Fifth Plenary Meeting of the ASP15

Overview by Jill Baehring, Research Associate PILPG-NL

Highlights:

• Chief Prosecutor Fatou Bensouda said that the cited recommendations on how the cooperation may be enhanced is as relevant today as it has been when it was published, and that her office is willing to share best practices and expertise. She stated that she hopes increased cooperation can close “the impunity gap”.

• Kalifa Gassama from the United Nations Integrated Peace Building Office in the Central African Republic (BINUCA) gave an example of successful cooperation with the office of the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein regarding human rights violations in the Central African Republic.

• The delegation of the United Kingdom said in their statement that they are intending to fully cooperate with the ICC regarding the preliminary investigations on their nationals in Iraq.

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The 5th Plenary Session was dedicated to the issue of cooperation, with a focus on regional and national initiatives to improve cooperation with the Court. The Chief Prosecutor of the ICC, Fatou Bensouda, stated that cooperation is rooted in both the Court and national courts. She warned that cooperation was crucial to the work of the ICC, stating that the system will underperform and not deliver on the promise to prosecute the most serious crimes. Additionally, she said that the oft cited recommendations on how the cooperation may be enhanced is as relevant today as it has been when it was published, and that her office is willing to share best practices and expertise, for instance the Court’s policy papers, which can provide guidelines for national authorities. She stated that she hopes increased cooperation can close “the impunity gap”.

Subsequently, Sadiq Al-Sur, Prosecutor-General in Libya, was given the word. He said that the extended experience of the Court was highly important for the investigations regarding Gaddafi in Libya, which has contributed to deal with serious crimes. He insisted that crimes are always closely linked to what is happening in other states, which requires judicial cooperation. He gave the example of several European countries supporting his investigations in Libya with peer reviews to local prosecutors, and emphasized that such cooperation is crucial to fight impunity.

After this, Michèle Coninsx, Director of Eurojust, emphasized the necessity to be efficient in the fight against ICC crimes and the need for judicial cooperation in an effective and speedy way. To see the connections between crimes, criminal groups and networks, it would be necessary to step up cooperation with third states. She gave the example of the network of the European Union Cooperation, which she called the “high speed train” to justice.

Herman Von Hebel, Registrar of the ICC, afterwards highlighted the role of the Plenary, which he called an excellent forum to highlight areas that need enhanced cooperation. Financial investigations and witness protection were named as other areas in which the court can benefit from different regional national and international initiatives.

Catherine Bomberger, Director-General of the International Commission for Missing Persons (ICMP), insisted that the problem of missing persons did not respect borders. For this reason, the issue of the missing was a global challenge which demands an international coordinated response. Cooperation could also consolidate peace trough transitional justice. She also emphasized ICMP’s close cooperation with Libya regarding disappeared persons under Gaddafi.

Kalifa Gassama from the United Nations Integrated Peace Building Office in the Central African Republic (BINUCA) highlighted the importance of the cooperation with related entities such as the office of the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein. His office is helping the government to understand the context of human rights and is providing them with support such as reports and briefings for the minister of justice on ongoing human rights violation in the country.

Antoine Bernard, CEO of the International Federation for Human Rights, was given the word and highlighted in his statement the importance of the ICC as a strong incentive or partner for the search for justice. He pointed out that positive complementarity was no longer an abstract concept. He mentioned the increasing danger for first responders and human rights violations documenters, which he called a “worrying dimension”.

Several States Parties expressed their gratitude towards the speakers and appreciated the recent development regarding cooperation. The delegation of the United Kingdom said in their statement that they are intending to fully cooperate with the ICC regarding the preliminary investigations on their nationals in Iraq. Liechtenstein highlighted the importance of extending cooperation to financial investigations. Amnesty International and Human Rights Watch both criticized the issue of non-cooperation of States Parties with the ICC and the inconsistent practice of the Court in this regard.

Side Event: “Domestic Accountability for Crimes Against Humanity in Mexico” (hosted by Open Society Justice Initiative)

Overview by Georgios Plevris, Research Associate PILPG-NL

Speakers:

• Mariclaire Acosta – Mexican Commission for the Defense and Promotion of Human Rights

• Michael W. Chamberlin – Deputy Direction of Diocesan Center for Human Rights Fray Juan de Larios

• Eric Witte – Senior Project Manager of National Trials of Grave Crimes, Open Society Justice Initiative

Highlights:

• The conclusion of the report titled “Undeniable Atrocities: Confronting Crimes Against Humanity in Mexico” launched in June 2016, is that there are substantial reasons to believe that federal state and non-state actors have committed Crimes Against Humanity.

• The current situation in Mexico is characterized by a militarization of the law enforcement and the deployment of the armed forces against drug cartels, a practice that has produced, according to reports, empirical and statistical data, thousands of homicides and disappearances.

• The results of report call for the creation of an internationalized investigative body based in Mexico with powers to independently investigate and prosecute atrocity crimes, as well as cases of grand corruption.

The event revolved around Open Society Justice Initiative’s report titled “Undeniable Atrocities: Confronting Crimes Against Humanity in Mexico” launched in June 2016, in collaboration with five Mexican human rights organizations. The report is the culmination of three years of research and examines the devastating toll of drug related violence in Mexico through the lens of Crimes Against Humanity (CAH) violations. The panel of speakers included Mariclaire Acosta, Board Member of the Mexican Commission for the Defense and Promotion of Human Rights, Michael W. Chamberlin, Deputy Director of the Diocesan Center for Human rights Fray Juan de Larios, and Eric Witte, Senior Project Manager, National Trials of Grave Crimes, of the Open Society Justice Initiative.

The remarks and comments of the speakers drew a dreary and obscure picture of state sponsored violence in Mexico, with accountability and impunity in its center. Citing the high number of cases of torture and forced disappearances, amounting to hundreds of thousands, Mr. Witte reminded the audience many forced disappearances cases like those in Ayotzinapa and Guererro, as a widespread practice in Mexico. The conclusion of the report in question, he noted, is that there are substantial reasons to believe that federal state and non-state actors have committed Crimes Against Humanity. One of the main reasons to conclude that, is the political obstruction and lack of accountability by the Calderon and Pena-Nieto governments, in the forms of denial and minimization of such crimes, encouraging torture during investigations, politicizing prosecution and fabricating evidence, and many more.

During the discussion, many further comments were made towards the lack of accountability and bad governance in Mexico. Mrs. Acosta quoted the latest annual report of the National Human Rights Commission (NHRC) that underlined “[an] absence of rule of law in Mexico”, as well as “lack of legal security for people”. The current situation in Mexico is characterized by a militarization of the law enforcement and the deployment of the armed forces against drug cartels, a practice that has produced, according to reports, empirical and statistical data, thousands of homicides and disappearances. At the same time, generalization and systematization of torture during prosecutorial and police investigations are a regrettable and condemned practice. Furthermore, the double image of Mexico was criticized, with Mrs. Acosta underpinning the discrepancy between what Mexico stands for abroad regarding human rights, and what really happens inside the country.

However, the aim of the report is not to trigger jurisdiction of ICC. On the contrary, the report calls for the creation of an internationalized investigative body based in Mexico with powers to independently investigate and prosecute atrocity crimes, as well as cases of grand corruption. This caused a serious of questions in the audience, including one from the Senior Legal Advisor to Amnesty International, who was present at the event, about why the report does not recommend an official investigation under the Rome Statute in Mexico. The answer came from Mr. Witte, who remarked the many disadvantages justice in The Hague has in comparison to domestic prosecution. The aim of the report is to encourage and empower the rule of law in Mexico, keeping in mind the proximity of such prosecutions to the victims. Mr. Witte continued saying that even if the ICC opened an investigation this would be at best on a handful of cases, marginalizing in this way many thousands of cases and victims. According to all speakers, the aim of the report is to establish a Guatemala-type of CCIG international mechanism against impunity. In any case, such a recommendation is only a snapshot in time, and can change in the future.

Side Event: “Crimes against Humanity, Sex Crimes and Command Responsibility: Developments and Boundaries in Core International Crime Practice”

Overview by Rosalie Dieleman, Research Associate PILPG-NL

Speakers:

• 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)

Highlights:

• 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.

Command Responsibility
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.

Side Event: “Child Soldiers: Prevention and Accountability” (co-hosted by Canada, OTP, Roméo Dallaire Child Soldiers Initiative and JRR)

Overview by Emma Bakkum, Research Associate PILPG-NL

Speakers:

• Fatou Bensouda – Chief Prosecutor of the International Criminal Court

• Roméo Dallaire – Founder of the Roméo Dallaire Child Soldiers Initiative

• Samuel Emonet – Director of Operations at JRR

• Sabine Nolke – Ambassador of Canada to the Netherlands

Highlights:

• The newly launched ICC Policy on Children was praised by all panelists.

• The cooperation between the Child Soldiers Initiative, the JRR and IICI aims to ensure that international crimes involving children are addressed appropriately and systematically.

• Several issues in preventing and creating accountability for the recruitment and use of children were discussed, such as the cooperative roles of the ICC and civil society, the gap between international efforts and national implementation, the moral dilemma of soldiers and police officers when facing child soldiers and rehabilitation.

During this roundtable discussion, ways to prevent and create accountability for the recruitment and use of child soldiers were discussed. It focused specifically on the cooperative roles of the ICC and civil society to address the issue. The panelists emphasized international achievements, including the newly launched ICC’s policy on children by ICC prosecutor Fatou Bensouda, which will serve as a framework for prevention and prosecution of child related crimes at the ICC and as a useful reference to national authorities, civil society and other actors involved. Furthermore, the work that has been delivered by the Child Soldiers Initiative, JRR and the IICI in improving investigations into the use of child soldiers, was highlighted.

While the international community has made great strides to expose and prosecute crimes involving children, it was strongly underlined that more has to be undertaken as children are still disproportionately affected by war. The panelist discussed several issues, such as the implementation gap between international efforts and the national level. Dallaire furthermore discussed the moral dilemma of soldiers and police officers when facing child soldiers. According to Dallaire, these soldiers and police officers need to be an integral part in the solution.

During the Q&A further issues on rehabilitation and the role of the OTP, JRR and Child Soldiers Initiative as well as the role of the UN Security Council in preventing the use of child soldiers were raised. Emonet suggested that to reach accountability for crimes against children, JRR and its roster of experts could serve a complementary role in investigations by the ICC. While Bensouda mentioned that the problems of trauma and addiction during rehabilitation should be taken into account, Dallaire stated that years of efforts on rehabilitation have helped, but that the real essence of the problem is prevention. That is why the Child Soldiers Initiative trains military police forces to get children out of conflict situations. Lastly, gender differences and the role of girls as child soldiers and the way they experience pain differently from boys, as well as the importance of women as peacekeepers were mentioned.

Side Event: “The Role of International Criminal Justice in the Fight Against Modern Slavery”

Overview by David Lando, Research Associate PILPG-NL

Speakers:

• Christian Wenaweser – Permanent Representative of Lichtenstein to the UN

• Phakiso Mochochoko – Director of the Jurisdiction, Complementarity, and Cooperation Division in the Office of the Prosecutor

Highlights:

• Mr. Wenaweser’s demonstrated the magnitude of the crime of enslavement and human trafficking and the impunity gap: “there are millions of people living in slavery, but at the same time, there are only 5.000 proceedings taking place today across the world that regard the crime of slavery.”

• Mr. Mochochoko highlighted the importance of domestic authorities in the battle against the crimes of enslavement and human trafficking.

Despite being short, and constituting only three panelists, the event attempted to tackle an important issue in international law and justice. Namely, how to end impunity for crimes of slavery, forced marriages, and human trafficking.

Christian Wenaweser, the Permanent Representative of Lichtenstein to the UN, opened the event by describing the magnitude of the crimes that are committed: “20 to 45 million people are the victims of slavery. Many believe that slavery is a thing of the past, but these numbers prove this is far from the truth.” And while the crimes are ubiquitous, there is little legal proceedings to confront them: “there are millions of people living in slavery, but at the same time, there are only 5.000 proceedings taking place today across the world that regard the crime of slavery.” Therefore, “it is important to understand that there is a huge impunity gap.” This gap should be confronted, at least partly, by the ICC, Wenaweser continued: “the ICC should exercise its mandate on this matter through raising awareness and prosecuting.”

The debate then shifted from discussing the problems of modern slavery to the possible way to confront them by the ICC. Phakiso Mochochoko, Director of the Jurisdiction, Complementarity, and Cooperation Division in the Office of the Prosecutor, argued that, “modern slavery is not confronted with the vigor needed to encounter it.” Yet, the ICC does “have the ammunition” to do so. The ICC, he argued, can do so not only under the auspices of war crimes, but as crimes against humanity.

The moderator of the event then turned to receive questions from the crowd. I raised the issue that despite the optimism of Mr. Mochochoko, it seems to me that this crime is especially difficult to encounter by the ICC as it lays in a multi-layered liminal space: it lays between the jurisdiction of different States (about which another member of the audience added that some of these States may not even be parties to the Rome Statute), it is both a national issue and an international issue, and it is unclear whether it is individuals that should be investigated or the corporations that facilitate modern slavery. On this, and other questions to that effect, Mr. Mochochoko replied that “on the international level the ICC has enough ammunition against it [modern slavery and human trafficking], but the national level should develop further. This is an important weapon against this crime. Cooperation is a tricky issue. ICC is about individuals; therefore, it is difficult to focus on corporations and businesses. If we find individuals that commit these crimes we will prosecute them, but to establish their connection to corporations is difficult.” Moreover, “States have the primary obligation to prohibit modern slavery and human trafficking. States through national investigations must punish and deter the commission of these crimes. Moreover, the Office of the Prosecutor is willing to stand alongside States in assisting them in combating these heinous crimes. The Office will also look to improve collaboration with different branches of the United Nations.” One interesting statement by Mr. Mochochoko came in response to an assertion by a member of the audience that the first step to fight impunity in this matter is to clearly define in the Rome Statute what exactly modern slavery constitutes. To this, Mr Mochochoko responded: ” Crime of enslavement is fully covered. I am not sure there is need for more elaboration on it in the Statute. The Statute does give us a broad possibility to act on forced marriage as well.”