Side Event – “Justice for Syria: Universal jurisdiction as a main emerging tool to complement the International Criminal Court”

(co-hosted by Liechtenstein and European Center for Constitutional and Human Rights (ECCHR))

Overview by Abby Roberts, Research Associate PILPG NL

Highlights:

• A survivor of a Syrian detention center is in favor of the use of universal jurisdiction in his case as well as others and considers the recent arrest warrants issued a ray of hope.

• Universal jurisdiction and complementarity are especially important in the instance of Syria given the lack of jurisdiction by the ICC.

This event began in an incredibly impactful manner, with an opening speech delivered by a survivor of the Syrian war. He had been a detainee on two occasions of one of the Syrian military intelligence-run detention centers, which he referred to as the ‘slaughterhouse’ because when you are detained there, you are essentially sentenced to death. Anonymity was retained for this speaker because he still has family in Syria whom he fears for. He said that he and others like him are seeking justice for the sake of those still detained back in Syria. The survivor spoke very highly of the implementation of universal jurisdiction, as he is thrilled to be seeing concrete results in the form of arrest warrants being issued. He said that for the victims it is a sign of justice and that impunity cannot go on anymore. He believes this action is an assurance that the perpetrators have no place in Syria in the future.

Following the survivor, the head of the French War Crimes Unit detailed how, given the ICC’s lack of jurisdiction in this case, the principle of complementarity here makes perfect sense as most states parties adapt their domestic legislation to conform with the mandate of the Rome Statute. She provided the example of France, where legislation regarding torture was modified to match the Rome Statute, enabling suspects that allegedly committed crimes against humanity and war crimes to be prosecuted in France if they are on French territory. She explained the purpose of this is to prevent perpetrators of these crimes from escaping justice by hiding in France. She also spoke to France’s newer endeavors, such as exploring avenues for witness protection and the joint investigation team that was recently established between France and Germany.

Next to speak was Ms. Marchi-Uhel, head of the International Impartial and Independent Mechanism (IIIM) for Syria. She opened by speaking about the sheer amount of evidence that has been gathered in this case, as there are more hours of video documentation than there have been hours in the conflict. She then asserted the arrest warrants issued by Germany and France for the alleged acts of torture are sending the first signal of hope that the victims’ suffering has not been unnoticed and will not go without responsive action.

Then the floor was given to Patrick Krocker with ECCHR. He is a part of the International Crimes and Accountability program where he is responsible for ECCHR's work on Syria. He began by discussing the emergence of universal jurisdiction as it relates to ECCHR’s previous body of work. Using Germany as a successful example, he credited their success to their war crimes unit and use of universal jurisdiction. He then spoke on the ICC, which he described as “...strengthening the whole system of international justice”, and finally expressed his favor for states (re)instating their universal jurisdiction law. 

The panelists were asked the following questions: how has your organization dealt with the varying needs of representative inclusion? What is the impact of the work inside Syria? What strategies are you working on the make sure your work is engaging people within Syria, and what can the people in this room do to help?

The survivor spoke to the second question by responding that many people were wondering why it was worth it to prosecute in Europe rather than closer to home, but are now seeing the utility of the prosecutions in light of the arrest warrants. For him, this speaks to there being no more future for these people in Syria. Now that perpetrators are named it is not acceptable to have them in future regimes, and this provides hope that these violations won’t happen anymore.

The head of the French War Crimes Unit responded to the last question by noting that there is a balance that has to be found between communication with the victims and protecting the viability of the investigation/potential for prosecution. Patrick Krocker also responded to the last question on behalf of the ECCHR. On inclusiveness, it is important for them that they see themselves as ‘co-claimants’ or translators, they open the door for the victims that want to come forward. ECCHR also uses a different methodology for representing the survivors depending on the involvement they want in the prosecution, so they can be as involved as they feel comfortable with. Ms. Marchi-Uhel added that the IIIM has also implemented a victim-centered approach, as you cannot assume you know what victims want or how involved they want to be.

Side Event – “Hard Law Obligations, Atrocity Crimes and the Veto” (co-hosted by Costa Rica, Liechtenstein and the Netherlands

Overview by Cleo Meinicke, Research Associate PILPG NL

Highlights:

• Jennifer Trahan, researching the legal limits to the use of the veto power of the Permanent Members (P5) of the UN Security Council in the face of genocide, crimes against humanity or war crimes, argued that the main problem is that “we treat veto as above law, for which no explanations are required.” On a positive note, she stated that since two decades there is agreement that vetoes for atrocity crimes are problematic.

• Justice Richard J. Goldstone attended the panel discussion and supports the idea of limited veto powers in the face of genocide, crimes against humanity or war crimes. 

Co-hosted by Costa-Rica, Liechtenstein, and the Netherlands, this side event was based on research by Jennifer Trahan, Clinical Professor at NYU Center for Global Affairs,on legal limits to the use of the veto power of the Permanent Members (P5) of the United Nations Security Council (UNSC) in the face of genocide, crimes against humanity or war crimes. 

Moderated by Anna Myriam Roccatello, deputy Executive Director and Director of Programs of the International Center for Transitional Justice, the panel consisted of representatives of the co-hosts including H.E. Sergio Ugalde, Ambassador of Costa Rica, and H.E. Paul van Ijssel, Permanent Representative of the Netherlands to the ICC and OPCW, as well as Justice Richard Goldstone, Jennifer Trahan, James Goldston, Executive Director of the Open Society Justice Initiative, and David Donat-Cattin, Secretary-General of Parliamentarians for Global Action. 

H.E. Ugalde opened the discussion by asking the question why the concept of veto powers is promoted even in cases where it might contradict general international law and in particular ius cogensnorms. Holding international criminals accountable is a well-accepted international practice that is supported by opinio jurisand constitutes a principle of international law. Thus, a veto preventing the UNSC to act in the face of genocide, crimes against humanity or war crimes can be considered a breach of international law. He explained the acceptance of this practice with politics and the current power imbalance on the international level. 

H.E. Van den Ijssel provided the perspective of the Netherlands on the issue. The Netherlands is strongly against ignoring events of mass atrocities and Van den Ijssel stressed the responsibility of the international community for the protection of civilians, whose government failed to do so. 

Justice Goldstone provided an overview of the past use of veto powers. He referred to the actions by the P5 with regard to the apartheid in South Africa. There the U.S. and the U.K. blocked several requests for intervention. Similarly, in 1994 at the outset of the Rwandan Genocide, France and the U.S. threatened to veto resolutions. Justice Goldstone highlighted the power threats of vetoes can have. The opinions of the P5 on certain topics are well known and resolutions are often not even drafted or referred to the UNSC. The use of veto powers however, according to Justice Goldstone, could be curbed if the requests for resolutions go public and where they concern a strong and clear moral imperative. 

Following Justice Goldstone’s insights, Jennifer Trahan introduced her research, which formed the basis of the panel discussion. She argued that the main problem was that “we treat veto as above law, for which no explanations are required.” On a positive note, since two decades there has been agreement that vetoes for atrocity crimes were problematic, and two permanent members have already adopted this idea. 

In her research she addressed three main issues. First, the contradiction between on the one hand classifying the prohibition of core crimes as ius cogensfrom which no derogation is allowed, and on the other hand the power of the P5 to veto resolutions concerning atrocities. Second, the ability to allow vetoes on atrocity crimes is in contradiction with Article 24(2) of the UN Charter, which prescribes that the UNSC “shall act in accordance with the Purposes and Principles of the UN.” A veto restricting reaction to atrocities goes against the principle of the maintenance of international peace and security. Third, the veto powers contradict foundational treaties the P5 are parties to, such as the Genocide Convention. Even though the Charter can outweigh treaties, this should not apply to foundational treaties in the panelist’s opinion.  

James Goldston reiterated the points raised by the previous panelists and added that a way to restrict the power of the P5 in cases concerning atrocities would be to accept one veto in the presence of at least nine positive votes in the UNSC. 

Lastly, David Donat-Cattin, agreeing with the other panelists that the ultimate goal should be to restrict veto powers with regards to atrocities, pointed out that due to the difficulty of this project short-term actions should be considered as well. Those actions include the Arria-Formula meetings, which are informal gatherings of UNSC members where private exchanges of views are possible, but also the “Uniting for Peace” resolution, which provides for the General Assembly to consider matters that are not worked on in the UNSC due to the members’ unanimity. Moreover, the International Impartial and Independent Mechanism (IIIM) to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in the Syrian Arab Republic, adopted by a UNGA resolution, is a useful mechanism to address atrocities committed in Syria at the moment. Then there are also tools such as compelling the UN to become more proactive in the shaming and encouragement of states. All those alternative methods can have a strong cumulative effect on the actions taken against atrocities according to Donat-Cattin. 

Questions were raised concerning the management of expectations attached to the idea of restricting the veto power and who would be responsible to determine whether there was a breach of international law by a permanent member of the UNSC. Expectations in international law are widely disappointed and this can be countered according to Donat-Cattin by learning more about what the expectations of the victims are. Most discussions are held between international lawyers, but the inclusion of victims and other civil society actors is important to understand their expectations and tackle the problem of disappointment. Concerning the determination of a breach, the International Court of Justice may be a valuable tool even though this requires a state to bring the case to the Court. 

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.