ASP19 Side Event: Crimes Against Humanity and Complementarity in Latin America

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES

9 December 2020

Name of the Side Event: Crimes Against Humanity and Complementarity in Latin America (Co-hosted by: Coalition for the International Criminal Court (CICC), International Federation for Human Rights (FIDH), Comisión Mexicana de Defensa y Promoción de Derechos Humanos (CMDPDH), Comisión Colombiana de Juristas, Colectivo de Abogados José Alvear Restrepo , Reporters Without Borders (RSF))

Report by:  Diana Sposito, Research Associate PILPG-NL & Shaya Javadinia, Junior Research Associate PILPG-NL

Highlights:

• Latin America is a violent region that requires effective investigations and accountability. In several states, including Mexico, Colombia, Venezuela, and Nicaragua, non-state actors and state authorities commit egregious abuses that amount to crimes against humanity.

• Due to the high impunity and lack of judicial independence in most states, the ICC has a relevant role to play to strengthen the fight for justice.

• The opening of PEs by the OTP is a positive first step, but more is required; states need to engage and take measures toward effective investigations.

Summary of the Event:

On Wednesday, December 9th, the Coalition for the International Criminal Court (CICC), together with the International Federation for Human Rights (FIDH), the Comisión Mexicana de Defensa y Promoción de Derechos Humanos, the Comisión Colombiana de Juristas, the Colectivo de Abogados José Alvear Restrepo, and Reporters Without Borders, co-hosted a side event in the margins of the 19th ASP on crimes against humanity and complementarity in Latin America, aimed at discussing the situations in Mexico, Colombia, Venezuela, and Nicaragua more specifically.

The moderator of the event, Carmela Garcia (CICC), started by thanking the ASP for the space it opens to allow dialogue between states and include the participation of civil society in core debates regarding human rights. She highlighted the active participation of Latin states by denouncing grave violations of human rights in the region.

The first speaker, Jimena Reyes (FIDH), discussed the existence of crimes against humanity in the Latin region. According to Reyes, Latin America is among the most violent continents in the world, with crimes committed both by non-state actors (NSA) and state agents. In Mexico and Colombia, the majority of crimes are committed by NSAs, while in Venezuela and Nicaragua, state authorities and security forces configure the majority of perpetrators. However, the number of crimes committed by state agents in Mexico and Colombia is still highly significant.

Reyes shared the example of drug cartels in Mexico. These NSAs commit a series of organized crimes, usually with the participation of security forces, resulting in crimes against humanity, including enforced disappearance, sexual violence, torture, and murder. Moreover, even the official discourse of Mexico’s war on drugs includes violence and indiscriminate use of power.

The speaker also claimed that a new wave of violence in the region has started, and the possibility of peacebuilding is continuously shrinking. The Nicaraguan government, for instance, has started violent authoritarianism, resulting in the murder of several political dissidents, protestors, and civil society in general. As Nicaragua is not a party of the Rome Statute, the possibility of justice is limited.

Reyes furthermore said that the ICC Office of the Prosecutor (OTP) opened preliminary examinations (PE) in the situations of Colombia and Venezuela, finding that there is a reasonable basis to believe that crimes against humanity are committed in these states. The OTP has also opened a PE in the situation in Mexico, but, in all three situations, there was no concrete and significant action so far.

The second speaker, Juan Carlos Ospina (Comisión Colombiana de Juristas), tackled the issue of complementarity. He mentioned that the PE on the Colombian situation, opened by the OTP in 2004, found reasonable grounds to claim the existence of crimes against humanity in that state, which include extrajudicial executions committed both by NSAs and police agents. This led the path for transitional justice efforts in Colombia, but there is still a need to strengthen the fight against impunity and for guarantees of non-repetition.

During his speech, Ospina provided some questions for the audience to reflect on. One of them was how to determine that the effort of states for justice is genuine and how to materialize the positive complementarity of the ICC, beyond legislation. He proposed the creation of parameters to evaluate PEs and an analysis of how these criteria could allow us to value and assess the impacts and effects of that complementarity.

The third speaker, Calixto Avila (Informal Venezuelan NGO’s Network), focused on the situation of Venezuela. He referred to the Human Rights Council Fact-Finding Mission on the Bolivarian Republic of Venezuela, which concluded that both state authorities and armed groups have committed crimes against humanity in Venezuela. The mission also found that high-level authorities, including the head of state, had knowledge of these crimes and contributed to them through omission.

In the sequence, Avila touched upon the role of the Venezuelan judiciary in the fight for justice. According to him, impunity of serious crimes in that state shows a lack of independence of the judiciary despite the existence of a national discourse that judicial powers work effectively to hold the perpetrators of these crimes responsible. The UN Mission also found that the judiciary contributes to impunity and denies justice to victims, and urged the state to take measures to assure this independence. Avila pointed out that one of the main problems in Venezuela is the lack of independence and impartiality of the judiciary.

The fourth speaker, Olga Guzmán Vergara (CMDPDH) began her speech by reminding the audience that the former Mexican President, Felipe Calderón, declared a war in 2006 against organized crime with the alleged aim to save Mexican children and youth from drugs and addiction. From that moment onwards, however, Mexico witnessed an increase in violence in security, corruption, torture, sexual violence, murder, enforced disappearances (among others). These events were documented by civil society organizations, academia, and international human rights mechanisms. Guzmán Vergara explained that based on the available evidence, the acts of violence were not sporadic acts but rather planned actions that followed a specific pattern and carried out state policy. The recurrence of these violent events gives rise to a reasonable basis to conclude that by committing these allegedly widespread and systematic attacks on civilians, Mexico is in violation of article 7 of the Rome Statute, to which Mexico has been a party since 2005. Involvement of the military in public security in the 14-year fights against drugs has increased the illegal and indiscriminate use of force against civilians, which can be regarded as state policy. Guzmán Vergara also explained that in Mexico there is a culture of forced disappearances, and torture is used as a method to obtain forced confessions. Human rights organizations have documented evidence of such violations. She invited the audience to review one of the CMDPDH’s most recent communications, which shows that the office of the Mexican prosecutor has recorded a large number of criminal investigations on torture, for which they have issued very few sentences. According to Guzmán Vergara, torture, a “common tool” for state security institutions, is perpetrated in complicity of forensic professionals and authorities in charge of the investigations and has replaced a thorough investigation of facts. She also spoke about enforced disappearances, murders, and other crimes that take place in a systematic nature in Mexico and are denied or tolerated by the authorities. Civil society in Mexico has been investigating these events, and the OTP is also analyzing the situation. Guzmán Vergara mentioned that the civil society has yet to see the result of their calls to ICC, which is important for providing answers to organizations and the victims that have resorted to the ICC as a unique alternative since the Mexican authorities have not provided justice. The OTP has yet to determine whether there is reasonable basis to open investigations. Guzmán Vergara also pointed out that while the ICC can play an important role in bringing justice to victims, it is important for Mexico to not only recognize that crimes against humanity have been committed, but to also take action and address the impunities by investigating the alleged crimes with the help of civil society and human rights defenders.

The fifth speaker, Antoine Bernard (RSF and Propuesta Civica), spoke about the crimes committed against journalists in Mexico. According to an analysis conducted by RSF, crimes committed against journalists in Mexico are not sporadic but are planned to silence journalists and stop them from performing their journalistic functions. The recurring and organized nature of these crimes provides reasonable basis to believe that journalists in Mexico suffer crimes against humanity for the very reason of their identity as journalists. Bernard pointed out that while Mexico created protection and prosecutorial federal mechanisms in 2010, these mechanisms recognized their own ineffectiveness in exhibiting their mandate. Moreover, Mexico has not only shown unwillingness to take measures to fix this problem, but also has been shielding those soliciting and ordering the commission of these crimes. Bernard concluded his speech by mentioning the names of a number of journalists who have lost their lives as a part of the alleged widespread and systematic crimes and requested the Prosecutor to take the decision to open a PE on the alleged crimes against journalists committed by Mexico against journalists.

The final speaker, Michelle Reyes (WIGJ), addressed the issue of sexual violence as a crime against humanity. She noted that there is a general lack of understanding of the meaning of ‘sexual violence’ and its relation to crimes against humanity. Moreover, she explained that while the Rome Statute does mention sexual violence as a crime against humanity, it does not provide a definition for the term ‘sexual’ in the Elements of Crimes. She further highlighted the importance of closing this gap, and explained the role of civil society and campaigns, such as “Call It What It Is,” in helping to establish a definition of this term through creating practical guidelines. WIGJ has partnered with other civil society organizations in Colombia, in which there is a great level of impunity, particularly in cases of sexual violence and have tried to identify the main obstacles in prosecuting sexual violence. Through these surveys, the organizations aim to understand the Colombian view and the Colombian domestic law on sexual violence, which can respectively and in line with the principle of complementarity, help the work of the ICC and other international organizations.

At the end of the side event, the panel opened space for questions. Some of these concerned the status of specific cases, like the one related to the status of a case against Mexico, initiated by the lawyer Netzaí Sandoval in November 2011. One of the panelists, Guzmán Vergara noted there have been no updates since the 18th ASP, when Mexico was in phase one of the investigation. Additional questions concerned ways to assure celerity in investigations to stop killings urgently, and the current situation of human rights activists in these states.

The side event concluded with an invitation to look at the FIDH’s recommendations to the 19th Session of the Assembly of States Parties to the Rome Statute at: https://www.fidh.org/en/issues/international-justice/international-criminal-court-icc/icc-ahead-of-19th-asp-fidh-issues-recommendations-to-strengthen-court.

ASP19 Side Event: International Expert Review of the ICC: Civil Society Perspectives on Next Steps

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES

8 December 2020

Name of the Side Event: International Expert Review of the ICC: Civil Society perspectives on next steps (co-hosted by Human Rights Watch (HRW), International Federation for Human Rights (FIDH), & Liechtenstein, Spain, Switzerland, and Sierra Leone)

Report by: Isabelle Jefferies, Junior Research Associate PILPG-NL

Highlights:

•  In this event, members of civil society engaged in a discussion on the International Expert Review of the International Criminal Court (ICC).  The review was commissioned by the Assembly of State Parties in December 2019, and delivered its final report containing extensive recommendations on September 30, 2020. 

• The conversation focused on the next steps to be taken, and in particular, on the role civil society has in this regard.  Given its firsthand experience of the impact of the Court’s shortcomings, notably on victims and other affected communities, civil society has a unique perspective within the system of the Rome Statute. 

• The panel was unanimous in stating that civil society must play a key role in the implementation and monitoring of the recommendations made in the review.

Summary of the Event:

The ambassador for Sierra Leone began the conversation by emphasizing the significance of civil society within the system of the Rome Statute and the continued importance of this system in promoting the global fight against impunity.  He drew attention to the importance of a continued commitment by all stakeholders to the Court, if the review process is to be successful. The ambassador for Liechtenstein also commented on the value of incorporating the voice of civil society in the review process. It is crucial to remember that without civil society, the Rome Statute would not have come about in the first place.  Also, the review comes at a time when multilateralism is being undermined, and the Court faces increasing political attacks and widespread criticism, so its importance cannot be understated. 

After these introductory comments made by the spokespersons of the event sponsors, questions were put to the panelist.  In particular, they were asked to share their views on the substance of the recommendations made in the review, especially those relating to victims’ rights and engagement with impacted communities.  Nino Jomarjidze, representing the Georgian Young Lawyers Association and the Georgian Coalition for the ICC, began by recalling that this review was an opportunity to strengthen the ICC and the Rome Statute system as a whole, and importantly, to deliver justice for victims. She raised some concerns with regards to the recommendation that the Office of the Prosecutor (OTP) should apply a higher threshold of gravity with regard to preliminary examination.  In her view, this would result in further restrictions to the jurisdiction of the Court, and would cause disappointment to victims of serious international crimes.

Shawan Jabarin, from the Palestinian Rights Organization Al-Haq and the International Federation for Human Rights (FIDH), welcomed the recommendation that the Court should strengthen its relationship with civil society, and also bolster the place of victims within the Rome Statute system. He noted the recommendation made by the FIDH that a review mechanism should be created, whereby a body appointed by the bureau would have the mandate of planning, coordinating, and monitoring the implementation of the review, in consultation with civil society members. This would facilitate the effective and swift implementation of the recommendations. He noted that the experts failed to recommend an increase in the Court’s budget, and instead recommended ways in which it could become more efficient. For Jabarin, this would simply limit the number of cases taken on by the Court, and delay the investigation of the ones it does take on.  Overall, this would simply cut the Court’s ability to fight impunity.

Leila Sadat, James Carr Professor of International Criminal Law at Washington University, Director of the Whitney R. Harris World Law Institute, and Special Adviser on Crimes Against Humanity to the ICC Prosecutor, commended the Expert Review, which was delivered on time, despite the ongoing COVID-19 pandemic. The report came up with some creative recommendations on how to improve the efficiency and quality of the Court’s jurisprudence and should help the Court move forward in a positive direction.

Chino Obiagwu, from the African Network for International Criminal Justice, was also satisfied with the recommendations and commended the report generally.  However, he believed a number of political questions, which are highly relevant, lacked consideration, such as funding or problems of cooperation by State Parties.

The panel was also asked to discuss what the steps should follow after the delivery of the report.  Some of the key comments made by the panelist were that the recommendations should be implemented in a timely and effective manner.  However, they conceded this will not be an easy process, as it will require resources that the Court simply does not have.  As a result, it may be useful for stakeholders to engage in dialogue with each other, in order to prevent an overlap on their respective work in the implementation of these recommendations.  Furthermore, civil society should be included in the implementation process.  Another suggestion of the panelist was to create a strategy of implementation.  In fact, certain recommendations should have priority over others, whereby the ASP could start with “low hanging” areas which can be implemented with little political resistance and without significant changes to the rules of the Court.

Richard Dicker, Director at Human Rights Watch, joined the conversation to express his concerns on ensuring that judicial and prosecutorial independence is preserved throughout the reform of the court. The ASP should not be interfering with the ongoing functions of the judiciary and the prosecutor. It is crucial that the Assembly of State Parties separate the areas that are completely within the independence of the Prosecutor and the judiciary, from the areas that concern the functioning of the Court as an international organization.  Jabarin emphasized the role of civil society in this regard, as they do not play a political role and will not compromise when it comes to such principles.  

The panel was then asked to consider the recommendation made in the report concerning the creation of an Office for the Defense.  In general, the panelists agreed with this recommendation. In fact, a strong and professional defense would be beneficial to the OTP as it would enable the proper conduct of cases, as well as the preservation of the rights of all parties.  Moreover, this would enable the implementation of a code of conduct for the counsel for defense, and would also ensure that defense has appropriate resources, which could in turn reduce delays in the proceedings.

The panel then considered the role that civil society should play in implementing or monitoring the reforms after the implementations of recommendations concerning the culture within the Court, and notably the issues surrounding sexual harassment and bullying. The panelists touched upon the fact that it is actually civil society that had been pushing for the review of the Court for so long, and that now that the review has come, they will continue to engage with its implementation. 

The conversation concluded with comments made by the Spanish Representative to the UN, Maria Bassols Delgado, who guaranteed Spain’s full support of including in the review of the Court.

ASP19 Side Event: Ending Violence Against Women and Girls under the Rome Statute System

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

8 December 2020

Name of the Side Event: Ending Violence Against Women and Girls under the Rome Statute System (Co-hosted by the Dominican Republic, Finland, and Trust Fund for Victims (TFV))

Report by: Marielotte van Ballegooijen, Junior Research Associate PILPG-NL

Highlights: 

• The Side Event was hosted by the TFV in support of the 2020 UNiTE Campaign Theme: "Orange the World: Fund, Respond, Prevent, Collect!”, 16 Days of Activism against Gender-Based Violence (25 November to 10 December 2020). 

• Panelists underlined the importance of States Parties to the CEDAW to financially contribute to the TFV.

• Panelists noted that CEDAW States Parties should hold perpetrators of violence against women accountable so victims are given hope and are encouraged to testify. 

Summary of the Event: 

On the first day of ASP side events, this virtual event was organized by the Trust Fund for Victims (TFV) in support of the 2020 UNiTE Campaign Theme: Orange the World; Fund, Respond, Prevent, Collect!. The moderator of the event, Ms. Franziska Ecklemans, legal advisor at the TFV, started by introducing the panelists: Chief Prosecutor Ms. Fatou Bensouda, Ms. Minou Tavarez Mirabal, and Ms. Mama Koite Doumbia. Ms. Ecklemans also introduced the co-hosts of this event, the Ambassador of Finland, H.E. Päivi Kaukoranta, and the Ambassador of the Dominican Republic, H.E. Guillerm Pina-Coñtreras.

Following these introductions, H.E. Kaukoranta started the event by referring to Finland’s leading role in both gender equality and in the prevention of violence against women and girls. Finland is an avid contributor to the TFV, specifically contributing to compensation for women who have experienced sexual violence. Next, H.E. Pina-Contreras described the history of the UN International Day for the Elimination of Violence Against Women. On 25 November 1960, sisters Minerva, Patricia, and Maria Mirabal, political activists against the regime in the Dominican Republic, were brutally murdered under the direction of then-president Trujilo. Their assassination serves as a symbol for the victimization of women and in 1991, the UN General Assembly declared 25 November as International Day for the Elimination of Violence Against Women.

Ms. Minou Tavarez Mirabal, member of the Board of Directors of the TFV and daughter of Minerva Mirabal, as mentioned above, highlighted the importance of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Day. Ms. Mirabal noted that because half of the world comprises women, the issue of violence against women forms a central challenge we face as a planet. Ms. Tavarez Mirabal subsequently called upon all states to take three actions. First, states should implement the CEDAW in order to give hope to women and girls who have experienced violence. Second, states should commit to prosecuting individuals suspected of violence against women and hold perpetrators accountable. Third, states should focus on victim reparations, which can take any form, such as monetary compensation or truth-seeking. Ms. Tavarez Mirabal concluded by pleading to all CEDAW States Parties to contribute financially to the TFV to support it in fulfilling its important mandate. 

The event then included testimonies of four women who suffered violence at the hands of the Lord’s Resistance Army (LRA) in Uganda. In their testimonies, the women described how the TFV helped and empowered them. One survivor, Ms. Akello Brenda, shared her story of being abducted by the LRA and forced to commit atrocities, or have such atrocities committed against her, such as rape. When she returned home, she was stigmatized and ostracized by her community. The TFV helped her by providing counseling, compensation, and assisted her to visit a hospital to be treated for the violence she had suffered at the hands of the LRA.

After these testimonies were shown, Chief Prosecutor Fatou Bensouda shared how she was inspired during her time as a court clerk in the Gambia by the countless courageous women who came forward to share the violence they endured. Ms. Bensouda noted that these stories empowered her to try to help victims as ICC Prosecutor. She underlined the importance of the Rome Statute as the first international instrument that uses the term “gender” in relation to violence. It is also the first international instrument that defines what gender-based violence is and what crimes fall under that definition. Similar to Ms. Tavarez Mirabal, Benosouda called on the empowerment of women and girls in order to continue the fight to prevent violence against them and to create a better world for generations to follow.

Ms. Mama Koite Doumbia, Chair of the Board of Directors for the TFV, concluded the event with remarks on the gravity of the situation as well as thoughts for the future, reiterating the importance of the commitment of States Parties to the CEDAW, both financially and politically, to the TFV. She noted that although the situation is grim around the world, the situation is particularly grave in Africa and that millions of victims could be helped if both compensation funds and political measures are enacted upon.

ASP19 Side Event: La transition politique et la lutte contre l’impunité au Mali

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

8 December 2020

Name of the Side Event: La transition politique et la lutte contre l’impunité au Mali (co-hosted by Lawyers Without Borders Canada (LWBC) and International Federation for Human Rights (FIDH))

Report by: Paul Weber, Junior Research Associate PILPG-NL 

Highlights: 

• Impunity for international crimes and extra-judicial releases of suspects of serious international crimes in Mali contribute to eroding trust in the institutions.

• Lack of political will and the ongoing peace negotiations, in which prisoner releases are part of compromises, prevent the ending of impunity for crimes committed in Mali.

• Civil society organizations are engaged in fact-finding missions and in advancing cases in Mali, yet struggle with the lack of resources and consequences of the COVID-19 pandemic.

Summary of the Event: 

On Tuesday, 8 December, Avocats sans Frontières (ASF) Canada, together with the International Federation of Human Rights (IFHR) and the Moroccan Association of Human Rights (AMDH) in association with the Belgian Permanent Representation to International Institutions in the Hague, organized a side event to the 19th ASP on the situation in Mali. Since the end of the conflict in Mali, the country has been in a political transition period, slowly returning to peace. However, impunity for the crimes perpetrated during the period of violence is threatening the efficiency of the peace process. 

The event started with a welcome note by H.E. William Roelants de Stapper, the Belgian Permanent Representative to the International Institutions in the Hague. H.E. Roelants de Stapper noted that Mali faces a difficult road to peace and emphasized that the fight against impunity for international crimes committed during the conflict remains a crucial step for a peaceful future. The event’s moderator, Ms. Drissa Traore, secretary-general of IFHR, gave the word to Mr. Cheick Diakité, who is charged with strategic litigation for ASF Canada. Mr. Diakite emphasized that a successful political transition for Mali requires the punishment of human rights violations. He reported on promising initial steps towards providing justice to victims of instances of mass violence. Nevertheless, Mr. Diakité expressed concern that steps towards strengthening the judicial system had faltered in the face of another military uprising this year.

The following speaker, Mr. Drissa Traore (coincidentally having the same name as the moderator), reported on the far-spread occurrence of extrajudicial releases of suspects of crimes. Mr. Traore, who is joint coordinator of IFHR and AMDH for Mali, expressed deep concern toward the ease with which high profile suspects were released without protocol. He noted that the release of prisoners remains an important bargaining chip for the government in its negotiations with armed militias in the country. Furthermore, releasing imprisoned militia fighters is often used to in turn achieve the release of hostages. However, on several occasions, the government set free suspected perpetrators of serious violations of human rights before or even while they were standing trial. A number of offenders were released after their conviction. In all these instances, the government had not applied protocol, nor ensured that victims would be granted the compensations courts had ordered. Mr. Traore reported that these high-profile instances of impunity have increased distrust in judicial institutions in Mali. He identified a lack of political will within Mali as a main driver of impunity. Though he was sympathetic to the government's need to compromise, he remarked that justice should not be sacrificed in negotiations. 

Mr. Mamadou Diarra, a Malian lawyer and founder of ASF Mali, then directed the focus of the event to victim needs. In the face of torture, arbitrary detentions, and other serious human rights violations, he emphasized the desire for justice, reparations, and peace. The Malian judicial system has to guarantee that trials are completed. In particular, the lack of trained personnel and resources prevents this from being possible, according to Mr. Diarra, also highlighting cooperation with the ICC as a possible way out of the current dilemma. ICC involvement could assist the fight against impunity. Furthermore, civil society could have an important role in sensitizing the population to the issue of impunity and in the gathering of evidence for trials. Nevertheless, for Mr. Diarra, the most important step remains ending the state’s practice of extrajudicial release of prisoners. “Justice done improperly is no justice at all”, he concluded. 

During the question and answer section of the event, participants further touched upon ways out of the current situation of impunity in Mali. The impact of the COVID-19 pandemic played a special role here. Mr. Traore reported that the virus had further complicated access to witnesses and victims and the gathering of evidence by human rights organizations. The panelists agreed that a way out of the dilemma would not require new mechanisms, but that the government should instead focus on improving and ensuring the effectiveness of existing judicial mechanisms. Lack of political will resulted in alternative approaches such as fact-finding missions being left without consequence. In ending impunity in Mali, panelists agreed, attention should be paid to strengthening the rule of law and the independence of the judiciary. 

ASP19 Side Event: Addressing Sexual Harassment in International Organizations – Best Practices from Human Rights Organizations for the ICC Elections

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

8 December 2020

Name of the Side Event: Addressing Sexual Harassment in International Organizations – Best Practices from Human Rights Organizations for the ICC Elections (co-hosted by Austria, the Netherlands, Open Society Justice Initiative (OSJI), and Women Initiatives for Gender Justice (WIGJ))

Report by: Rachel Grand, Research Associate PILPG

Main Highlights: 

• In the past few years, greater attention has been brought to the need to address sexual violence and harassment in the workplace at international organizations, including at the ICC.

• Panelists underlined that protocols should be in place to address sexual violence and harassment in the workplace, as well as a code of misconduct explicitly designed for international organizations. 

• A cultural shift away from normalizing sexual violence and harassment in the workplace requires comprehensive vetting of leadership and a commitment at all levels of the organization, particularly among those in positions of power.

Summary of the Event: 

After introducing the panelists, Ms. Alix Vuillemin (WIGJ) kicked off the event by highlighting the topic's relevance in light of this ASP’s election of a Prosecutor as well as six new judges. 

Ms. Macarena Saez, Faculty Director for the Center for Human Rights and Humanitarian Law at American University, presented findings from a 60-page report compiled over five months on gender and sexual-based violence within international organizations, specifically referring to applicable laws and best practices to establish guidelines for international organizations when addressing sexual violence and harassment. The report did not aim to create a model code of conduct or protocol, as each institution requires its own institutional diagnosis to understand the factors that contribute to the specific organization's culture. The diagnosis should be based on interviews, surveys, assessment of risk factors, and a complete analysis of policies and procedures within the organization to see how they contribute to sexual harassment or prevent people from coming forward. Ms. Saez noted that a comprehensive code of conduct that binds all people by the principle of equality and non-discrimination is necessary to change the institutional culture.  

The report concludes that the two most important instruments for an international organization are: 1) a code of conduct and 2) a protocol to receive and investigate allegations of sexual harassment, both following the principle of non-discrimination, victim-centered, and accessibility. Additionally, the suggested best practices should have a broad scope of those who are protected from violence and harassment and bound by the code of conduct (consisting of those affiliated with the organization and external audiences). The protocol does not need to have a legal standard but should rather focus on ensuring reparations for those who have suffered and on creating a change in the organization's environment rather than remaining a private event. Another way to generate a cultural shift is regular mandatory training; however, these are only effective if they are designed with situations that arise within the particular organization in mind. Ms. Saez noted that those in positions of high authority within the organization should commit to creating a culture free of sexual violence and harassment. Along those same lines, there should be a commitment to gender parity at all levels and transparent hiring processes to foster an environment free of sexual harassment further.  

Ms. Saez further underlined the importance of having a specific office or person in charge of claims of sexual violence or harassment who ensures confidentiality, an easiness to submit claims, a broad timeframe to submit a claim (at least three years), and who gathers evidence. The (at minimum) three stages in the reporting process – advice, investigation and evidence gathering, and determination of sanctions and reparations - should involve different people. 

In the Q&A part of the event, Ms. Saez emphasized that leaders must convey a commitment to creating a cultural shift away from normalizing sexual violence and harassment within international organizations, for instance expressed in messaging on the website and in contracts. 

Ms. Kelsey Froehlich, a partner at the Mintz Group, spoke next on vetting and background check processes. This information was particularly timely given civil society organizations' recommendation for a comprehensive vetting of candidates for the next ICC Prosecutor. Ms. Froehlich highlighted the importance of background checks to weed out potential bad actors before the process of onboarding a key hire or appointment.  Specifically, she discussed the appropriate level of vetting for an appointment for a position of moral authority, including three levels of background checks: (1) basic criminal background checks; (2) further study into civil litigations, detailed press, and social media research to identify potential patterns; (3) more thorough examination on online forums where bad actors within an industry may be discussed and interviewing references and non-references, such as individuals the person has managed). 

Ms. Froehlich concluded by highlighting the elevated consciousness of sexual violence and harassment in recent years that has brought more allegations to light, which can be discovered through a comprehensive vetting process for those appointed to serve in leadership positions. 

Lastly, Ms. Ruth Frolich, President of the ICC Staff Union, highlighted that while the ICC has taken steps in recent years to reduce workplace misconduct, concerns remain. She noted that this is due to the complexity of addressing the issue, as well as how deeply embedded it is in many international organizations' cultures. Similar to the other speakers, Ms. Frolich highlighted the importance of leadership and fostering more in-depth and informed conversations rather than the normalization of harassment. A code of conduct that includes policies and is implemented by leadership and personnel can be helpful in this regard. 

The ICC Staff Union advocates for staff's rights and well-being through policymaking and individual staff assistance in employment matters. In the past three years, the Union has examined harassment and discrimination issues at the ICC, which included launching a survey. The Union published a policy paper on harassment, which the Court is currently using to amend its policy, and launched an awareness-raising campaign encouraging speaking up against harassment. Ms. Frolich highlighted that staff in the past few years have gained a greater understanding of their rights. Yet, there is limited success and room for improvement to update the framework, create a mediation mechanism, and gain further support from leadership. She specifically mentioned that those in positions of power, such as the ASP, must lead by example, hold individuals at all levels accountable, and provide financial and political support.

Ms. Frolich concluded by emphasizing that the ICC’s legalistic culture tends to approach all problems as legal problems; however, not all types of harassment can be dealt with using the legal perspective and they should involve health specialists and human resources. Ms. Frolich added that the whistleblower policy, being quite broad and rudimentary, could see improvements to protect individuals from retaliation in principle and more concretely. Making such adjustments to ending the normalization of harassment could also improve staff's productivity and, therefore, the Court’s overall performance.

Ultimately, the three panelists agreed that creating an environment free of sexual violence and harassment at international organizations constitutes a long term process that requires transparency at every step of the hiring process, a properly formulated and implemented code of conduct specific to the international organization, constant re-enforcement through training and messaging, and leadership support.