Side Event – “The case for survivor-centered justice: Policy issues and challenges” (hosted by the Institute for Justice and Reconciliation)

(co-hosted by Costa Rica, Liechtenstein and the Netherlands)

Overview by Isabella Banks, Research Associate PILPG NL

Highlights:

• Since the Rome Statute entered into force, both States Parties and victims have had outsized expectations about what the International Criminal Court (ICC) can achieve.

• The ICC can and should listen to victims and take their views into consideration by democratizing their participation in international criminal justice. 

• Incorporating a retributive element to traditional and restorative approaches to justice may make them more appropriate and meaningful for victims of atrocity crimes, according to Dr. Roestenburg. 

• Financial and psychological empowerment can help survivors of sexual violence overcome stigma and become agents of change.

Hosted by the Institute for Justice and Reconciliation (IJR) and moderated by Project Officer Niv Bachu, this side event aimed to explore challenges related to survivor-centered justice. These include questions such as: What differentiates a victim from a survivor? What should be done with perpetrators who are also survivors? Is prosecution the most effective tool available to survivors of mass atrocity? How can civil society practically and effectively administer justice to survivors of mass atrocity?

Ms. Bachu introduced the speakers: Phakiso Mochochoko, Head of the Jurisdiction, Complementarity, and Cooperation Division at the ICC; Dr. Helen Hintjens, Assistant Professor at the Institute of Social Studies; Ingrid Burtenberg, Senior Researcher at the IJR; and Malini Laxminarayan, Programme Officer at the Denis Mukwege Foundation in The Hague.

Before giving the speakers the floor, Ms. Bachu provided background on information the IJR. The IJR was launched in Cape Town, South Africa in 2000, in the wake of the Truth and Reconciliation Commission (TRC). Today the institute explores projects and partnerships that help to build fair, democratic, and inclusive societies in Africa. Its mission is to enable communities to promote reconciliation and apply human-centered approaches to socio-economic justice.

Mr. Mochochoko spoke first. In his role as division head at the ICC, Mr. Mochochoko focuses on cooperation as well as complementarity. As someone who was closely involved in negotiating the Rome Statute, he shared that he was struck by how early in the process the notion of complementarity was agreed upon by the States Parties. It helped to assuage widespread state concerns about sovereignty and the implications of a supranational body.  He explained that the principle of complementarity is applied in two ways: 1) in preliminary examinations to assess admissibility; and 2) in the investigations, to coordinate with national systems and try to ensure that lower-ranking perpetrators are prosecuted in addition to the high-level perpetrators that the ICC focuses on.

Mr. Mochochoko explained that complementarity has so far not operated in the way that is supposed to according to the Statute. He stressed that the question should not be “what is the ICC doing about this?” but rather “what are the national institutions doing about this?” In other words, the ICC has been treated as a court of first instance when it should be a court of last resort. He pointed out that no one imagined the issue of self-referrals, and called upon the international community to return to the principles envisaged in the Rome Statute.

He added that with regard to the criticism received about the duration of preliminary examinations, the ICC tries to encourage states to actively investigate and prosecute as is envisaged under complementarity but that it has not been particularly successful in this. He outlined a number of challenges: 1) lack of political will on the part of states; 2) lack of state resources, which the ICC cannot assist with; 3) state claims of lack of capacity, which the ICC also cannot assist with. The ICC is currently urging states to enhance their own judicial capacity through bilateral agreements or rule of law programs – something that Ms. Bachu pointed out the IJR may be able to assist with. He concluded with the remark that states do not seem to understand how complementarity is intended to work.

Dr. Mark Kersten spoke next, focusing on participation and engagement with victims in international criminal justice. From the outset, he noted that he does not purport to speak on behalf of victims and survivors. He argued that the ICC can and should listen to victims and take their views into consideration by democratizing their participation in international criminal justice. He criticized the tendency to speak about victims as a singularity with singular desires, noting the wide range of victims’ views towards the ICC. He stated that more attention should be paid to the core motivations of these individuals and that the reality that they are likely mixed is not something the ICC should run away from.

He noted that the existing literature on victim disenchantment with the ICC is overwhelmingly written by European or American authors and that their presumption to represent victims is problematic. He further questioned whether this “blame game” was beneficial to the victims themselves and proposed that perhaps a collective apology for letting them down would be more meaningful. He questioned why, for example, victims who are skeptical of the ICC and have fair critiques to bring to the table are not given a platform at the Assembly of States Parties (ASP). He suggested that their participation could be particularly valuable for alleviating tensions and minimizing negative impacts around the peace vs. justice debate. 

Dr. Kersten observed that international criminal justice stakeholders have a tendency to subsume victims into one category (victims of mass atrocity) that has one solution (justice before the ICC). This can be insulting to victims who have different ideas about how post-conflict justice should look. He pointed out that there are interesting possibilities that account for the varied interests and motivations of victims. In particular, he advocated for creative sentencing options that bridge the gap between retributive and restorative justice. He highlighted Colombia’s efforts to consider rehabilitation of FARC perpetrators and reconciliation with affected communities in sentencing. He also suggested that the Ongwen case could be an opportunity to incorporate participatory traditional justice practices in sentencing. Victims could also be engaged more at the preliminary examination stage.  Lastly, he stated that the ICC should not assume that victims are opposed to ICC justice.

Dr. Roestenburg-Morgan then introduced her research on the extent to which restorative and traditional mechanisms can benefit survivors of mass atrocity. She began by establishing that there is a presumption that justice is by nature retributive, but that if you look at post-conflict societies, you see a more complex picture. Prosecutions can de-stabilize a region and holistic systems of justice are often advocated. In Africa in particular, one sees a plethora of justice mechanisms, many of which are restorative (such as truth commissions) or traditional (such as Mato oput). She noted that traditional justice mechanisms can be quite valuable in terms of cost effectiveness and capacity to promote healing. Proponents also highlight their participatory nature, which can lead to meaningful engagement between victims and perpetrators as well as a greater emphasis on truth-telling.

In investigating whether such mechanisms are adequate measure for survivors of mass atrocities, Dr. Roestenburg found that they can only be effective if a retributive element of prosecution is included in their broader framework. She posited that this is due to the unique gravity, scale, and manner in which atrocity crimes are committed. Furthermore, states have an international obligation to prosecute which they cannot merely forego. Finally, it is sometimes implicit in restorative justice mechanisms that the victim must forgive the perpetrator, and this is not something that many victims of atrocity crimes are willing to do. She concluded that traditional and restorative justice mechanisms may need to be modified in order to fulfill the “genuineness requirement” under the Rome Statute, and that states should have minimum due process standards in place for atrocity crimes.

Dr. Hintjens opened with a critique of the notion that “just because justice takes a long time, it will never happen.” She also criticized the widespread use of the term “survivors,” explaining that she found it to be a far too fluid, catch-all term for atrocity crimes – particularly when used to describe perpetrators. She then raised the question: to what constituency do displaced victims belong? She described the work of her colleague Jackson Odong of the Refugee Law Project, who is currently setting up a museum in Gulu, Northern Uganda, on the topic. The purpose of the museum is to invert the assumption that crimes are always committed in a clearly-defined place against victims with access to local justice mechanisms.

Dr. Laxminarayan spoke last, summarizing her survivor-led work at the Denis Mukwege Foundation. She explained that with conflict-related sexual violence, stigma is pervasive and the first step for survivors is therefore to break the silence about what happened to them. Because of this, the Foundation views justice in terms of truth and recognition and works to empower survivors to become agents of change. Survivor empowerment can be financial (taking the form of reparations, education, livelihood programs) or psychological (initiatives that help survivors become leaders and speak out against violence and gender inequalities).  

Dr. Laxminarayanalso introduced the global survivor network, which was created in resistance to top-down, non-participatory approaches to conflict-related sexual violence.  She noted for example that the network was dissatisfied with the report on conflict-related sexual violence published by the UN Secretary General earlier this year. The network works to connect survivors of sexual violence in 20 countries with the goals of: building solidarity; breaking the silence; exchanging knowledge; documenting the past, and advocating for their rights. Within the network, there is a focus on sharing statements of support.  

A question from the audience entailed whether victim expectations might be unfairly raised by survivor-centered justice initiatives at the ICC. Mr. Mochochoko replied that from the moment the ICC opened, victims were communicating with the ICC about what the Court could do for them.  For example, he noted that the victims who the ICC interacts with are often living in very poor conditions and expect the Court to assist them with this, despite the fact that this is beyond the scope of the Court’s work. In conclusion, he suggested that victim expectations would be high regardless of these survivor-centered initiatives. Dr. Kersten agreed that the ICC can never reach what he called the “goldie locks standard” (referencing Darryl Robinson’s paper, “Inescapable Dyads: Why the ICC Cannot Win”) with respect to a the range of issues it is expected to address.

Side Event – “Presentation of a video documentary, “The Prosecutors”

The Prosecutors - Film excerpt screening on prosecution of sexual violence in Bosnia and Herzegovina, Colombia, and the Democratic Republic of Congo”

(co-hosted by Chile, Costa Rica, Norway, ART WORKS Projects and Open Society Foundation)

Overview by Annelou Aartsen, Research Associate PILPG NL

Highlights: 

• “The Prosecutors” tells the story of three lawyers who fight against impunity of sexual violence in their country. 

• The documentary has a powerful message: that justice is being done.

The event was co-hosted by Chile, Costa Rica, Norway, ART WORKS Projects and Open Society Justice Initiative. During the event the documentary “The Prosecutors”, directed by Leslie Thomas and produced by ART WORKS Projects, was showcased. This was followed by a panel discussion consisting of Leslie Thomas, legal gender expert Daniela Kravetz, and Senior Project Manager for the Open Society Justice Initiative Eric Witte. 

“The Prosecutors” tells the story of three dedicated lawyers who fight against impunity for sexual violence committed at times of war. The documentary is filmed over five years in three states, the Democratic Republic of Congo, Colombia, and Bosnia Herzegovina, all facing a long journey towards justice. 

The case of the DRC starts off with the testimonies of victims of sexual violence. All allegedly committed by military troops. The documentary portrays how 39 military members are accused guilty, however, only 2 are convicted with the war crime of rape. Something which seems unbelieve considering that there are 150 cases of rape recorded. 

The case of Colombia demonstrates how sexual violence was implemented as a weapon by the AUC paramilitary forces (Autodefensas Unidas de Colombia). It showcases the prosecution of Marco Tulio Pérez Guzman, referred to as ‘el Oso’, who as the leader of the paramilitary forces was responsible for the systematic abduction and abuse of Colombian women. 

Related to the case of  Bosnia and Herzegovina the documentary notes that the majority of the victims of sexual violence have not come forward because too often justice has not been served. A practical issue the prosecution faces in Bosnia and Herzegovina is that the only witnesses are often the victims of rape. 

During the panel discussion following the documentary diverse issues were discussed. Amongst others, the producer was asked why she decided to make this movie. Leslie Thomas explained that she got inspired during a conference by those working and striving for justice. Additionally, she stressed some aspects of the documentary which she finds interesting. According to her, the documentary is able to demonstrate the use of sexual violence as a tactic employed by paramilitaries. In particular, the impact the use of sexual violence can have in terms of controlling a certain population. Another aspect highlighted by the producer is the powerful message the documentary sends to the victims. It is able to demonstrate that justice is being done. Something which is important for other countries who still need to find their ways to justice. According to Thomas, the movie was made for three reasons: to speak to policy makers, to stakeholders, and to the people who vote. To make them aware for their global responsibility to provide for justice. 

On a more general note, the panel addressed some lessons learned from post-conflict societies fighting for justice, which can be used for other countries that are going through similar processes. The panel highlighted the need for making sure that people understand what justice means, in addition to the need for providing for trial defense. Lastly, the judicial mechanisms which are set up need to have strong oversight to ensure the judicial process can run efficiently and continuously. 

Beyond these general lessons, the panel noted that often tradeoffs need to be made. There is for example a preference for local justice, however at times it is not possible to provide for justice locally due to security issues. Another issue which often needs to be decided on is whether to include internationals within the judicial mechanism such as judges or prosecutors. Sometimes this is necessary due to the destabilized nature of the national judiciary. Trust lacks within the national system, and therefore international actors can serve as objective actors.

The panel concluded that this “The Prosecutors” reminds us why we fight for justice and why this work is so important. The documentary is one which inspires. The trailer and the upcoming screenings of the documentary can be found here: http://www.theprosecutorsmovie.com/.

Side Event – “The Gbagbo-Blé Goudé and Jean-Pierre Bemba trials: crossviews and possible impacts on Côte d’Ivoire, the DRC and the CAR”

(co-hosted by the Ivorian Observatory for Human Rights and the Institute for Security Studies)

Overview by Sally Eshun, Intern PILPG NL

Highlights:

• A very insightful event on the relationship between the ICC and the countries in which it has been most active in the past years. 

• The panelists assessed and compared the Gbagbo & Blé Goudé case and the Bemba case, considering the latter’s acquittal in June 2018. They shed light on the impact the two cases and the general work of the ICC has on the local populations in the DRC, CAR and Côte d’Ivoire. 

As an introduction, Alan Ngari, researcher at the Institute for Security Studies (ISS), pointed out the similarities in both cases and raised the concern that the outcome in the Blé Goudé case might be the same as in the Bemba case. He said that the outcome which resulted from the errors of the Appeals Chamber in the Bemba case on the issue of admissibility with respect to some of the charges, have the potential to be repeated in the Blé Goudé case now that the defence counsel has submitted the “no case to answer” motion. Mr. Ngari put emphasis on the impact the ruling can have on reparative justice for victims in Côte d’Ivoire. With the Bemba experience in mind, he pointed out that the potential for them to be let down is great due to the fact that there is no reparations available when a case is acquitted. 

Hyacinthe Gbiegba, who discussed the socio-political impact of the Bemba acquittal, tackled the topic of reparations of victims in the Central African Republic (CAR). He mentioned that there have been national efforts to provide reparations to the victims together with the UN Development Programme (UNDP). Concerning the political consequences of the Bemba acquittal, it was mentioned that victims in the CAR expected that Bemba would be sentenced and were surprised by his acquittal. Victims did not understand the acquittal when he was simultaneously sentenced for witness tampering. According to Mr. Gbiegba, victims were wondering whether the judges’ decision was politically motivated or whether they did not have all the information. He noted that the acquittal harmed the ICC’s reputation in the CAR, which is unfortunate keeping in mind the ongoing conflict. 

Paolina Massidda, the legal representative for the victims in the Blé Goudé case, commented on how in both cases justice for vicitms is lacking. Victims in CAR were very committed to the case, as seen by the high number of victims participating in the trial. Mr. Massidda noted that the people of Côte d’Ivoire already feel let down by the Ivorian government, so the reputation of the Court is closely connected to the outcome of the case. Mr. Massidda closed by stating that he hopes that command responsibility under Article 28 of the Rome Statute will be interpreted differently under the circumstances of the Blé Goudé case as opposed to the Appeals Chamber not seeing a sufficient link between the crimes committed and Bemba’s position as a commander in his acquittal.

The consensus among the panellists was the ICC’s need to take a victims-centred approach, also when it comes to outreach in the respective countries for the Court’s own sake and credibility. 

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.