Side Events: 16th Assembly of States Parties - From Nuremberg to The Hague and Beyond: Critical Reflections of the State of Criminal Justice Today

By Sophie Bones, PILPG Law Fellow

The International Nuremberg Principles Academy is an organization that promotes international criminal justice and human rights. They do so by imparting invaluable knowledge via training on the investigation and prosecution of international crimes at the national level. Their mission is to assist states in doing better domestically. Dr. Serge Brammertz, Chief Prosecutor of the ICTY and President of the Academy, gave Africa as an example of how their work is impactful. He says the biggest problem in regard to investigating and prosecuting crimes in Africa is lack of knowledge. In the past year, they have done training sessions in Kenya, South Sudan and Rwanda bringing the expertise of those who work at international criminal tribunals to (mostly) local prosecutors. The Academy uses a case study developed from Security Council reports and established evidence to provide a realistic simulation for the domestic prosecutors to practice with. This is sent in advance, giving participants time to prepare fully. The training sessions train participants in a range of skill sets, from the use of evidence to witness interviews. In the next year they are bringing training to the Central African Republic, Côte D’Ivoire, Senegal, and Mali.

The Academy members reflected on challenges to international justice generally, and took the closing of the ICTY as a moment to reflect on what has worked and what hasn’t. Their main lessons when thinking about the future were threefold.

Firstly, that we missed the mark in terms of the limitations of the criminal justice process. In the future, we need to be realistic about what it can achieve, because the reality is that the current court system doesn’t live up to promises contained in the statutory preambles regarding peace and reconciliation. Criminal tribunals can contribute in important ways, but they cannot solve the problem of peace by themselves.

Secondly, transitions require much more than criminal justice. They require dialogue, societal and legal reforms, and a struggle with the truth. Capacity building in national governments is key to successful transitions.

Finally, the complementarity principle must be fulfilled. It is this principle that empowers states to prosecute crimes themselves, and the ICC should be a last resort.

Personal observations:

Complementarity is the principle that states, first and foremost, bear the responsibility to prosecute crimes domestically, and that the ICC is merely complementary to the domestic criminal system. This is a continuing issue at the ICC, and is seen as one of the most important components of fighting impunity. The ICC can only try so many cases, and only the most senior of officials. Domestic mechanisms are more suited to broader prosecutions encompassing a range of actors. The Academy seeks to enforce and encourage this principle by equipping the necessary domestic prosecutors with the tools to successfully take on these cases. They are seeking to bridge the gap between the crimes being committed and the accountability mechanisms set up to deal with them. This will be an important part of the future for international criminal justice. PILPG is involved in a number of transitional justice projects, for example in South Sudan with the proposed Hybrid Court, and it is work like this that ensures such mechanisms are staffed by competent prosecutors who are fully able to deal with the intricacies of war crimes prosecutions.

ASP Plenary Meetings | First and Second Plenary Meetings of the 16th ASP

FIRST PLENARY SESSION

The First Plenary Session welcomed the visiting delegations of States Parties on the morning of Monday 4th December. The core tasks that will be focused on during the ASP are the judges’ elections, the budget, cooperation, aggression, and the trust fund for victims, among others.

President Kaba of the ASP was invited to speak, giving a moving farewell. He reflected on the legacy of his presidency, and highlighted that legal subsidiarity was a key principle in moving forward. He said it was up to states to judge and try those responsible for the most serious crimes on their own soil, and that the ICC should be a court of last resort. Further, he emphasized the importance of the trust fund for victims, and said that the court should not have to weigh up which cases to take due to limited resources. He believes that equipping the prosecutor’s office with the necessary funds would change the abilities of the court, and hopefully in turn improve the court’s relationship with African states. He also reflected on the crime of aggression, and said that the ASP must act wisely and through consensus activate the court’s competence. Finally, he concluded on a note of hopefulness. Senegal, he said, will continue to work to tackle impunity and to make sure the most serious crimes are never committed again. He wants a new mission to be mandated to the court – to make itself redundant. He envisages a world where the ICC is no longer needed as it will “prove that evil has been driven out of the world” and universal justice will be accepted in each and every state.

The President of the ICC gave the report on activities of the court. She spoke of the unprecedented judicial workload, and how the ASP is an excellent forum for constructive dialogue among all Member States. She said the court seeks to contribute to this dialogue and was willing to listen to all views and concerns without prejudice to its judicial independence. She reflected on the new efficiency measures. As a judicial institution the court is a distinct kind of international organization, judicial independence is integral to the functioning of the court. However, this independence should not get in the way of efficiency. She spoke of the concrete reforms put in place that are already having a visible impact in courtroom and cases e.g. the reduction required for some phases, or aspect of proceedings. Next, she said, there are certain areas upon which the court should now focus, namely the representation of victims, reparations, and legal aid. In the last three years the court has sought to improve by collective discussions to promote cohesive judicial culture and to accelerate proceedings, increase predictability, and facilitate understanding – which she admitted was difficult in multicultural surroundings. She said she hopes the judges will approach this complex court with flexibility, an open mind, and a cooperative attitude.

ICC Prosecutor Bensouda gave an overview of her Office’s work over the past year. She said that she views the ICC as a firmly rooted but still evolving institution, an independent judicial body that is unique in many ways that must work without fear or favor. She recalled that there had been successful prosecutions for three convictions in 2016. She also recalled that the Office has worked to investigate crimes in Libya, and that investigations continue with Darfur, Cote D’Ivoire, the Central African Republic, and Georgia. Further, that there are a number of preliminary investigations being conducted. She believes that the results concerning Burundi and Afghanistan are illustrative of the progress that has been made. She strongly asserted that the investigation into crimes committed in Burundi would not be hampered by their withdrawal, which will have no effect over alleged crimes committed whilst they were a state party nor on their obligation to cooperate with the court. She emphasized that the full backing of the court was integral to its functioning in light of the 15 outstanding arrest warrants and calls for greater collaboration between the Court and Member States. She concluded by saying that, on the eve of the Rome Statue’s 20th anniversary, she took the humble view that “we are not standing today at a crossroads for the future of international criminal justice – it is on the march”. The court is increasingly living up to its promise in contributing to the emergence of a law-based criminal order. It is up to states parties first and foremost as custodians of Rome statutes to stand by its values.

Finally six members to Committee of Budget and Finance were elected, and the majority of the 18 Members of the Bureau. The new President of the ASP was elected; Mr. O-Gon Kwon of the Republic of Korea will take over from President Kaba.

SECOND PLENARY SESSION

The Second Plenary Session saw the election of two out of the six ICC judges being elected. Ms. Luz del Carmen Ibañez Carranza of Peru, and Ms. Tomoko Akane of Japan were the first two candidates named as judges during the first ballot. Tomorrow will show the results of the second ballot, and this will go on until six judges have been elected.

ASP Background Briefings | Sixth Election of Judges of the International Criminal Court

The Sixteenth session of the ASP will see the sixth election of judges of the International Criminal Court. Under article 36 of the Rome Statute, six judges will be elected to serve a nine-year term. Nominations are made either in the procedure outlined in their home country for appointment to the highest judicial office, or by the procedure for nominating judges for the International Court of Justice. Candidates up for nomination are expected to be of “high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.” The candidates are organized into two groups, List A and List B. List A candidates have a special competence in (international) criminal law, whereas List B candidates have competence in relevant areas of international law. At least one judge will be selected from List A and one from List B. In regard to demographics, one candidate must be from the African group, the Asia-Pacific group, and the Latin-American and Caribbean states group.

During the ASP, there will be a secret ballot where the State Parties will vote. The judges elected to the court will be the six candidates with the “highest number of votes and a two-thirds majority of the States Parties present and voting.” When voting, States Parties must consider that judges should be of different nationalities, to represent the main legal systems, to have diverse geographical representation, and be a fair mix of men and women.

The retiring judges are Ms. Joyce Aluoch (First Vice President) (Kenya), Ms. Silvia Fernández de Gurmendi (President) (Argentina), Ms. Sanji Mmasenono Monageng (Botswana), Ms. Kuniko Ozaki (Japan), Mr. Cuno Tarfusser (Italy), and Ms. Christine van den Wyngaert (Belgium). Five out of the six retiring judges are women – two of which are President and Vice President of the Court – positions that will also be filled during this year’s ASP. Of the remaining 12 only one is a woman. This makes for an interesting election year, and in fact only three of the twelve of the nominated judges are male. The Coalition for the International Criminal Court highlights the importance of maintaining a fair gender balance on the bench, as the court sets a global example for equality. At least five female judges need to be elected to keep the current gender balance on the bench.

Candidates: List A

Mr. Rosario Salvatore Aitala, Italy

Ms. Tomoko Akane, Japan

Ms. Solomy Balungi Bossa, Uganda

Ms. Luz del Carmen Ibañez Carranza, Peru

Mr. Chagdaa Khosbayar, Mongolia

Ms. Nthomeng Justina Majara, Lesotho

Ms. Henrietta Mensa-Bonsu, Ghana

Ms. Kimberly Prost, Canada

Mr. Dragomir Vukoje, Bosnia & Herzegovina

Candidates: List B

Ms. Reine Adelaide Sophie Alapini- Gansou, Benin

Ms. Zlata Durdević, Croatia

Ms. Ariela Peralta Distefano, Uruguay

Sources

1. Sixth Election of Judges of the International Criminal Court, (Sept. 11, 2017), U.N. Doc. Resolution ICC-ASP/16/3, available at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP16/ICC-ASP-16-3-ENG.pdf

2. Rome Statute of the International Criminal Court, (1998), available at https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf

3. Coalition for the International Criminal Court, Female Candidates Sought to Fill Six Spots on ICC Judges’ Bench, Coalition for the International Criminal Court,(Apr. 12, 2017), available at http://www.coalitionfortheicc.org/news/20170412/female-candidates-sought-fill-six-spots-icc-judges-bench

The Legal Aspects of the MH17 Disaster: What Next?

By: Emma Bakkum, Research Associate, PILPG-NL

Almost three years have passed since Malaysia Airlines Flight MH17 was shot down over Eastern Ukraine, leaving no survivors of the 298 passengers. The Joint Investigation Team (JIT) has since published that the plane was shot down by a buk missile situated in Eastern Ukraine. However, no State or individual has been held responsible to date. Victims’ relatives, the Dutch State, and others continue to consider legal options. In light of this, dr. Marieke de Hoon set out the problems and consequences of different legal procedures during a public lecture at the Vrije Universiteit Amsterdam. Because a single evening is not enough to discuss all legal aspects surrounding MH17, she focused on two legal avenues available: the prosecution of individuals before a criminal court of law and the responsibilities of States under international law.

Criminal Law

The most often discussed legal avenue is criminal law, under which individual perpetrators can be held accountable for the crimes they committed. Not only those directly responsible but also those who ordered, conspired to or aided and abetted the shooting down of MH17 can be held responsible. These individuals can be prosecuted both at the national level in domestic courts or at the international level, at the International Criminal Court (ICC) or a specially established tribunal. Criminal law, however, requires a high burden of proof. Not only needs to be proven that an individual has committed a criminal act but also that the individual did so with the required knowledge and intent, making it difficult to prosecute individuals. Under the circumstances of the MH17 situation, investigations are strenuous. Jeroen Akkermans, who was one of the first investigative journalists present at the crash site, underlined the problems with gathering evidence.

While the victims’ relatives appeared to have lost faith in the Dutch government for initiating criminal proceedings, they questioned what they could do personally. Professor Arno Akkermans pointed to the high costs and difficult procedures linked to individual legal proceedings and advised the victims’ relatives to continue to rely on the government and the pubic prosecution to undertake action.

International Responsibilities of States

Not only individuals but also States violating certain international obligations could be held responsible at the international level. There appear to be strong arguments to claim that Ukraine and Russia have violated their international obligations to communicate information, to investigate allegations, and to prosecute or extradite. These claims could be initiated by States before the International Court of Justice (ICJ) or by States or individuals before the European Court for Human Rights (ECHR). However, the options for these procedures are limited and they can be very lengthy and legally complex.

Political Unwillingness Calls for Both Legal and Political Approaches

Although legal procedures could achieve further truth finding and are a step towards responsibility, they all come with their own complexities and are moreover lengthy processes without much prospect of compensation. Most critically however, are the difficulties that arise from the (political) unwillingness of States to cooperate with the investigation and prosecution. Considering this, negotiations are important, which, as De Hoon pointed out, may lead to creative solutions as they did in the Lockerbie case.

Perhaps, the audience suggested, in order to turn the tides within the coming years, a political approach instead of legal approach should be advocated for. But is politics alone an option when legal options are not successful? “Law is a form of politics” and lawyers can clarify the responsibility of States, De Hoon answered. Pieter Omtzigt highlighted the importance of politics to establish any kind of justice trough law: “negotiate with States, use public diplomacy, and take a certain position against Ukraine or Russia”. The Netherlands might have an especially strong position to do this when it is part of the United Nations Security Council in 2018. It might then be able to push for adherence to UNSC Resolution 2166 which calls upon all States to fully cooperate with the MH17 investigation.

Truth Finding

The political side of international interaction surrounding MH17 inevitably slows legal action. However, it is not a choice between either political action or legal action. Law and politics are intertwined (law is a form of politics, making politics more effective with the language of law). The question should rather be: how can we strengthen both legal and political options with each other? In the end, finding the truth is the common ground, the basis of the endeavor surrounding responsibility for shooting down MH17.

What is the Alternative?

The wishes or needs of victims’ relatives are difficult to be fulfilled with lengthy and complex legal procedures. “But what is the alternative? Doing nothing?” “We must continue to talk and discuss about MH17 and an evening like this is therefore very important to keep it on the agenda”, one of the victims’ relatives explained. Persistent attention could eventually lead to something. For this reason perhaps, some of the victims’ relatives recently expressed that they consider joining a case at the European Court for Human Rights against Ukraine for violating its obligation to close its airspace. They reiterated that the bottom line is that they cannot do nothing and sit back.

The JIT has arrived at its final and most difficult phase: identifying the actual perpetrators of the shooting down of MH17. The conversation on legal avenues to pursue can and will be continued when the JIT has identified those individual perpetrators. This public lecture has contributed to the understanding and considerations for all parties involved of the different legal avenues in response to the MH17 disaster.

For more, see Navigating the Legal Horizon: Lawyering the MH17 Disaster by Marieke de Hoon.

International crimes in Dutch Courts: Dutch Businessman Convicted for Complicity in War Crimes and Illegal Weapons Trade

By: Rosalie Dieleman & Emma Bakkum, Research Associates, PILPG-NL

On 21 April 2017, the court of appeal of Den Bosch convicted 74 years’ old Dutch businessman Guus Kouwenhoven for illegal trade in weapons and complicity in war crimes in Liberia and Guinea between 2000 and 2003. He is sentenced to 19 years of imprisonment. Kouwenhoven, in his position as Director of Operation of the Oriental Timber Company (OTC) and of the Royal Timber Company (RTC) had a close relationship with former Liberian president Charles Taylor. An investigation into his activities was launched in February 2004. Kouwenhoven was accused of complicity in war crimes and weapons trade in violation of the UN embargo in place at the time.

On 21 April 2017, the court of appeal in Den Bosch sentenced Kouwenhoven to 19 years of imprisonment for complicity in war crimes in Liberia and Guinea between 2000 and 2003 as well as illegal arms trade. The court of appeal considered the facts proven, as consistent and reliable evidence was established as a result of additional investigation and witness hearings. Furthermore, with regards to sentencing, the court of appeal noted that it took into account that the crimes committed concern “very serious violations of the principles of humanitarian law” and that the suspect played “an important supporting role” in these violations. With the sentencing decision, the court intends to signal the court’s judgement of the gravity of the crimes to the victims and their families, as well as the international legal community. The sentencing aim of general prevention is given special attention by the court, noting that “businessmen like the suspect, who trade internationally and do not shy away to do so in cooperation with regimes like that of Charles Taylor, should be warned that they can get involved in (international) crimes (against humanity)”.

Kouwenhoven is the second Dutch businessman to be convicted for complicity in war crimes, following the conviction of Frans van Anraat in 2007. Van Anraat was convicted by the Supreme Court of the Netherlands for complicity in war crimes by delivering chemicals used for the production of mustard gas to the government of Sadam Hussein in Iraq.

Kouwenhoven has, to date, denied involvement in the crimes and is deliberating whether to file an appeal to the judgment. Kouwenhoven’s lawyer, Inez Weski, already expressed her intent to start a procedure at the European Court of Human Rights. She argues that, due to Kouwenhoven’s detoriating health, detention would be a violation of the duty of care of the Netherlands as laid down in the European Convention for Human Rights.

The judgment of the court of appeals in April 2017 followed a lengthy procedure before the Dutch courts. In 2006, the district court of The Hague convicted Kouwenhoven for illegal arms trade. He was, however, acquitted for complicity in war crimes due to lack of evidence. Both the prosecution and defense appealed. In 2008, the court of appeal in The Hague acquitted Kouwenhoven of all counts, due to the unreliability of several witness statements resulting in a lack of evidence. In 2010, however, the Supreme Court quashed this judgment and determined that the public prosecution’s office had unjustly not been given the opportunity to hear two anonymous witnesses. The Supreme Court referred the case back to the court of appeal in Den Bosch, where the case was reopened on 6 February 2017.

This judgment was the second judgment in April 2017 in an international crimes case in the Netherlands, on 4 April 2017, the Supreme Court of the Netherlands came to a final judgment in the criminal proceedings against five Dutch nationals involved in the Liberation Tigers of Tamil Eelam (LTTE).