Side Event– Nigeria and the ICC: Addressing (Non) - Accountability (hosted by Amnesty International)

Overview by Cleo Meinicke, Research Associate PILPG NL

Highlights:

• Amnesty International urged the ICC to open a formal investigation in Nigeria, “every day you continue to ignore what happens you are losing leverage to deter crimes.”

• The OTP continues to assess the admissibility of the case, considering initiated proceedings by the Nigerian government. 

• The Nigerian government should engage more with civil society, according to Chinonye Edmund Obiagwu and Abiodun Baiyewu-Teru. 

The side-event hosted by Amnesty International (AI) was based on its recently published report “Willingly Unable: ICC Preliminary Examination and Nigeria’s Failure to Address Impunity for International Crimes.” The report highlights the organization’s critical view on the ICC OTP’s preliminary examination in Nigeria and the ability and willingness of the Nigerian government to respond to crimes committed by Boko Haram and Nigerian security forces. The ICC’s preliminary examination was opened eight years ago and is still on-going. The Court identified the commission of core crimes, but AI is of the opinion that “it is time for the OTP to open a formal investigation in Nigeria.”

Netsanet Belay, program director Africa of AI, introduced the report. The report highlights the need for the ICC to take a next step based on information the organization collected on the ability and willingness of the Nigerian government to investigate and prosecute grave crimes committed in Nigeria. AI analyzed official documents in relation to domestic data. Beyond the documents, AI engaged with people, the special board of inquiry and the presidential panel, which shared their sources and documents. They also examined 179 Court documents, as well as reports related to the “mass Boko Haram trials” that started in October 2017. Moreover, AI interviewed detainees and upheld communication and information exchange with the Nigerian authorities. 

AI’s report covers two inquiries set up by the Nigerian authorities. The Special Board of Inquiry (SBI) and the Presidential Investigation Panel to Review Compliance of the Armed Forces with Human Rights Obligations and Rules of Engagement (PIP). Despite these efforts by the Nigerian government, AI’s research revealed that the design of these inquiries was never planned or intended to result in criminal investigations or prosecutions. The government was unable to achieve any investigations or prosecutions. Concerning the Boko Haram mass trial, the report displays the arbitrariness of arrests and shows that the majority of those arrested were acquitted. Further, the charges brought against the suspects were for minor offenses rather than the commission of international crimes. Because of these reasons AI argues that there is no real attempt of taking steps by the Nigerian government. “Victims are still awaiting justice, truth is yet to be discovered.” 

In response to AI’s findings, Claus Molitor provided insight from the perspective of the ICC. He is a situation analyst in the Jurisdiction, Complementarity and Cooperation Division of the OTP. Mr. Molitor first explained why it takes the OTP so long to conduct the preliminary examination. Nigeria is a very complex situation, as it is an ongoing conflict, where the OTP has several situations or cases to consider. Because there have been efforts by the government, these have to be assessed and evaluated, which takes time. Especially considering limited resources at the OTP. Mr. Molitor mentioned that they have found that crimes are being committed and that the evidentiary threshold is met. Because it is an ongoing conflict, they however have to assess newly committed crimes as well. The OTP is now at the stage to assess admissibility. Since the Nigerian government initiated proceedings, the ICC assesses these at the moment. The Nigerian authorities are helpful and cooperative in the investigation, Mr. Molitor noted. In response to AI’s question for a timeline, Mr. Molitor responded that the ICC does not have set timelines but progressive steps are taken. 

The next two speakers provided insights from a local perspective. Abiodun Baiyewu-Teru, who works at Global Rights Nigeria, stressed the question whether Nigeria even has the capacity for forensic investigations into the international crimes. She claimed that Nigeria “perfected the art of motion without movement.” The government set up panels and parties and conducted trials, which are however in her opinion clearly sham trials. People are arrested but there is no fair process and many are tortured into pleading guilty to get out of prison earlier. Furthermore, she criticized that while civil society attempts to work with the government, the government does not extend the level of sincerity back. Members of civil society are often harassed or arrested due to ongoing intimidation in Nigeria. According to Baiyequ-Teru people providing support in the investigation of crimes and to the victims are at risk of being considered an enemy by the government. 

Chinonye Edmund Obiagwu, who worked as president of Nigerian National Coalition for the ICC and founded the Legal Defense and Assistance Project (LEDAP) in Nigeria, reiterated Baiyequ-Teru’s point that the government should spend more time on engaging with civil society. Concerning the accusation of sham trials, he provided insights into the trials. His organization provided legal assistance to victims and they published a report to make suggestions for the improvement of these trials. They raised issues and cases, where there were obvious violations of basic rights of victims and a fair trial was precluded. Most victims meet their lawyers only in the courtroom and legal interpretation is not provided. According to Obiagwu the judges do their best but they are not trained or used to those cases. He also agrees with AI that Nigeria shows to be unwilling and unable to prosecute the crimes. There may be willingness on the side of the government, but he argues that there is clearly no ability of the government to prosecute high commanders especially. 

Lastly, a video of Hamsatu Allamin was screened. Ms. Allamin is the regional manager of Nigeria Stability and Reconciliation Program and the national executive member and coordinator of Federation of Muslim Women’s Associations in Nigeria. Her video provided an insight into life in Nigeria under the threats of Boko Haram but also by the military. She started her speech with background on the Boko Haram and its uprising and talked about the situation of women in Nigeria, facing slaughtering and arrests, despite the government claiming that Boko Haram is defeated. 

When the discussion opened up to the audience Bettina Ambach, Director of the Wayamo Foundation, raised the idea of using milestones to be reached in the future. Mr. Molitor however reacted to this comment that milestones are a good idea but easier said than done. Further questions were raised concerning capacity building to which Mr. Belay and Mr. Obiagwu assured that there are many capacity building initiatives, passionate lawyers and cooperation with organizations such as UNODC. Nevertheless, more capacity building was very much welcomed by the panel. 

At the end of the side event a member of the Nigerian government commented that the issue is important to the Nigerian government and that it agrees that capacities have to be built up. In his view there was evidence of political will to hold perpetrators accountable and the government is eager to continue to partner with organizations, such as the Wayamo Foundation. 

The side event was concluded with a shared hope that Nigeria will see justice and that participants at next year’s ASP will be able to look back at achievements. 

Side Event – “The role of ICCBA in supporting and enhancing complementarity” (co-hosted by France, Senegal and the International Criminal Court Bar Association (ICCBA))

Overview by Filipe Gomes Dias Costa, Research Associate PILPG NL

Highlights: 

• Judge Chung reflected on the possibility of having ad hoc judges from the internal legal systems of states during the pre-trail phase of an ICC case.

• National jurist are often not experienced in the field of international complementarity, which can have an effect on the handling of evidence. 

• The Central African Republic and Colombia were mentioned as case examples for positive complementarity.

In this side event co-hosted by France and Senegal, the International Criminal Court Bar Association (ICCBA) introduced a panel with members from the ICCBA, the OTP, and the ICC Registry to address the issue of complementarity as a core value of the ICC system as well as the role the ICCBA may play in order to support and enhance positive complementarity. The ICCBA was founded in 2016 to represent List Counsel and their staff working for victims and defense at the ICC. 

The panel was kickstarted reiterating the role of Article 94 of the Rome Statute as a mechanism to ensure fair trial and complementarity. The panel noted that whenever justice is closer to the victims, it is more meaningful, which further aligns with the cornerstone of complementarity in the ICC.

Dr. Matthew Gillet, Trial Lawyer of the OTP and Director of the Peace and Justice Initiative, took the floor to address the situation in the Central African Republic (CAR) as a crucial case study on the role of complementarity. In this regard, since the CAR is facing impactful structural problems, the viability of ensuring a fair trial is increasingly unlikely. However, CAR has been conducting several trials, although some witnesses have refused to attend them due to security concerns. Furthermore, he noted the good relationship between the OTP and the Special Criminal Court for the CAR and the common efforts in order to provide appropriate training for the staff engaged in such initiative. The institutions are on the verge of establishing a Memorandum of Understanding to further develop new joint activities.

Marc Dubuisson, Director of the ICC’s Division Judicial Services, gave a practical speech focusing on how to implement complementarity. Accordingly, he outlined Article 59 of the Rome Statute as the main element to gauge whether the establishment of complementarity is working in a particular case. A major challenge faced by this system is that a national jurist is often not experienced in the field of international complementarity. This is highlighted in the situations in which the OTP may provide evidence to national authorities insofar it is hard to determine if this evidence are going to be handled properly in the case in matter.

As the final member of the panel, Dr. Rod Rastan, legal adviser of the OTP, underscored that it is the common wish of the OTP for the national systems to properly work in order to attain the desired goal of complementarity enshrined in the Rome Statute. In this regard, Colombia constitutes a crucial example in how to address these matters appropriately at the national level. 

Albeit outside the panel, Judge Chung remarked the importance of positive complementarity for the future of the ICC. Accordingly, the three elements of fairness, transparency, and efficiency are key to any proper judicial system. In his view, efficiency may be lacking in the ICC. Furthermore, he proposed that the ICC should develop a model law to better guide states in implementing the complementarity elements of the ICC system into their own legal systems. In this sense, he acknowledged the need to reflect upon practices of hybrid tribunals and pondered having ad hocjudges from the state in which the investigation is taking part in order to strengthen the link between the enforcement of justice in the distant city of The Hague to the dynamics and particularities of each state.

The representatives of Uganda and Venezuela manifested their support for the discussion brought by the panel. Most notably, Venezuela questioned the absence of a bigger role for the defense within the procedures of the ASP. Additionally, it was remarked that for some Latin American states, it can be quite innovative and confusing to assess representatives for the victims and the defense in the same institution, which may lead to misleading situations on the states decision-making on matters such as the budget of the Court.

Side Event – “Victims at the Heart of Justice: Reflections on Victims’ Participation at the ICC”

(co-hosted by the State of Palestine, the United Kingdom and the International Federation for Human Rights (FIDH))

Overview by Lea Schwagereit, Research Associate PILPG NL

Highlights: 

• Participants agreed on the need for a collective system for victims to apply for participation, similar to collective representation.

• Panelists pointed to the dire situations for victims participation in Afghanistan and Bangladesh/Myanmar. 

The event focused on a report launched by FIDH on victims’ participation, which was argued to become a central focus of the ICC proceedings. Karine Bonneau, director of the International Justice Desk at the International Federation for Human Rights (FIDH) opened the event by stressing the importance of victim participation as a source of evidence that the ICC proceedings heavily rely upon. FIDH’s report places victims’ participation at the heart of judicial proceedings. The Rome Statute grants victims the right to participate in proceedings where their personal interest is affected. This feature of victim participation is considered one of the most innovative features of the Rome Statute as it it grants victims the right to participate in international criminal proceedings for the first time in international criminal justice. 

Gilbert Bitti, Senior Legal Advisor of the Pre-Trial Division at the ICC, reflected on lesson learned from the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the importance of victims’ participation in trials. He cited the President of the ICC stating that “the court ensured that victims voices are heard and puts them at the heart of the proceedings”. But many problems remain, such as the lack of information about the ICC, access to the court, and thereby the right to participate. He acknowledged the importance to provide victims with (at least) a minimum of information. He further pointed to the improvements made, such as the new application form which was changed from 17 pages to only 1-2 pages. He argued for a collective system to apply and further argued that victims should be treated as parties (entitled the same rights as the parties to the process). It is moreover key that victims are entitles to choose their legal representation.

Wayne Jordash QC from Global Rights Compliance, which is representing the interest of over 400 women and girls, victims of the crimes committed against Rohingya in the situation Bangladesh/Myanmar, underlined the importance for victims to be able to communicate with the Court and submit information even if they are not recognized as victims (yet), as there was a degree of procedural uncertainty on victims’ participation during the preliminary examination process. Myanmar continues to insist that no crimes have been committed. While the Prosecution argued that since the examination was initiated by the OTP and not by a UN Security Council referral pursuant to Article 93 victims are not entitled to make submissions, the Pre-Trial Chamber was of the opinion that victims do have the right to make submissions for the preliminary examination. The attempt to exclude victims at the state of preliminary examinations might stem from an anxiety that too many victims may have a right to participation and become a challenge for international trials. The real problem is not that they will delay proceedings but that they have no information, no access to justice, and eventually risk having no voice at all in this.

With regard to the Afghanistan situation, the preliminary examination of the case took 10 years. When thinking about the purpose of the ICC and its deterrent role, this should not be acceptable, Katherine Gallagher (Center for Constitutional Rights), representative of victims of the situation in Afghanistan, stated. Over this long period of time, more people are victimized. While there has been limited outreach form the ICC, several victims have been collected from states that are parties to the Rome Statute, she described. Therefore, the ICC should be more concerned about the crimes committed by the U.S. The panelist furthermore questioned the cooperation between the ICC and NATO with regard to information in the Afghanistan case. Furthermore, collective representation could be a solution, yet funding for it is necessary. This can further create a victims’ narrative what the court should include in their indictment (e.g. include forced disappearance). 

Anushka Sehmi was involved in victim participation in the case against Ongwen as a legal representative. In 2015, he consulted with 700 victims on ceasing investigations in the Kenyatta case. He noted that the right to truth, justice, and reparation have not been insured in this case. Even after the collapse of the case, victims are still entitled to assistance form the court, he argued. But instead, State Parties have looked the other way, the referral to the ICC has been ineffective, and their duty to communicate to provide assistance to the victims has been neglected. In the meantime, victims have passed away and thereby remained invisible to the ICC. 

The event was concluded by a comment by the co-hosting state of Palestine. The representative stressed the importance to take a stand for victims. For him, the presented eye-opening statements were discomforting: to see the amount of difficulties that are put in front of victims to gain justice. He urged for increasing the sharing of information to increase access to justice. He further stressed not to exclude the financial aspects of victims’ participation. 

Side Event – “Déclaration de Paris sur l’efficacité de la justice pénale internationale” (hosted by France)

Overview by Phedra Neel, Research Associate PILPG NL

Highlights:

• The drafters of the Paris Declaration explained the importance of some of the proposals of this Declaration in order to enhance the effectiveness and consistency of international courts and tribunals.

• Importance of planning and managing of proceedings as well as continuing education of judges were underlined.

Mr. Leurent, Director of the French National School for the Judiciary, opened the session with stating that we must come together and find means to counter all the attacks and criticisms on the ICC and international criminal law (ICL) in general. The Paris Declaration on the Effectiveness of International Criminal Justice includes recommendations to increase the efficiency of the international tribunals and courts. It strives for some kind of uniformity regarding the proceedings of the different international tribunals and courts. The Paris Declaration was developed by experienced representatives of these international courts and tribunals in October 2017 with the aim to take the best from both common and civil law systems, including topics such as predictability, expediency, and governance.

Ms. Trendafilova, President of the Kosovo Specialists Chambers, mostly focused on the role of judges in planning and managing proceedings. Drafting a planning of the proceedings will make these more predictable for all those involved or interested. This planning would have to be created in agreement with the parties involved. It is also important that judges have a common understanding on the approach of admissibility of evidence: will they be presented all at once or piece by piece? Lastly, it should be prevented that the trial chamber has to do all the work the pre-trial has done again.

Ms. Prost, ICC Judge, clustered her points around three topics, the first one being management. Judges must see themselves as managers with respect to managing the proceedings, managing the staff, and managing the limited recourses, she said. This of course will have to be done in a sphere of collegiality, but is mostly the task of the presiding judge who must not only execute the manager role, but must also set the tone and pace of the proceedings. Her second point on organization entailed that judges should already start drafting their judgement from day one. Not to undermine the process, but you can already write down the factual circumstances. The same goes for witness statements, it is better to assess their statement as soon as possible when it is still fresh in the memory rather than waiting at the end. Lastly, she talked about how often they run out of time when it comes to the actual proceedings. She believes that efficiency should be kept in mind at all times because fairness demands efficiency. As a response to a question asked by a member of the press, she explained that the drafters of the Paris Declaration are not striving for similarity of all the proceedings across the courts, but for more consistency.

Thirdly, Ms. Hrdlickova, President of the Special Tribunal for Lebanon, focused on the need for transparent rules and independent oversight mechanisms to create an atmosphere of accountability to increase the faith in these courts. The judicial activities between the different courts should also be compared to boost the will to be more efficient, to create some kind of competition. In addition, she explained the proposal to create independent audits to evaluate the management of the court. Lastly, there was much emphasis on the continuing education of all members of courts. Such education would include seminars, professional discussions and others on topics like psychology, technology, communication. “We are lawyers, we are not specialized in everything else”, she concluded. 

This statement was fully supported by Mr. Schmitt, Judge at the ICC, who stated that judges are reluctant to admit that they do not know everything, but that training is a sign of readiness to improve one’s competence. This education is important as universality and acceptance require knowledge on the main legal systems of the world. Secondly, Mr. Schmitt focused on case management and seconded that the judges really need to think as managers and that the presiding judge has an important role to play. Lastly he noted that judges sometimes need to have more self-control when feeling the urge to write dissenting opinions. Not every opinion is a matter of principle or a new development in law; they on the other hand cause for lengthy judgements which affects the overall efficiency.

Mr. Cotte, Former President of the ICC’s Trial Chamber, reiterated all that has been said on the need to improve efficiency. He is happy that these professionals came together to create the Paris Declaration’s recommendations - and thus not binding rules - in order to counter criticism. He hopes that this text will be discussed and considered by all the judges of all international courts and tribunals and is very much open to keep improving the recommendations along the way. Universities have also drafted recommendations that are complementary to the Paris Declaration. 

Side Event – “Documenting Conflict and Atrocity-Related Sexual Violence Crimes in CAR, Iraq, Myanmar and Sri Lanka"

Country Supplements to the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict

(co-hosted by the United Kingdom, the Centre for International Law Research and Policy – Case Matrix Network, the Commission for International Justice and Accountability, the Institute for International Criminal Investigations and Redress)

Overview by Adina Nistor, Affiliated Expert PILPG NL

Highlights:

• When victim and documenter safety cannot be insured, the mindful decision is to choose not to document the perpetration of international crimes;

• Guiding principle that cannot be emphasized enough: do no harm. Investigating international crimes and particularly crimes of sexual violence requires cultural sensitivity and a commitment to not further traumatize victims or put them (and documenter) at risk;

• Taboos, strong cultural and religious beliefs, and investigators’ own prejudices can hamper the investigation of sexual violence crimes.

• The Protocol on the Documentation and Investigation of Sexual Violence in Conflict (the Protocol) is a useful tool for documenting conflict and atrocity – related sexual violence crimes, which should be adapted to match the specificity of the country where the crimes have been committed.

This side event offered a thought-provoking discussion on investigating sexual violence in various socio-cultural and economic contexts, on how it should be ideally conducted, and what the steps are to move further in a constructive way. The speakers explained the role of the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict (the Protocol) and how theory and practice related aspects of documenting conflict and atrocity – related sexual violence crimes can be strengthened. Through the development and application of the Protocol to four country-specific supplements (on CAR, Iraq, Myanmar, and Sri Lanka), the first steps into solidifying and increasing knowledge on this sensitive topic have been taken. Other states and relevant actors are encouraged to use the Protocol, and to transpose and adapt it to national practices.

The experts present at the meeting addressed weaknesses inherent to current practices prevalent in the work of those documenting sexual violence crimes, with a particular focus on over-documentation, inadequate coordination, and the lack of competence of (especially self-appointed) investigators to conduct such sensitive work. The Protocol has been therefore designed to guide practitioners in conducting the documentation of sexual violence crimes in a culturally sensitive and ethical manner, which concern for the mental and physical wellbeing of those interviewed, but also the wellbeing of themselves as investigators. Being aware of the context-specificity of sexual violence crimes is essential first of all for appropriately identifying the crimes committed, for addressing survivors with sensitivity and dignity, and for ensuring that they are not re-traumatized by the process of providing evidence. Given that each conflict and each country where such crimes take place have their own set of legal practices, cultural norms, and traditions that are locally specific, the guidelines offered in the Protocol serve as a starting point in having the awareness that is necessary to adapt to the given context and to the given conflict situation.

The speakers also discussed the four individual guides on the four different countries (CAR, Iraq, Myanmar, and Sri Lanka) more in-depth; they addressed issues concerning the countries’ common ground, but also their points of divergence. The stigmatization suffered by victims of sexual crimes for example is a particularly challenging issue from an investigative point of view. The stigma attached to these survivors has legal and social implications for how such crimes are being addressed. In the case of male victims of sexual violence in particular, in countries where sodomy laws are in place, this prevents them from coming forward about what they have suffered for fear of legal repercussions and double victimization (by the perpetrator(s), and by the legal system).

One aspect that was underlined by the practitioners present at the meeting was that the issue of over-documentation is increasingly problematic, especially when it is conducted by self-appointed, untrained investigators. Ad-hoc approaches to gathering and handling extremely sensitive evidence, and of gathering statements from survivors of sexual violence crimes can lead to further human rights violations and can jeopardize the process of justice delivery for the victims. Gathering evidence without having a clear understanding on why and how this evidence is collected leads to unnecessarily exposing survivors to risks (filming interviews with victims can endanger them and this aspect should be always considered by the investigator). Documenters and donors have to be mindful of the dangers of investigating international crimes and at times make the decision to not investigate when doing so is harmful. While all victims of sexual violence crimes are extremely vulnerable, the speakers addressed the fact that when it comes to children, collecting evidence from them is even more problematic and ethically challenging. 

The discussion ended with best way to look forward. Ideally, victims of sexual violence crimes should be empowered to fully know their rights. They should therefore receive clear, truthful and appropriate answers to questions such as: Who are you and why are you taking my statement? What purpose will it serve? In what way does it benefit me? Ultimately, the role of the investigators is not only to document what happened, by whom, and to whom, but also to protect those who have been victimized and not to produce further harm.