ASP18 Side Event: Launch of the AFLA quarterly: Lessons from Gbagbo & Blé Goudé case and ICC Review

18th Session of the Assembly of States Parties to the Rome Statute

Day 1 (2 December 2019)

Name of the Event: Launch of the AFLA quarterly: Lessons from Gbagbo & Blé Goudé case and ICC Review (Side Event co-hosted by Uganda and Africa Legal Aid)

Overview by: Raghavi Viswanath, Junior Research Associate PILPG-NL

Main Highlights:

The Gbagbo and Blé acquittal calls for a more nuanced review of prosecutorial strategies and the sentencing practices of the Court. Importantly, the Court should steer clear of the risk of politicization. Instead, the Court should focus on the need to preserve the right to family life of the accused, encourage positive complementarity through domestic prosecutions and incentivize States to accept released/acquitted defendants.

Summary of the Event:

Ambassador Blaak-Sow (Ambassador of Uganda to the Benelux and European Union) and Ambassador van den Ijsel (Netherlands Ambassador to the ICC and OPCW) welcomed all participants to the launch of the AFLA quarterly, and spoke about how the 18th session of the Assembly of States Parties was expected to serve as a crucial signpost for the review of the Court’s performance. The first panelist was Dr. Namira Negm (Legal Counsel of the African Union). Dr. Negm first commented on the timeliness of the AFLA quarterly which exposes the Court’s prioritization of the situations in the African continent. In her view, Gbagbo was a tipping point in this trend. Notably, she discussed how Gbagbo prompted many allies of the Court to call for reforms in prosecutorial strategies. The case also warns of the damage that unsubstantiated indictments cause both to the reputation and the resources of the Court.

This was followed by a short presentation by Evelyn Ankumah (Executive Director, Africa Legal Aid). She emphasized on the need for nuance in criticism. The ‘beyond reasonable doubt’ and ‘presumption of innocence’ standards are not new to criminal trials. However, the application of these standards in Gbagbo was unique – because of the heinousness and scale of the crimes, the interests of the victims, and the interests of States that often wish to see particular persons prosecuted. Therefore, the key question should be how to minimize the risk of politicization – both on the OTP and the judges. The political background of the case should not be the basis for reduced evidentiary standards. To this end, she warned against measuring the success of the Court by the number of convictions. In the long run, the Court will only have legitimacy if it gives due regard to the interests of fairness. 

Chief Taku (Immediate Past President, ICC Bar Association; Defence Counsel before the ICTR, SCSL and the ICC) and Mariana Pena (Senior Legal Officer, Open Society Justice Initiative) then called for a reconsideration of the arrest and detention policies of the Court. Gbagbo’s continued detention even after the acquittal would inevitably lead to double victimization. In her presentation, Mariana Pena highlighted how the calls for a review of the ICC were not triggered merely by the recent string of acquittals. These calls are grounded in broader systemic failures of the Court’s detention policies, its limited understanding of the limitations on the ground, and the strained relationship between the Court and the States Parties. These problems are further compounded by the uncertainty in the standards applicable to ‘no case to answer’ motions. In particular, she discussed the implications of the draft resolution of the creation of an expert panel to review the Court’s performance. In her view, it was important that the panel be encouraged to direct recommendations both at States Parties and the Court. In order to ensure independence and credibility, the review process must engage with the civil society.

Melinda Taylor (Defence Counsel at the ICC) then made a short presentation on the due process lessons learned in the wake of the Gbagbo and Ble acquittal. Significantly, the practice of acquittals is not unique to the ICC. Both the ICTY and the ICTR have famously acquitted many senior leaders involved in the Yugoslav conflict. Therefore, it would not be incorrect to infer that the heightened criticism directed at the ICC is in fact linked to the defendants being African nationals. She then spoke of how States could assist in undoing the trust deficit. In her view, releasing defendants should be considered as important as arresting and detaining them. However, releasing defendants/acquitting defendants does not serve the rehabilitative ends of justice if the defendant is already made to serve de facto punishment and denied the right to family life. Notably, Gbagbo was one of many cases where the accused was acquitted after having served nearly eight years in detention.  Therefore, more States should be encouraged to host the defendants released or acquitted by the Court. As of today, only two states have signed agreements with the Court to evince their interest in accepting released prisoners. In conclusion, she spoke of how the permanence of the Court should be used to its advantage. The Court, unlike its predecessors, had the opportunity to learn from the practices of the ad hoc tribunals and revise its working policies to keep up with the constantly evolving interests of justice.

The panelist presentations were followed by a brief floor discussion. Dr. Negm, in particular, was asked about the pushback from the African Union, and the futility of reform if African States choose to withdraw from the Statute. Dr. Negm acknowledged that withdrawal may be an extreme measure. However, reforms in the prosecutorial strategies could contain/undo this trend. The root of the problem was the target-based approach of the OTP – which has repeatedly failed, as seen in the Kenyatta and Ruto cases. Instead, the Court should draw on the success of the ad hoc tribunals and encourage domestic prosecutions at first instance. In so doing, the Court could also avoid creating unrealistic expectations for the victims and local communities. The event ended with comments from the counsel in the Gbagbo case, who discussed how the case prompted constructive exchanges between the Defence and the OTP, and internal policy reviews across all divisions. She voiced the agreement of the room that there was an urgent need to raise, and not lower, the bar for prosecutions.

Humanitarian Reality in Colombia: Saving Lives and Safeguarding the Future of Peace

By: Francisca De Castro, Junior Research Associate, PILPG-NL

Since the 1960s, Colombia has been faced with a situation of armed violence that has plunged the country in insecurity and crisis. Groups of farmers had created self-defense militias, which later turned into guerrilla groups, over agrarian disputes with the government. The violence turned into a conflict between state forces, paramilitary groups, and guerrilla groups such as the Revolutionary Armed Forces (FARC), amongst others. In 2016, the Colombian government and the FARC signed a peace agreement which put an end to more than 60 years of civil war. However, three years later, the humanitarian reality in Colombia is still far from resolved. The International Committee of the Red Cross (ICRC) reported that the humanitarian situation in Colombia had in fact decayed in 2018. According to the ICRC, this was a consequence of the five remaining armed conflicts with other groups that were running in parallel, and the ineffective state response to these conflicts in certain rural communities, such asthe Catatumbo and the Cauca regions.

The Colombian state’s inaction prompted social leaders, a term generally adopted in Colombian government and civil society to refer to people who are advocating for their communities social/civil rights, to proactively voice the concerns of minorities.  However, as a result, these leaders have become targets of aggression from unknown actors.  Reports suggest that these aggressions went from 82 recorded aggressions in 2008 to 174 in 2009, and have increased since then.  According to the NGO Somos Defensores, in 2018 alone, over 155 social leaders were assassinated.  However, the government has not been passive during this situation. It has established protection measures for social leaders which include private security officers as well as protected vehicles. 

The “Humanitarian Reality in Colombia” conference organized by Citizen Diplomacy (a group of Colombians living in the Netherlands and working towards bringing attention to the situation of social leaders in Colombia), provided a platform for social leaders visiting Europe to have an opportunity to share their stories. 

The first speaker was Nubia Russi, a leader from Tolima who has benefited from the security measures provided by the government.  Although grateful for the initiative, she pointed out several flaws in the system. Amongst those are the inequality of access to protective measures, as well as obstacles brought on by these measures, such as the difficulty of finding employment while being accompanied by officers.  She elaborated on how the budget of these measures could be better utilized to facilitate educational training for the beneficiaries. 

The second leader was Carlos Paez of the Tierra y Paz Organization.  Originally displaced from his land in Urabá in the 1990s, he has been fighting to regain access for over a decade.  This is a fight that has been affected by several laws, passed in 2007, 2009, and 2011, which claimed that any person forcibly displaced from their lands due to paramilitary activity had the right to regain access.  Yet Carlos is one of the few, as less than 10% of the regions’ displaced families have been able to return to their lands. 

Lastly, two leaders from the organization Movimientos Rios Vivos, Genaro Graciano and Milena Florez, explained what their lives have looked like since the 2018 Hidroituango catastrophe in which a poorly constructed dam suffered structural defects which resulted in the flooding of several communities in the area, resulting in over 120 people severely affected.  They seek reparations for the harm suffered by the communities inhabiting the affected areas, and call for independent investigations to assess liability for these harms. 

Citizen Diplomacy has put forward a four-pronged proposal to protect and enhance the lives of these social leaders.  It calls for decompression, empowerment, safe return, and creating safe spaces. 

The decompression component addresses how social leaders live under constant pressure and fear for their lives.  It aims to transport social leaders from high pressure to low pressure environments (often international destinations) for a short amount of time. This would, hopefully, be complemented with familial company and emotional support. 

The empowerment component stems from the social leaders’ motivation to defend human rights.  It seeks to provide training to improve the resistance capacities of social leaders, and organize conferences to raise awareness of the current situation of each defender. 

This ties into the organization’s  efforts to ensure safe return of those displaced.  As the threat persists upon return to Colombia, the role of organizations that provide international accompaniment is extremely important.  Many organizations across Europe work towards similar goals.

The last element is the promotion of safe spaces.  The international accompaniment is also extremely useful upon return to Colombia, as it can assist the social leaders’ efforts to create safe spaces for victims, and ultimately develop a self-protection strategy in consultation with the community.

Each Colombian social leader’s story is different.  Leaders represent different minorities with distinct grievances. In the recent past,  there has been an increase in the visibility of their fight compared to the situation during the FARC conflict. However, this fight will only achieve its full potential if it is accompanied by efforts to study and fix the issues hindering peace building in the state.

Creating a Virtual Human Rights Lawyer Week: Addressing Challenges

By Gabriella Gricius, Jasmijn de Zeeuw, and Bethany Houghton - PILPG-NL Senior Research Associates

Over the past six months, PILPG’s Netherlands Office has been working with Vrije Universiteit Amsterdam, the Knowledge Management Fund, InterCidadania Institute, the Legal Assistance Centre in Namibia and the VU Vereniging on the Virtual Human Rights Lawyer (VHRL) Chatbot. One of the main reflections from this project as well as the takeaways from our expert input sessions was how many challenges we first faced and later have overcome. 

At the beginning of this process, our team put together a list of some of the challenges that building the VHRL chatbot presented. For some of these challenges, we devised ways of meeting them, while for others we have adapted our approach to better take these factors into account. After much reflection at the end of the project period, we have determined some ways of adapting and meeting the most critical of these challenges. 

Challenge 1, 5 & 6: Internet, Adaptation to Local Customs, and Interacting with Victims

The first and most obvious challenge of the VHRL chatbot was that it relies on internet access. Victims of human rights violations often do not have internet access and therefore, a lack of internet access was a severe limitation of the chatbot’s usefulness. Furthermore, adapting the chatbot to local language presented another issue as many different cultures talk about certain issues such as rape in a roundabout way. Lastly, the challenge of how to interact with victims was one that we spoke to numerous experts about. 

To solve these three issues simultaneously, our team decided that to refine the focus on creating a tool for legally-minded civil society organizations (CSOs) rather than focusing on directly creating a tool for victims. Not only does working with legally-minded CSOs partially solve the challenge of creating a chatbot with understandable but legally accurate language, it also means that it is more likely that our target audience would have internet access. This ensures enhanced accessibility of our tool. 

Challenge 2 & 7: Building the Chatbot and Data Protection

Two separate but interrelated challenges are the actual construction of the chatbot as well as the question of data protection. Constructing the chatbot was a challenge that our team dealt with by working with InterCidadania Institute to create a first prototype. This version of the chatbot brought many further challenges to the forefront such as reflecting on whether we should be working with ontological or decision tree designs and how to create a sustainable backend that could be modified to use natural language processing once this technology is ready. 

The second challenge for our team was data protection. How would we make sure any data was securely stored? Did we want to collect data at all? Would the data that ran through Telegram as a third party be safe? Victims of human rights violations are particularly vulnerable and their data highly sensitive. Protecting this data is central to the development of the chatbot. To approach this challenge, we looked closely at data protection regulations throughout Europe and varying ways we could ensure that data would remain safe. We also examined at the possibility of not collecting data at all. Looking forward, we remain committed to making data protection and cyber security the most important aspect of the development of the VHRL chatbot.

Challenge 4: Domestic Remedies

The VHRL chatbot focuses on international and regional human rights mechanisms. These mechanisms in manyl cases ask applicants to first use all judicial proceedings available under domestic law before bringing a case or complaint before them. This poses a challenge for our chatbot - how can we ask users if they have exhausted domestic remedies? Which questions can help determine whether this is the case when domestic systems vary? And how to incorporate the exceptions to this requirement? 

Our choice for legally-minded CSOs addresses this challenge. The VHRL can assist those CSOs that work with clients who have already exhausted domestic remedies and are looking for another way to help them with their case. The chatbot aims to make information about mechanisms at the international level - information that is currently dispersed and often difficult to access - more accessible for these (local) organizations.

Creating a Virtual Human Rights Lawyer Week: VHRL Conference

By Hester Dek - PILPG-NL Intern

“A pro bono law firm does not have the resources to help with everything or everyone”. 

According to Dr. Marieke de Hoon, Assistant Professor VU Amsterdam and Direction & Senior Counsel of PILPG Netherlands, this led PILPG to set up the Virtual Human Rights Lawyer project (‘VHRL’) – a joint project of the Vrije Universiteit Amsterdam and the Netherlands Office of the Public International Law & Policy Group (PILPG).  The project works towards making information on human rights more accessible by using chatbot technology. 

On September 27, 2019, PILPG organized the ‘Creating a Virtual Human Rights Lawyer Conference’ to present the prototype of the VHRL and reflect on the function of technology in the human rights discourse. The conference focussed on the conceptualization of the VHRL, the challenges to the execution of the project, and exploring possibilities for development.  Dr. de Hoon provided an overview of the project, together with three senior research associates – Bethany Houghton, Gabriella Gricius, Jasmijn de Zeeuw – and former research associate Abby Roberts.  They explained some of the challenges to the project including data protection and simplifying otherwise technical legal terms. 

This was followed by a panel discussion on “Enhancing Human Rights Redress through Chatbot Technology: Opportunities and Challenges” with experts from the field of psychology, law, and technology. “The project is about contributing to helping people overcome human rights violations, not about making them even more vulnerable” said Dr. de Hoon and, a sentiment echoed by  Mr. Sinteur – Co-founder of Radically Open Security. They emphasized that – the VHRL team should be mindful of cyber security risks. Mr. Sinteur advised the VHRL against designing its own technology, as this could make it easier for it to be blocked, especially if state actors had reservations about the scope of the project.  In response, Ms. Serrurier – Co-founder of AI Training.nl and Associate Partner at Holland Consulting Group – observed that the risk of encountering objections from states also exists with human agents. An most important takeaway was that the best manner to deal with this risk is by communicating it well. 

Besides highlighting the importance of communicating the risk of cyber security, Dr. de Hoon stressed on the importance of managing the expectations of the VHRL.  Dr. de Hoon clarified that the VHRL is a navigation and knowledge tool, and that it should not be seen as a replacement for a real lawyer. 

The panel discussion also prompted, discussion on the benefits of the project.  Mr. McMahon discussed how technology-friendly projects like the VHRL could fill the accessibility gap created by international courts like the ICC.  Ms. Chahuneau – Senior Legal Advisor at Parliamentarians for Global Action – also explained that for victims of human rights violations, the mere affirmation  that a human right was violated has a validating effect . 

Overall, the conference provided PILPG and the attendees with a clear overview of what the design process and implications of the project.  Most importantly however, it was an eyeopener on the transformative potential of tools like the VHRL.  

Creating a Virtual Human Rights Lawyer Week: Spring Outreach

By the Virtual Human Rights Lawyer Team

In the months of April and May 2019, PILPG-NL’s Virtual Human Rights Lawyer (VHRL)-development team presented the VHRL at three outreach events, where the team were able to disseminate their activities and receive inputs on how to finetune the project. 

In April 2019, some of the VHRL Research Associates and Senior Research Associate, Gabriella Gricius,  participated in the Justice Challenge, a competition for social entrepreneurs with innovative solutions to justice problems.  The Justice Challenge is a new initiative by the Amsterdam Law Hub, a co-working space for students and staff at the University of Amsterdam. The Justice Challenge incubator consisted of two phases, a startup bootcamp and a pitch competition. At the bootcamp, topics such as lean startups, grant seeking, assumption-testing,  validation research, fieldwork, and user interviews were discussed. We would like to thank the organizers of the Justice Challenge, Nathalie Dijkman and Asefeh Zadeh, for their ideas and recommendations.  

In May 2019, the Amsterdam Centre for Migration and Refugee Law organized a seminar on the role of law clinics in strategic litigation in the field of migration law.  PILPG was invited to give a workshop on its work, in particular the progress of the VHRL project. PILPG- NL Director Dr. Marieke de Hoon and the Research associates Abby Roberts, Cleo Meinicke, and Filipe Costa started the presentation by outlining the overarching goal for the chatbot and explaining our approach towards achieving this goal.  They then discussed the process of creating the chatbot, the operational concerns identified during the development phase of the project, and the decision trees that map out the potential user interactions with the chatbot.

Also in May 2019, Dr. de Hoon was invited to speak at the Amsterdam Law Forum Conference: Technology and International Law on the VHRL. At the conference, Dr. de Hoon presented the VHRL, the challenges of the project, and how the team were working to overcome them. With an audience of academics with an interest in law and technology, the team was able to receive relevant feedback.

PILPG-NL extends its gratitude to those who organized the three events for giving the team the platform to share knowledge of the VHRL and to hear feedback on the project.