Summarizing Developments at the International Criminal Court Before the 18th Session of the Assembly of States Parties

By Rachel Grand, Emma Bakkum, and dr. Marieke de Hoon

Between 2-7 December 2019, States Parties to the Rome Statute of the International Criminal Court (ICC) convene in The Hague for the 18th Session of the Assembly of States Parties (ASP): a key site for the politics of international criminal justice. In this post, we will provide an overview of recent events in preparation for this week’s developments. We will post daily summaries of the plenary and side event sessions here on our Lawyering Justice blog. Also follow us on twitter, via #PILPGatASP. 

The ASP functions as the management oversight and legislative body of the ICC and is composed of representatives of the States Parties to the Rome Statute. The ASP convenes annually in The Hague or New York to discuss and decide on issues that are relevant to the work of the ICC. These issues include the adoption of amendments to the Rome Statute or Rules of Procedure and Evidence, the ICC’s annual budget, judicial and prosecutorial elections, and questions relating to non-cooperation. A number of subsidiary bodies of the ASP report back to the ASP during the annual session, such as the Board of Directors of the Trust Fund for Victims and the Committee on Budget and Finance. During the ASP, States Parties furthermore discuss contemporary issues or challenges such as universality, complementarity, and victims and affected communities. Last few years, the ASP has in particular focused on threats to the integrity and legitimacy of the Court. 

To date, 122 states acceded to the Rome Statute. On 26 November 2019, Pacific Island State Kiribati deposited its instrument of accession to the Rome Statute. When its accession enters into force on 1 February 2020, Kiribati will be the 123rd State Party to the Rome Statute. 

Earlier this year, Malaysia was thought to become the 123rd state party, when Malaysian Minister of Foreign Affairs, Dato’ Saifuddin Abdullah, signed the instrument of accession to the Rome Statute last March. However, on 29 April, Malaysia confirmed with the UN that it was backtracking on its accession. 

This year, the ICC also lost a State Party when the Philippines formally withdrew from the Rome Statute in March, a year after it deposited its notice to the UN Treaty Office, becoming the second country to do so after Burundi withdrew in 2017. This move came in response to the preliminary examination into accusations that President Rodrigo Duterte and other Philippine officials committed extra-judicial killings during the “war on drugs” campaign.  

 The ICC looks back at another eventful year. Below a summary. 

Cote d’Ivoire – Gbagbo & Blé Goudé

In October, the Prosecution appealed Trial Chamber I’s January decision to acquit Gbagbo and Blé Goudé of all charges of crimes against humanity. The Prosecutors’ appeal asks the Appeal Chamber to declare a mistrial. While judges consider the appeal, the Appeal Chamber ruled to keep Gbagbo in detention. 

Uganda – Ongwen

In February, Ongwen’s Defense presented Trial Chamber IX with reasons why Ongwen should not be charged with 70 counts of war crimes and crimes against humanity. In July, the Appeals Chamber rejected Ongwen’s appeal on the Trial Chamber IX’s decision to decline the requested dismissal of 41 of the 70 counts of war crimes and crimes against humanity. In October, The Prosecutor announced that the trial of Ongwen is likely to conclude December of this year after the presentation of evidence. 

Libya – Saif Al-Islam Gaddafi

In April, Pre-Trial Chamber I confirmed that the case against Saif-Al-Islam Gaddafi is admissible before the ICC, rejecting the admissibility challenge presented by Gaddafi’s Defense in June of last year. The admissibility challenge asserted that Gaddafi was convicted by the Tripoli Criminal Court for the same conduct as charged by the ICC and that he was provided with a general amnesty.

Afghanistan 

In April, Pre-Trial Chamber II unanimously rejected the Prosecutor’s 2017 request to authorize an investigation into alleged crimes against humanity and war crimes committed in Afghanistan. The Chamber, despite finding that the jurisdiction and admissibility requirements were met, found that such an investigation “would not serve the interests of justice.” In September, the Prosecutor appealed the Pre-Trial Chamber’s decision to reject her request to open an investigation into the situation in Afghanistan. The Prosecutor’s appeal asserts that the Pre-Trial Chamber abused its use of discretion by not authorizing an investigation on the basis of an interests of justice assessment. In response to the appeal, on 9 October, the US announced it would remain to impose visa sanctions on ICC officials involved in investigations into US personnel. This announcement followed visa sanctions imposed on the Prosecutor, Fatou Bensouda, in March.

Bangladesh/Myanmar

In July, the Prosecutor requested the commencement of an investigation into the situation in Bangladesh/Myanmar. In September, Pre-Trial Chamber I decided that the Court may exercise jurisdiction over alleged deportations of Rohingya people from Myanmar to Bangladesh. This ruling established a precedent on ICC jurisdiction since Myanmar is not a party to the Rome Statute, but Bangladesh is. Pre-Trial Chamber II ruled in November that the Prosecutor can proceed with an investigation into the alleged crimes, within the ICC’s jurisdiction, committed against the Rohingya people from Myanmar.

Democratic Republic of Congo – Ntaganda and Lubanga

In July, Trial Chamber VI convicted Ntaganda of 18 counts of war crimes and crimes against humanity committed in the DRC between 2002-2003. In September, Ntaganda’s Defense appealed the  guilty verdict and requested an acquittal of all counts citing procedural errors and violations of fair trial rights. In November, Trial Chamber VI sentenced Ntaganda to 30 years in prison. This is the highest sentence the ICC has ever handed down. 

In July, the Appeals Chamber confirmed that Lubanga is liable for US$10 million worth of reparations to victims of his crimes.

Central African Republic – Yekatom and Ngaissona

In September, Pre-Trial Chamber II began the confirmation of charges hearing in the case against Yekatom and Ngaissona. Both are accused of committing war crimes and crimes against humanity in the CAR. Pre-Trial Chamber II concluded its hearings determining if there is sufficient evidence to establish substantial grounds for the charges against Yekatom and Nagaissona in October. The judges have 60 days to deliberate and present a written decision.

Mali – Al Hassan Ag Abdoul Aziz

In September, Pre-Trial Chamber I confirmed that charges against Al Hassan Ag Abdoul Aziz, for war crimes and crimes against humanity, were substantial enough to put him on trial. The Court has not yet set the trial date.

Syria 

In March, evidence against senior Syrian officials who allegedly committed war crimes and crimes against humanity were filed with the ICC. However, there are various limitations remaining to the Court’s ability to prosecute individuals who have committed war crimes and crimes against humanity in Syria.

Election of a new Chief Prosecutor

Next year, the ASP will elect a new Chief Prosecutor, during the ASP’s 19th session taking place in New York. Ms. Fatou Bensouda took office on 15 June 2012 and her 9-year term will end on 15 June 2021. She cannot be re-elected. 

Article 42 of the Rome Statute provides that the Prosecutor shall be a person “of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases.” The Prosecutorial election is facilitated by the Committee on the Election of the Prosecutor (CEP). The deadline for applications for the next Prosecutor was extended from 31 October to 25 November 2019. Reasons for extending the deadline include an under-representation of applicants from certain regions and legal systems, as well as gender representation.

In addition to the Chief Prosecutor, the ASP will also elect six new judges next year in New York. We can expect lobbying for each of these positions during this year’s ASP. 

Keep tuned to this blog to follow updates from the ASP in the days to come. 

#Lawyering Justice #PILPGatASP

Humanitarian Reality in Colombia: Saving Lives and Safeguarding the Future of Peace

By: Francisca De Castro, Junior Research Associate, PILPG-NL

Since the 1960s, Colombia has been faced with a situation of armed violence that has plunged the country in insecurity and crisis. Groups of farmers had created self-defense militias, which later turned into guerrilla groups, over agrarian disputes with the government. The violence turned into a conflict between state forces, paramilitary groups, and guerrilla groups such as the Revolutionary Armed Forces (FARC), amongst others. In 2016, the Colombian government and the FARC signed a peace agreement which put an end to more than 60 years of civil war. However, three years later, the humanitarian reality in Colombia is still far from resolved. The International Committee of the Red Cross (ICRC) reported that the humanitarian situation in Colombia had in fact decayed in 2018. According to the ICRC, this was a consequence of the five remaining armed conflicts with other groups that were running in parallel, and the ineffective state response to these conflicts in certain rural communities, such asthe Catatumbo and the Cauca regions.

The Colombian state’s inaction prompted social leaders, a term generally adopted in Colombian government and civil society to refer to people who are advocating for their communities social/civil rights, to proactively voice the concerns of minorities.  However, as a result, these leaders have become targets of aggression from unknown actors.  Reports suggest that these aggressions went from 82 recorded aggressions in 2008 to 174 in 2009, and have increased since then.  According to the NGO Somos Defensores, in 2018 alone, over 155 social leaders were assassinated.  However, the government has not been passive during this situation. It has established protection measures for social leaders which include private security officers as well as protected vehicles. 

The “Humanitarian Reality in Colombia” conference organized by Citizen Diplomacy (a group of Colombians living in the Netherlands and working towards bringing attention to the situation of social leaders in Colombia), provided a platform for social leaders visiting Europe to have an opportunity to share their stories. 

The first speaker was Nubia Russi, a leader from Tolima who has benefited from the security measures provided by the government.  Although grateful for the initiative, she pointed out several flaws in the system. Amongst those are the inequality of access to protective measures, as well as obstacles brought on by these measures, such as the difficulty of finding employment while being accompanied by officers.  She elaborated on how the budget of these measures could be better utilized to facilitate educational training for the beneficiaries. 

The second leader was Carlos Paez of the Tierra y Paz Organization.  Originally displaced from his land in Urabá in the 1990s, he has been fighting to regain access for over a decade.  This is a fight that has been affected by several laws, passed in 2007, 2009, and 2011, which claimed that any person forcibly displaced from their lands due to paramilitary activity had the right to regain access.  Yet Carlos is one of the few, as less than 10% of the regions’ displaced families have been able to return to their lands. 

Lastly, two leaders from the organization Movimientos Rios Vivos, Genaro Graciano and Milena Florez, explained what their lives have looked like since the 2018 Hidroituango catastrophe in which a poorly constructed dam suffered structural defects which resulted in the flooding of several communities in the area, resulting in over 120 people severely affected.  They seek reparations for the harm suffered by the communities inhabiting the affected areas, and call for independent investigations to assess liability for these harms. 

Citizen Diplomacy has put forward a four-pronged proposal to protect and enhance the lives of these social leaders.  It calls for decompression, empowerment, safe return, and creating safe spaces. 

The decompression component addresses how social leaders live under constant pressure and fear for their lives.  It aims to transport social leaders from high pressure to low pressure environments (often international destinations) for a short amount of time. This would, hopefully, be complemented with familial company and emotional support. 

The empowerment component stems from the social leaders’ motivation to defend human rights.  It seeks to provide training to improve the resistance capacities of social leaders, and organize conferences to raise awareness of the current situation of each defender. 

This ties into the organization’s  efforts to ensure safe return of those displaced.  As the threat persists upon return to Colombia, the role of organizations that provide international accompaniment is extremely important.  Many organizations across Europe work towards similar goals.

The last element is the promotion of safe spaces.  The international accompaniment is also extremely useful upon return to Colombia, as it can assist the social leaders’ efforts to create safe spaces for victims, and ultimately develop a self-protection strategy in consultation with the community.

Each Colombian social leader’s story is different.  Leaders represent different minorities with distinct grievances. In the recent past,  there has been an increase in the visibility of their fight compared to the situation during the FARC conflict. However, this fight will only achieve its full potential if it is accompanied by efforts to study and fix the issues hindering peace building in the state.

Creating a Virtual Human Rights Lawyer Week: Addressing Challenges

By Gabriella Gricius, Jasmijn de Zeeuw, and Bethany Houghton - PILPG-NL Senior Research Associates

Over the past six months, PILPG’s Netherlands Office has been working with Vrije Universiteit Amsterdam, the Knowledge Management Fund, InterCidadania Institute, the Legal Assistance Centre in Namibia and the VU Vereniging on the Virtual Human Rights Lawyer (VHRL) Chatbot. One of the main reflections from this project as well as the takeaways from our expert input sessions was how many challenges we first faced and later have overcome. 

At the beginning of this process, our team put together a list of some of the challenges that building the VHRL chatbot presented. For some of these challenges, we devised ways of meeting them, while for others we have adapted our approach to better take these factors into account. After much reflection at the end of the project period, we have determined some ways of adapting and meeting the most critical of these challenges. 

Challenge 1, 5 & 6: Internet, Adaptation to Local Customs, and Interacting with Victims

The first and most obvious challenge of the VHRL chatbot was that it relies on internet access. Victims of human rights violations often do not have internet access and therefore, a lack of internet access was a severe limitation of the chatbot’s usefulness. Furthermore, adapting the chatbot to local language presented another issue as many different cultures talk about certain issues such as rape in a roundabout way. Lastly, the challenge of how to interact with victims was one that we spoke to numerous experts about. 

To solve these three issues simultaneously, our team decided that to refine the focus on creating a tool for legally-minded civil society organizations (CSOs) rather than focusing on directly creating a tool for victims. Not only does working with legally-minded CSOs partially solve the challenge of creating a chatbot with understandable but legally accurate language, it also means that it is more likely that our target audience would have internet access. This ensures enhanced accessibility of our tool. 

Challenge 2 & 7: Building the Chatbot and Data Protection

Two separate but interrelated challenges are the actual construction of the chatbot as well as the question of data protection. Constructing the chatbot was a challenge that our team dealt with by working with InterCidadania Institute to create a first prototype. This version of the chatbot brought many further challenges to the forefront such as reflecting on whether we should be working with ontological or decision tree designs and how to create a sustainable backend that could be modified to use natural language processing once this technology is ready. 

The second challenge for our team was data protection. How would we make sure any data was securely stored? Did we want to collect data at all? Would the data that ran through Telegram as a third party be safe? Victims of human rights violations are particularly vulnerable and their data highly sensitive. Protecting this data is central to the development of the chatbot. To approach this challenge, we looked closely at data protection regulations throughout Europe and varying ways we could ensure that data would remain safe. We also examined at the possibility of not collecting data at all. Looking forward, we remain committed to making data protection and cyber security the most important aspect of the development of the VHRL chatbot.

Challenge 4: Domestic Remedies

The VHRL chatbot focuses on international and regional human rights mechanisms. These mechanisms in manyl cases ask applicants to first use all judicial proceedings available under domestic law before bringing a case or complaint before them. This poses a challenge for our chatbot - how can we ask users if they have exhausted domestic remedies? Which questions can help determine whether this is the case when domestic systems vary? And how to incorporate the exceptions to this requirement? 

Our choice for legally-minded CSOs addresses this challenge. The VHRL can assist those CSOs that work with clients who have already exhausted domestic remedies and are looking for another way to help them with their case. The chatbot aims to make information about mechanisms at the international level - information that is currently dispersed and often difficult to access - more accessible for these (local) organizations.

Creating a Virtual Human Rights Lawyer Week: VHRL Conference

By Hester Dek - PILPG-NL Intern

“A pro bono law firm does not have the resources to help with everything or everyone”. 

According to Dr. Marieke de Hoon, Assistant Professor VU Amsterdam and Direction & Senior Counsel of PILPG Netherlands, this led PILPG to set up the Virtual Human Rights Lawyer project (‘VHRL’) – a joint project of the Vrije Universiteit Amsterdam and the Netherlands Office of the Public International Law & Policy Group (PILPG).  The project works towards making information on human rights more accessible by using chatbot technology. 

On September 27, 2019, PILPG organized the ‘Creating a Virtual Human Rights Lawyer Conference’ to present the prototype of the VHRL and reflect on the function of technology in the human rights discourse. The conference focussed on the conceptualization of the VHRL, the challenges to the execution of the project, and exploring possibilities for development.  Dr. de Hoon provided an overview of the project, together with three senior research associates – Bethany Houghton, Gabriella Gricius, Jasmijn de Zeeuw – and former research associate Abby Roberts.  They explained some of the challenges to the project including data protection and simplifying otherwise technical legal terms. 

This was followed by a panel discussion on “Enhancing Human Rights Redress through Chatbot Technology: Opportunities and Challenges” with experts from the field of psychology, law, and technology. “The project is about contributing to helping people overcome human rights violations, not about making them even more vulnerable” said Dr. de Hoon and, a sentiment echoed by  Mr. Sinteur – Co-founder of Radically Open Security. They emphasized that – the VHRL team should be mindful of cyber security risks. Mr. Sinteur advised the VHRL against designing its own technology, as this could make it easier for it to be blocked, especially if state actors had reservations about the scope of the project.  In response, Ms. Serrurier – Co-founder of AI Training.nl and Associate Partner at Holland Consulting Group – observed that the risk of encountering objections from states also exists with human agents. An most important takeaway was that the best manner to deal with this risk is by communicating it well. 

Besides highlighting the importance of communicating the risk of cyber security, Dr. de Hoon stressed on the importance of managing the expectations of the VHRL.  Dr. de Hoon clarified that the VHRL is a navigation and knowledge tool, and that it should not be seen as a replacement for a real lawyer. 

The panel discussion also prompted, discussion on the benefits of the project.  Mr. McMahon discussed how technology-friendly projects like the VHRL could fill the accessibility gap created by international courts like the ICC.  Ms. Chahuneau – Senior Legal Advisor at Parliamentarians for Global Action – also explained that for victims of human rights violations, the mere affirmation  that a human right was violated has a validating effect . 

Overall, the conference provided PILPG and the attendees with a clear overview of what the design process and implications of the project.  Most importantly however, it was an eyeopener on the transformative potential of tools like the VHRL.  

Creating a Virtual Human Rights Lawyer Week: Spring Outreach

By the Virtual Human Rights Lawyer Team

In the months of April and May 2019, PILPG-NL’s Virtual Human Rights Lawyer (VHRL)-development team presented the VHRL at three outreach events, where the team were able to disseminate their activities and receive inputs on how to finetune the project. 

In April 2019, some of the VHRL Research Associates and Senior Research Associate, Gabriella Gricius,  participated in the Justice Challenge, a competition for social entrepreneurs with innovative solutions to justice problems.  The Justice Challenge is a new initiative by the Amsterdam Law Hub, a co-working space for students and staff at the University of Amsterdam. The Justice Challenge incubator consisted of two phases, a startup bootcamp and a pitch competition. At the bootcamp, topics such as lean startups, grant seeking, assumption-testing,  validation research, fieldwork, and user interviews were discussed. We would like to thank the organizers of the Justice Challenge, Nathalie Dijkman and Asefeh Zadeh, for their ideas and recommendations.  

In May 2019, the Amsterdam Centre for Migration and Refugee Law organized a seminar on the role of law clinics in strategic litigation in the field of migration law.  PILPG was invited to give a workshop on its work, in particular the progress of the VHRL project. PILPG- NL Director Dr. Marieke de Hoon and the Research associates Abby Roberts, Cleo Meinicke, and Filipe Costa started the presentation by outlining the overarching goal for the chatbot and explaining our approach towards achieving this goal.  They then discussed the process of creating the chatbot, the operational concerns identified during the development phase of the project, and the decision trees that map out the potential user interactions with the chatbot.

Also in May 2019, Dr. de Hoon was invited to speak at the Amsterdam Law Forum Conference: Technology and International Law on the VHRL. At the conference, Dr. de Hoon presented the VHRL, the challenges of the project, and how the team were working to overcome them. With an audience of academics with an interest in law and technology, the team was able to receive relevant feedback.

PILPG-NL extends its gratitude to those who organized the three events for giving the team the platform to share knowledge of the VHRL and to hear feedback on the project.