ASP18 Side Event: Justice for Victims of Rights Violations and Sexual Violence in The Gambia

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 4 (5 December 2019)

Name of the Event: Justice for Victims of Rights Violations and Sexual Violence in The Gambia (Side Event co-hosted by the Netherlands, Uganda, Africa Legal Aid (AFLA), La Fondation pour l'Égalité des Chances en Afrique, and the Women's Initiatives for Gender Justice (WIGJ))

Overview by: Hester Dek, Intern PILPG-NL

Summary of the Event:

“Justice for all of those people means Jammeh has to pay for everything he has done.” 

The panel consisted of Reed Brody (Advocate for Yahya Jammeh’s Victims; Counsel, Human Rights Watch), Toufah Jallow (Former Beauty Queen who Inspired the Gambia’s Me Too Movement after Accusing ex-dictator of Rape), Martin Kyere (Sole survivor of West African Migrant Massacre in the Gambia), Fatoumatta Sandeng (Daugther of Slain Gambian Activist Solo Sandeng; Spokesperson, Jammeh2Justice Campaign), and Melinda Reed (Executive Director, Women’s Initiatives for Gender Justice). The event was chaired by Evelyn A. Ankumah (Executive Director, Africa Legal Aid). 

The panel opened with a film by Human Rights Watch called “Truth and Justice in The Gambia” (watch it here).  After Reed Brody applauded his personal hero’s (Toufah, Martin, and Fatoumatta), he discussed avenues for justice for the crimes committed during the Yahya Jammeh era; while the TRRC has had a positive impact, it is time to discuss the question of what will happen now. According to Mr. Brody, the main problem is that Jammeh fled to Equatorial Guinea, which is why the “Campaign to Bring Jammeh and his Accomplices to Justice” (#Jammeh2Justice) was launched. “There is hope that with this campaign there will be sufficient political momentum so that Equatorial Guinea will feel the need to abide by the law.” 

Another video was shown, introducing the next speaker on the panel: Toufah Jallow (watch it here). The video shows her message: “my justice includes a whole system change, so that we can prosecute this man, have our day in court”. During the panel, she spoke about the importance of addressing sexual violence by state officials. Her message was threefold. First, how many women are afraid to speak up about sexual violence they have experienced; “I wondered how many girls are looking for a way to say what has been done to their bodies. I decided to be that person, for myself, and for other young Gambians”. Secondly, that the rape that happened to her was not about sexual desire, but “a display of power, a manifestation of where I stand and he stands, to turn a no into a yes because of who I am”. She explained how perpetrators are aware of these dynamics, they think they are safe, that no one will believe the survivors. Third, that we should not forget sexual violence in the prosecution, “those counts are worthy enough to be included in what will eventually bring Jammeh to justice”.  

The next topic concerned justice for the West African migrants killed in The Gambia. “I am not saying good morning, or good afternoon. J to J (Jammeh to Justice), that is how we greet. Until he is brought to justice we will not rest.” After his introduction, Martin Kyere went on to describe what had happened in 2005, when over 50 West African Migrants were massacred in The Gambia, leaving him as the sole survivor. He explained how he travels from village to village to find the families of those who did not survive. 

Hereafter, Fatoumatta Sandeng took the floor, discussing why The Gambia needs justice. She provided three reasons. First, she explained that it is needed for the state to heal; “as victims we will never heal without justice, without justice we would never reconcile”. Second, she stated that it is needed for young people, in order for them to put their intellectuality into something else; “we need justice to divert our concentration to other things”. Third, to set an example to world leaders, African leaders, Gambian leaders: you don’t rape us, you don’t kill us, you don’t torture us without facing justice. 

Following this powerful speech, Melinda Reed took the floor, providing for a broader understanding of accountability for sexual violence. First, and as already explained by Toufah Jallow, Ms. Reed emphasized the need to enable the disclosure of sexual violence. “Survivors are the experts on sexual violence, not the academics or the legal practitioners”. She explained how accountability requires this conversation as “you cannot find what you are not looking for”. Second, she discussed the issue of hierarchy in cases of sexual violence, which is disempowering to victims. Lastly, she called for action: “let’s not let the challenge of prosecution of sexual violence stop us. We must choose to confront these challenges”.

The event was concluded with a discussion on the need of custody for trial, the effect of the TRRC, and how to get victims disclose information earlier in the trial (Habré case). Fatoumatta Sandeng concluded: “We do not know what the stance of the government is, but we know what our stance is as victims. We own this. We know where we stand.” 

ASP18 Side Event: Accountability for Grave Crimes: the ICC and Complementarity Options for Ukraine

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 4 (5 December 2019)

Name of the Event: Accountability for Grave Crimes: the ICC and Complementarity Options for Ukraine (Side Event co-hosted by Human Rights Watch, International Renaissance Foundation, and the Ukrainian Legal Advisory Group)

Overview by: Sindija Beta, Junior Research Associate PILPG-NL

Main Highlights:

• Panelists recommended that Ukraine should approach the workload of cases realistically and that perpetrators of crimes on all sides should be prosecuted. 

• Panelists indicated that Ukraine needs international assistance in the prosecution of crimes committed. The ICC’s role in the national prosecution, however, should be complementary and not organizational. 

Summary of the Event:

The discussion was started by Deputy Prosecutor General of Ukraine, Gunduz Mamedov who emphasized what Ukraine has already done and will do in the future to bring to justice the perpetrators of crimes against humanity in committed Ukraine. He noted that the prosecutor’s office has detected numerous human rights and humanitarian law violations in Crimea since 2014. For the first time in history the prosecutor’s office has sent these outcomes to ICC. Mr. Mamedov acknowledged that the problem, however, is that law and enforcement bodies do not have any experience in prosecuting such crimes. He introduced the new department which was made to create a unified system for prosecution of crimes and conduction of investigations. Mr. Mamedov concluded by stating that Ukraine is actively working on the ratification of the Rome Statute and is willing to show continuous support to the ICC.  

Nadia Volkova, director of Ukrainian Legal Advisory Group (ULAG), noted that ULAG has been involved in documenting war crimes and crimes against humanity since 2015. She expressed her gratitude to the work done by the Prosecutor’s Office and that Ukraine continues with the cases. Nevertheless, Ms. Volkova flagged that the issues they have encountered require international assistance as national authorities do not have sufficient knowledge and expertise. She particularly outlined the need for investigators, judges, prosecutors, and information sharing from war crimes units in other states. 

Co-founder of Guernica 37 International Justice Chambers and former Counsel to Chief Prosecutor in Bosnia and Herzegovina, Toby Cadman pointed out that the primary responsibility of prosecuting international crimes lies with the national authorities. In his opinion, the Bosnian model for prosecuting international crimes is one of the most successful models in theory. He particularly pointed to the setting up of the process and the strategy developed. Mr. Cadman highly emphasized that the proceedings must be national and with only a supportive element from the international community. He furthermore stressed that Ukraine must realistically approach the workload they have and must be honest with the victims by saying that not all crimes will be prosecuted. Lastly, he advised the Ukrainian colleagues to develop a nation-wide strategy for how these cases will be conducted and what the involvement from the international community will be prior to commencement of the proceedings. 

Associate director of International Justice Program in Human Rights Watch, Elizabeth Everson spoke about the potential role of ICC in the process. She expressed her concern about cases where the government’s lack of political will prevents international crimes cases from being prosecuted. Ms. Everson noted that the ICC should be involved in the Ukraine case and act as a supplementary organ if the national authorities are unable or unwilling to proceed with the prosecutions. 

Finally, the speakers discussed the importance of fairness and transparency, as well as the impartiality of the prosecution in Ukraine. They agreed that criminal cases must be opened against the perpetrators of all sides – Ukrainian, Russian, as well as the separatist group. Toby Cadman reiterated the need to be selective as to whom Ukrainian authorities choose for assistance and that they must pay attention to possible language barriers.

ASP18 Side Event: European States & Civil Society: Strengthening the ICC and Rome Statute System

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 3 (4 December 2019)

Name of the Event: European States & Civil Society: Strengthening the ICC and Rome Statute System (Co-hosted by Finland and the Coalition for the International Criminal Court (CICC))

Overview by: Hester Dek, Intern PILPG-NL

Main Highlights:

• Cooperation with the ICC is key for the Court to work efficiently and effectively.

• One of the main challenges for the ICC is the lack of outreach and information dissemination, for instance in countries such as Georgia.  

Summary of the Event:

Virginie Amato (Regional Coordinator for Europe, Coalition for the ICC) opened the side event by discussing the threats human rights defenders, who continue to fight for global justice in a continuously hostile environment, face worldwide. She highlighted how the promise of the Rome Statute towards victims and ending impunity is threatened increasingly through the decrease in multilateral cooperation. 

Next, Saija Nurminen (counsellor, desk officer ICC, Ministry of Foreign Affairs Finland) discussed the strong support of the ICC by the EU. She called for the increasing need for support in order to strengthen the ICC so it can be “as efficient and effective as possible.” 

Eamon Gilmore (EU Special Representative for Human Rights and EU Special Envoy for the Peace Process in Colombia) continued on the topic of support, stating that in the current time “political support provided might be more important than financial support.”  However, he mentioned that the issue of resources is very important as well, as “to act adequately, the ICC has to be properly resourced.” He stressed that in the end it goes beyond the issue of resources, as cooperation is key. 

Nadia Volkova (director, ULAG) spoke about the current attitude towards the ICC in Ukraine. She discussed the military opposition to the Court, and their arguments regarding its ineffectiveness, inefficiency, and costs. She stated that in light of the military stance, they appreciate the effort from the international community and continue to hope for a more radical push by the EU and allies. 

Next, Nino Jomaridze (lawyer at GYLA) discussed the Georgian case. She stated that the Georgian situation is of importance for the ICC, as it poses exemplary challenges to the ICC. Jomaridze went on to discuss four main challenges in the interaction between the ICC and Georgia. First, the lack of outreach. She stated that a lot of Georgians have never heard about the ICC, its investigation, its mandate etc. Second, the lack of information on the progress of the Office the Prosecutor.  She mentioned that “while during the first years of ICC involvement the interest of victims was quite high, this interest has faded away due to lack of information”. Third, the lack of cooperation from for example Russia. Fourth, the importance of the role of victims, who should not be forgotten by the ICC or other stakeholders. 

Next, Andreas Schueller (director of the International Crimes and Accountability program, ECCHR) discussed the importance of the ICC functioning as a criminal court. He mentioned the importance of investigations, instead of the long preliminary investigation process, and called for support of the review process to guarantee an independent court with constructive criticism of the current process. 

Lastly, the floor was opened for questions and comments. The first comment regarded outreach of the Court, stating that many public officials, the media, and people in general do not know about the Court: “the media spoke about the ICC while portraying photos of the ICJ”.  It was stated that this makes it difficult to manage expectations, for example in explaining that “international justice is not quick justice”. 

Another issue that was mentioned was political willingness. Roberta Dariol (EU Focal Point on the ICC, EEAS) took Ukraine as an example and stated that often the lack of knowledge about the court results in a lack of political will; “When people don’t fully understand what is at stake they are reluctant to work towards this”. She argued that civil society has a strong role in this respect in terms of education. On this latter aspect Nadia Volkova commented. She stated that in the Ukraine, politicians and the military have had plenty of chances to do that: “those who wanted to learn about it have had a chance”. 

ASP18 Side Event: The Value of a Harm-Based, Victim Centered Approach to Reparative Justice

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 3 (4 December 2019)

Name of the Event: The Value of a Harm-Based, Victim Centered Approach to Reparative Justice (Side Event hosted by the Board of Directors of the Trust Fund for Victims)

Overview by: Signe Wolf Børm, Junior Research Associate PILPG-NL

Main Highlights:

• Reparations are essential to ensure victims reintegration into society.

• States Parties to the Rome Statute should contribute to the Trust Fund for Victims.

• Collective and individual reparations have different outcomes for the individuals within a community. Mr. Fidel concluded that collective reparations are important, but alone they cannot respond to all the needs of the victims.

Summary of the Event:

This side event, co-sponsored by the governments of Chile, Finland, Ireland, Mali, and Sweden focused on a harm-based, victim centered approach to reparative justice. Pieter de Baan, Executive director of the Trust Fund for Victims (TVF) as introductory remark noted that the title of the event ‘The Value of a Harm-Based, Victim Centered Approach to Reparative Justice’, was chosen to reflect that a harm-based and victim centered approach when compensating victims is essential based on the Rome Statute system. 

The first keynote remark was provided by Malick Coulibaly, the Minister of Justice of Mali. Mr. Coulibaly underlined the importance of the TVF, which provides victims with support, whether it is physical, psychological, or material. It was further noted that Mali had contributed to the TFV and that other countries should do so too.

H.E. Kevin Kelly, Ambassador of Ireland to the Netherlands, mentioned that accountability for international crimes is one of the key objectives of the ICC. With investigations, trials, and decisions in cases of crimes against humanity, genocide, or war crimes, there are always victims.  The lives of the victims must be rebuild with dignity and the aim of the TVF is therefore to deliver tangible imperative value to the victims, families, and communities. H.E. Mr. Kelly was a part of a delegation of States Parties which went to Uganda in 2018 to see the work and progress of the TFV first hand. The delegation was happy with the progress the TVF, for instance relating to physical and psycho-social support for the victims, but H.E. Mr. Kelly highlighted that sustained work over a number of years will be necessary. The responsibility however is ultimately that of the states. Lastly, H.E. Mr. Kelly noted that Ireland has this year made a voluntary contribution of 200.000 Euros and urged other States Parties to contribute to the TFV. 

Mariana Durney from the Chilean ministry of foreign affairs spoke next, stating that the harm-based and victim centered approach corresponds with the established approach by the ICC. Ms. Durney further stated that reparations can take multiple forms, including restitution, compensation, and rehabilitation, which can be awarded both on an individual and collective basis, depending on the harm caused and facts of the case. The importance of the Court being capable of communicating and inviting the affected people to testify was therefore considered necessary to understand the full scale of atrocities that took place. The Court hearing the victims experiences was deemed necessary to award the appropriate reparations, which in turn will allow victims to recover and reintegrate into their societies. Once again the lack of funding was mentioned as difficulty in reaching those goals.

Hereafter Felipe Michelini, the Chair of the Board of Directors of the TFV discussed the value of the victim centered approach due to its recognition of the victims and the horrible acts they have suffered. Mr. Michelini stated that, listening to the victims, recognizing them and their dignity and that they are worth being heard, is important, particularly considering that perpetrators tell them that no one will listen to them. Victims furthermore need support in the judicial process, where they are exposed to re-traumatization. An issue that was highlighted in this regard was that states like to refer to victim centered approaches and are willing to allocate resources to trials but not to reparations. This argument is reflected in the resources allocated to the TFV being very small compared to those of the trials. The minimal budget allocated to victims does however not diminish the fact that the best possible results should be delivered, and the obligation of the States Parties to repair can therefore not be set aside.

Upon the keynote remarks, a general debate was initiated, where Fidel Nsita Luvengika, the Legal Representative of Victims in the Katanga and Al-Hassan cases, stated that it was found that reparations given to collectives for example in the form of a well, means that the individual victims do not find anything for themselves, to be able to build up a home and a life again. This is due to victims being left without homes, as these have been looted or destroyed during the atrocities and are left with no financial resources. A well or a hospital was therefore explained as being important to rebuild communities, but these forms of reparation will not enable the victims to reestablish a normal life. It was moreover stated that victims are happy when a sentence is given to the perpetrator but when the victims are asked to forgive, they deny doing so because they are not being given reparations, despite the perpetrator having to do so. Perpetrators are generally not capable to compensate, which necessitates TFV help with reparations instead. Mr. Fidel Nsita Luvengika concluded that collective reparations are important, but alone they cannot respond to all the needs of the victims.

Karine Bonneau (Global Survivors Fund) explained the mandate of the Global Survivors Fund, stating that the organization works with survivors of sexual and gender based violence. She noted that the survivors of sexual and gender based violence have never been highly prioritized by the international community. With reparations and the right support, the victims will be able to reintegrate into their society. The Global Survivors Fund therefore has a goal to ensure that these victims receive reparations and other forms of redress. The Fund has three functions 1) allocation of financial resources for local education, 2) technical assistance and, 3) access to reparations. Lastly, the Fund is survivor centric, and it will be fully effective in 2020. The Global Survivors Fund wish is to collaborate with states and the Fund should therefore be seen as complementary to national efforts, in an effort of transforming the lives of survivors and shift the international policy agenda to promote reparations. A side note that was mentioned was that where the perpetrator is not convicted, no compensation will be afforded to the victims and the international efforts are of core importance within this area.

Lastly Mama Koité Doumbia and Gocha Lordkipanidze, both TFV board members, closed the session by stating that it is essential to support the TFV. Support is both needed in awareness raising aimed at the public and private sector as well as the general public. States Parties were moreover urged to voluntarily contribute financially to the TFV. This was highlighted as being of core importance, as to ensure that victims are recognized.

ASP18 Side Event: Pursuing Universality of the Rome Statute in an Evolving International Context: Persistent Challenges, New Dimensions and Adaptive Strategies

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Wednesday (4 December 2019)

Name of the Event: Pursuing Universality of the Rome Statute in an Evolving International Context: Persistent Challenges, New Dimensions and Adaptive Strategies (Side Event co-hosted by the Netherlands, the Republic of Korea, and Parliamentarians for Global Action)

Overview by: Erez Roman, Junior Research Associate PILPG-NL

Main Highlights:

• “Universal membership of the Rome Statute is essential to support the ICC’s legitimacy as a truly global institution of international justice.”

• Hon. Natan Teewe Brechtefeld from Kiribati brought forward the growing role environment plays.

• The situation of ratification of the Rome Statute by Ukraine was raised by Hon. Dr. Hryhoriy Nemyria.

Summary of the Event:

Moderator Dr. David Donat Cattin (Secretary General of Parliamentarians for Global Action) introduced the panelists and remarked on the importance of the work of Parliamentarians for Global Action (PGA) toward the goal of universal ratification and implementation of the Rome Statute, as PGA has contributed to 79 of the 125 ratifications of the Rome Statute to date. The panelists were then given the floor to speak.

First, H.E. Mr. Paul Van den Ijssel, the permanent representative of the Kingdom of the Netherlands to the OPCW& ICC. H.E. spoke about the importance of the universality of the Rome Statute. However, he mentioned that the application of the Rome Statute by the Netherlands is lacking and has not been so successful so far. The Ambassador mentioned the Netherlands’ role regarding the unsuccessful accession process of Malaysia and emphasized his disappointment relating to the fall through of the process. In addition, the Ambassador also referred to the role played by the Netherlands regarding the accession process of Ukraine. More generally, the Ambassador reiterated that universality is a common responsibility of all States Parties. However, certain issues regarding accession to the ICC that may arise such as retroactivity and complementarity which have to be acted upon by all members. 

Following the opening statements, Mattias Hellman, External Relations Advisor, Presidency of the International Criminal Court, thanked PGA for their contribution to the success of the ICC. Subsequently, he mentioned several points regarding the difficulties of achieving universality of the Rome Statute. These points, which differ between countries, include a lack of interest in the Court, a lack of correct information regarding the Court, and the existence of general suspicion of the intentions of the Court. Other than the reasons relating to the court, there are also reasons relating to the states themselves, including for instance lack of capacity or resources, competing priorities and other, more urgent needs of the country. To conclude, Mr. Hellman emphasized the point that intervention from outside the country will not succeed in making the country ratify and accede. The only way is through domestic advocacy as the need and will to accede has to stem from within the country. Nonetheless, other states should support a state which shows willingness to accede and show them the importance of the ICC and inform about what membership entails. 

Third to speak was H.E. Mr. O-Gon Kwon, President of the Assembly of the States Parties of the ICC. Mr. O-Gon Kwon started by expressing his happiness with the ratification of the Rome Statute by the Republic of Kiribati and his disappointment regarding the failure of the ratification process undertaken by Malaysia. In relation to the successful accession process of Kiribati, the ASP President mentioned that environmental issues played an extremely important role. In relation to the backtracking on its accession by Malaysia, the President of the ASP emphasized the role played by misconceptions regarding certain important principles such as the true meaning of the principle of complementarity. The ASP President concluded his talk by pointing to the message that is sent to non-member countries when a new country signs and ratifies the Rome Statute.

Fourth to speak was Hon. Nathan Teewe Brechtefeld , MP and Former Minister of Justice of Kiribati (PGA member). Mr. Teewe Brechtefeld said a few words on the accession process of Kiribati. He emphasized the decisive role played by environmental issues and mentioned that Kiribati joined the ICC to gain protection from environmental crimes. Furthermore, Mr. Teewe Brechtefeld stated that Kiribati became interested in the ICC because it believes it could assist it in maintaining its exclusive economic zone and in general its sovereignty. He concluded by reiterating the need to expand the jurisdiction of the court to include environmental crimes. 

Fifth to speak was Hon. Dr. Hryhoriy Nemyria, MP (Ukraine), Chair of PGA National Group in Ukraine and PGA Board Member. Mr. Nemyria spoke about Ukraine’s recent history regarding its accession to the ICC. He mentioned some points regarding what could cause a positive momentum to accession. The two major events that were mentioned as catalysts were the Orange revolution and the annexation of Crimea and occupation of parts of eastern Ukraine which indeed caused the Parliament of Ukraine to take some steps regarding accession. Nevertheless, as Mr Nemyria said, Ukraine is yet to ratify the Statute. He continued by explaining possible answers including the political system of Ukraine, the legal aspects of having a semi-presidential system, and certain questions regarding the effectiveness of ratification.

Sixth in line was Mr. Andrew Khoo, Chair of the Human Rights Committee, Bar Council Malaysia, who spoke about the failed accession process undertaken by Malaysia. Mr. Khoo introduced the process and then explained certain points relating to why it failed such as a populist wave which ambushed the accession with negative comments regarding state sovereignty and diminution of the role played by traditional rulers. Furthermore, misinformation regarding the sovereign immunity was also brought up but can be easily defended by looking at the example of the Genocide Convention which Malaysia signed and ratified in 1993. He concluded his talk by stating the lessons which should be learned from this process, namely, know your country, challenges, and citizens in order to be successful.     

Dr. Donat Cattin concluded the event with comments regarding the future of the universality of the Rome Statute and mentioned the case of the referral of the situation regarding the Rohingya in Myanmar as an example of universality.