of international law which has an influence on domestic legal systems. Dr. Hunter elaborated on this by presenting some of the results of the research work of Case Matrix Network, which concerned the implementation of command responsibility in domestic legislation. So far, approximately 63 states have implemented such legislation, of which approximately 28 have replicated the provisions of the Rome Statute.