ASP19 Side Event: Ecocide as an international crime: key considerations

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

Friday 11 December

Name of the Side Event: Ecocide as an international crime: key considerations (co-hosted by Stop Ecocide Foundation, Institute for Environmental Security & Vanuatu)

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

Main Highlights: 

• At the 18th ASP in 2019, the small island States Parties of Vanuatu and Maldives addressed the urgent need for “Ecocide” to be incorporated into the Rome Statute.  In essence, this would criminalize mass damage and the destruction of ecosystems.  The movement gained momentum, with prominent states such as France and Belgium expressing their support for the cause.  

• In November 2020, a panel was convened by the Stop Ecocide Foundation to draft a legal definition of Ecocide as a potential international crime that would sit alongside genocide, crimes against humanity, and war crimes. 

• The drafting process will begin in 2021, and this event covered the key legal, historical, and political implications of the proposed plan. 

Summary of the Event: 

The event was co-hosted by the Republic of Vanuatu, the Stop Ecocide Foundation, and the Institute for Environmental Security. A distinguished panel of speakers, including three members of the drafting panel, gave their views on the proposed plan to adopt a legal definition of ecocide. The panel consisted of Philippe Sands QC, barrister at Matrix Chambers and Professor at University College London, Kate Mackintosh, Executive Director at the Promise Institute for Human Rights and Professor at UCLA School of Law, Marie Toussaint, Member of the European Parliament (Greens/EFA), and Judge Tuiloma Neroni Slade, former ICC judge. The event was moderated by Andrew Harding, Africa correspondent for the BBC. 

Mr. Dreli Solomon, representative of Vanuatu, welcomed the attendees by emphasizing the seriousness of the ongoing climate crisis, and recalled the importance of solidarity if progress is to be achieved. Mr. Pekka Haavisto, Finland’s Minister for Foreign Affairs, also stressed the seriousness of the ongoing climate emergency. He added that the small island states of the Pacific and the Indian Ocean are the first to suffer the consequences of the changes we are seeing in the climate, and they desperately need the support and reaction of the international community.   

Each speaker was asked to give some introductory remarks. Mr. Philippe Sands QC began by paying tribute to Polly Higgins, one of the most influential figures in the green movement, who continues to inspire those involved in the development of the crime of Ecocide. Prof. Sands will chair the ecocide drafting panel, and started by giving some context to international criminal law. Before 1945, war crimes were the only codified international crimes.  fter the Second World War, new crimes were created, and were applied retroactively to those accused of atrocities, namely, crimes against humanity and genocide. Mr. Sands was persuaded to participate in the drafting panel for Ecocide as he recalled Raphaël Lemkin and Hersh Lauterpach, two crucial figures in the drafting of the above-mentioned crimes. They were crucial in the enactment of these crimes by bringing their ideas to the table, and he hopes to do the same with ecocide.  

The extensive impact of human activity on the environment only began to enter into the consciousness of people around the world in the 1970s with the Stockholm Conference. Crucially, in 1996, in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice stated that the protection of the environment is part of customary international law. Twenty-five years later, the extraordinary challenges we face as human beings, and that are faced by the ecosystem and all they contain, are more prominent than ever. Prof. Sands emphasized that the time has come to harness the power of international criminal law to effect change for the better. He emphasized that he is not starry eyed, and that he is aware that there will be many challenges. Notably, he is concerned about using the definition of genocide too closely in the drafting of Ecocide, as the former requires that the intention to destroy a group in whole or part is proven, and this is complex.  Therefore, the drafting panel, whose terms of reference are strictly restricted to coming up with a definition of Ecocide, must take the best from the definition of crimes against humanity, the best from the definition of genocide, and perhaps some aspect from war crimes. They must then meld from this something workable and effective. In other words, the legal definition of Ecocide must not be overly onerous, but on the other hand, it must not open the floodgates. It must deal with real situations, when one or more human beings recklessly, or with intent, proceeds to destroy the environment or a part of it, on a massive scale. Prof. Sands is satisfied with the composition of the panel, as it is very broad ranging, which will allow for a constructive debate. He assures stakeholders that the panel will have a close regard to the practice of international courts and tribunals in order to come up with a feasible definition in the next six months. 

Kate Mackintosh, also a member of the drafting panel, continued the discussion with her introductory remarks. She first introduced the history of Ecocide, a term that was coined by Professor Falk in 1973, when he proposed an International Convention on the crime of Ecocide in response to the use of agent orange and environmental destruction during the Vietnam war. Prof. Falk had drawn his inspiration for his definition of Ecocide from the Genocide Convention. Moreover, the destruction of the environment during armed conflict or for other hostile purposes was then prohibited by two new conventions, namely the First Additional Protocol to the Geneva Conventions (1977), and the Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (1978, ENMOD). Also, in 1985, the UN Committee on the Prevention of Discrimination and the Protection of Minorities proposed broadening the definition of genocide to include adverse modifications to the environment, which threaten the existence of entire populations, such as through nuclear explosions, chemical pollution, acid rain, or the destruction of rain-forest. Prof. Mackintosh drew the attention of the audience to the fact that there is a contrast between these definitions: some are anthropocentric, whereby the elements of the crime require harm to humans, and others are eco-centric, whereby harm to the environment is enough in itself. This is an issue which the drafting panel will have to deal with. Moreover, she recalled that the Rome Statute references the war crime of causing long-term, widespread and severe damage to the natural environment in international armed conflicts. However, this is subject to the proportionality test of anticipated military advantage. In drafting a legal definition of Ecocide, the panel will draw inspiration from the above mentioned sources.

Prof. Mackintosh then touched upon the issues that will be taken into consideration by the panel. She referred to the work of a committee of experts on international criminal law that convened in early 2020 at UCLA. The first issue she anticipates is whether the panel should go for a broad definition that catches climate change, or a more narrow focus that focuses on massive environmental damage. The second issue will be whether harm to the environment should be punished per se, or whether it has to be linked to human harm. The anthropocentric approach is limited given that it can take time for the harm caused to humans as a result of environmental damage, to show.  Lastly, ecocide would need to be forward looking due to the principle of legality. However, this brings the risk of skewing responsibility unfairly towards the Global South, so the panel may need to come up with a similar principle to the Common but Differentiated Responsibility adopted by the United Nations Framework Convention on Climate Change (UNFCCC).

Marie Toussaint continued the introductory remarks by noting the revolutionary nature of the ecocide drafting panel. Although she predicts some legal difficulties in the drafting process, she believes it has the potential to change the way in which humans apprehend and interact with nature and ecosystems around the world. In August 2018, French President Emmanuel Macron denounced the inaction of Brazilian President Jair Bolsorano concerning the deforestation of the Amazon. He used the word Ecocide to describe the events, allowing the word to gain traction. However, Ms. Toussaint noted that despite the President committing to pushing for the recognition of Ecocide at the international level in January 2020, nothing has been done in this regard. Moreover, the Yellow Vest Movement saw people take to the streets and demand fairer climate policies, that are currently deemed to be too strict on the poorest levels of the populations, and too lax on the richest even though they are often the ones that pollute the most. Yet, she believes that the French government is refusing to recognize the intrinsic value of nature, and that for them, nature is merely something to serve the interest of human beings. Ms. Toussaint stressed that Ecocide should not be emptied of its content, especially in the national jurisdiction of a state that is hoped to be a big supporter at the international level, such as France.  

However, France is not the only purported supporter of Ecocide. In Belgium, Samuel Cogolati presented a motion in the national assembly which seeks to recognize Ecocide within the national law, and support it as an international crime at the ICC. A new government was formed, but they are still working on this proposal. This is a huge step forward, especially as a member state of the European Union. She further spoke about the important role of Sweden in the creation of the drafting panel. Ms. Toussaint stated that she would like to see EU commitment to support the recognition of Ecocide at the international level, and also within EU law. This can be achieved through a new Regulation for the recognition of Ecocide, or through the revision of a 2008 Directive on the Protection of the Environment for Penal law. She concluded with a call on participants to get in contact with their local parliamentarians, if they are honest and committed to the environment, to join the ecocide alliance.

Tuiloma Neroni Slade, who has spent decades fighting for the rights of small island states, was the last to give his introductory remarks. As a Samoan, he emphasized his personal perspective on the relevance of Ecocide. He spoke about the Pacific islands, and how they have been misused and abused, mostly through the careless nature of human activities. He used the example of plastic, which has been recognized as a global issue since the 1960s, but the problem has expanded disastrously. He also talked about the disastrous destruction of coral reefs on a massive scale, due to bleaching that is caused by ocean acidification. Other factors that substantially compelled the Pacific’s precarious environmental situation are that it was used as a theatre of war for Western nations. Judge Slade stressed that the Pacific communities had no part in the causes of war, yet they became the object of the atrocities and the scourge of war. The pacific was a testing ground for weapons of mass destruction.  

In support of the concerns expressed by the representative of Vanuatu and the Maldives at the 18th session of the ASP, Judge Slade emphasized that small islands states are the least responsible for global carbon emission, yet, they are among the first and most severely impacted by the consequences of the climate crisis. Their predicament is made worse by their precarious living situations, they are small communities that do not have the coping capacity, or the resources and technology to defend themselves from the disasters that occur as a result of the changes in the climate. He further mentioned cyclones, and the devastation they bring. For instance, Vanuatu lost over 65% of its GDP to Cyclone Pam in 2015. As science has predicted, these so-called “super-cyclones” have become more destructive in their frequency, and in their high wind intensity. The struggle for survival is real, so people face the inevitable choice of out-migration and leaving islands altogether. Judge Slade stressed that the Alliance of Small Island States fear that what is happening to them, will inevitably happen to others, as demonstrably is already happening around the world.  He concluded with expressing belief that small islands should serve as the global frontline warning system to others.  

The event then moved on to a Q&A session, during which participants were given the opportunity to present their questions to the panelists.The first question was as follows: why is it more advisable to invest time and resources in establishing a crime of ecocide than in making better use of existing norms and procedures to address environmental destruction? Prof. Sands provided his thoughts and stressed that the crime of Ecocide should not be seen as a “magic bullet” that will solve all the issues surrounding the climate crisis. However, criminal law is a useful tool which will raise consciousness as to the seriousness of the issue at hand. He noted that the Rome Statute could be amended, and a new category of crimes against humanity could be created. However, words matter as proven by the attention that is captured when the word genocide is used. By contrast, the word crime against humanity does not get as much attention. However, he is adamant in the necessity to move away from the anthropological definition of ecocide.

The second question put to the panel was the following: if ecocide is criminalized, how would the continued refusal of the US to sign on to the Rome Statute affect the potential to prosecute US corporations? Prof. Mackintosh gave her views on this and she stated that the ICC has a number of alternative bases for jurisdiction, with the principal ones invoked being territory and nationality jurisdiction. Hence, if US corporations were to have subsidiaries in a state that is a State Party to the ICC, the latter would have jurisdiction to examine, investigate, and possibly prosecute the crimes they are alleged to have committed. Also, the ICC has used an “effects” approach, whereby if the effects of a crime are felt in a State Party, the ICC has jurisdiction. 

Moreover, the panel was asked to share its view on national initiatives to define Ecocide in their national legislations, but that may not seize the full magnitude of the offence and may therefore prevent further legal evolution or from efficient prosecution of on-going serious harm to the environment. Prof. Sands explained that the international arena is only going to be a backstop for the criminalisation of Ecocide.  In fact, it is for national courts to deal with this primarily. As a result, the role of the Ecocide drafting panel is to come up with a definition that works domestically. 

Lastly, the panel was asked to give some examples of initiatives that they believe could be taken by attendees to support the codification of Ecocide as an international crime. A general consensus among the panelists was that those committed to the codification of Ecocide as an international crime should write to their relevant members of parliament, and push them to support the cause. Prof. Sands also told attendees that the drafting panel would send out a call for submissions when they begin their work in early 2021. Marie Toussaint recommended attendees to support the Stop Ecocide campaign and to sign petitions. Jojo Mehta, co-founder of the Stop Ecocide Campaign, concluded that the use of the Ecocide in itself, to describe the mass damage to nature, cannot be undermined.

ASP19 Side Event: Future of International Justice: Accountability Mechanism for Grave Crimes in Ukraine

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

11 December 2020

Name of the Side Event: Future of International Justice: Accountability Mechanism for Grave Crimes in Ukraine (Hosted by the Ukrainian Legal Advisory Group)

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

Highlights: 

• Panelists underlined the challenges of investigating grave crimes committed in Ukraine, particularly the intimidation of witnesses and disappearance of evidence at the national level.

• Panelists noted that even if the international community assists in addressing these investigation challenges, structural changes are required within the Ukrainian justice system to achieve accountability. 

Summary of the Event: 

This side event, organized by the Ukrainian Legal Advisory Group (ULAG), brought attention to accountability for alleged grave crimes committed during the armed conflict in Ukraine. Five years ago, the Office of the Prosecutor (OTP) opened a preliminary examination into the crimes committed in Ukraine. At the same time, Ukrainian authorities conducted their own investigations. This side event aimed to address a specific question related to the ICC’s principle of complementarity: How should the nexus between the Ukrainian state’s responsibility to investigate and prosecute grave crimes and the role of the ICC be balanced? 

The moderator of the event, Ms. Nadia Volkova, Director of ULAG, introduced the panel consisting of Ms. Valeriya Melnik, Mr. Akardiy Bushchenko, Ms. Katrin Weilhammer, Mr. Eric Witte, Ms. Priya Pillai, and Mr. Rod Rastan.

Moderator Ms. Volkova directed the first question to Ms. Melnik, Prosecutor of the Department for the Supervision of Crimes Committed During Armed Conflict under the Office of the Prosecutor General of Ukraine, on the challenges the Department faces when trying to achieve accountability. Ms. Melnik noted that the first challenge is that Ukraine struggles to effectively conduct investigations, mainly due to its relatively weak justice system. She mentioned issues such as the temporal scope of the alleged crimes that hinder the investigation process. For instance, victims and alleged perpetrators continue to reside in occupied territory, which means conducting discussions or interviews with them is impossible. Besides this, a procedural challenge is that under Article 219 of the Ukrainian Criminal Code, pre-trial investigations need to be conducted within eighteen months after the alleged crimes were committed. This poses a time limit problem that contradicts the Rome Statute, under which no statute of limitations is applicable to war crimes. 

Following Ms. Melkin’s remarks on these challenges, Mr. Bushchenko, Judge of the First Chamber’s Criminal Cassation Court in Ukraine, noted that war crimes prosecutions are extremely difficult in Ukraine. He described that the Department is working alone with few resources, which may lead to the disappearance of evidence or intimidation of witnesses. He proposed to structurally reform the Ukrainian justice system to improve investigations, witness protection, and perpetrator interrogations. Although these issues occur at the national level, he noted that the ICC could assist Ukraine with restructuring, as offices such as the OTP could lend resources to aid in pre-trial investigations.

After panelists with experience at the national level had spoken, the moderator invited panelists from the international level to share their thoughts. Ms. Weilhammer, Head of the National Justice Programme of Justice Rapid Response, noted that, besides the already mentioned challenges related to the Ukrainian legal framework, there are also certain capacity and evidentiary challenges as well as challenges with prosecutorial strategy. A further identified issue at the national level is witness management and witness protection. The final main challenge Ms. Weilhammer pointed to concerns victim participation. Ms. Weilhammer described that at the national level prosecution tends to focus on perpetrators, but argued that this approach should be shifted to include victims as well. This could lead to more evidence, as victims would feel empowered to come forward. Ending her remarks, she concluded that these challenges do not only arise domestically, but are also challenges prosecutors and investigators at the international level face.

Mr. Witte, Senior Policy Officer at the Open Society Justice Initiative, followed by sharing potential models that could address some of the specific challenges and needs mentioned, referring to models used in other situations as reflected in OSJI’s 2018 handbook on “Options for Justice”. He specifically referred to a successful model implemented in Guatemala. The Guatemalan model, with the International Commission against Impunity (CICIG), included international prosecutors and advisors working at the national level and providing advice, mentorship, and legal knowledge on how to move forward in the investigations and prosecutions, rather than taking over the work from domestic departments. This model led to multiple prosecutions, such as a genocide conviction of a previous head of state and dictator General Efraín Ríos Montt. On a final note, Mr. Witte underlined that such models should be informed by the needs of the country and that they are largely dependent on political will. They only work if, at a national level, states are willing to accept the international community’s involvement. 

Ms. Priya Pillai, international lawyer and Head of the Asia Justice Coalition, continued with Mr. Witte’s train of thought and discussed the potential importance of a coalition between the international community and states, using the Asia Justice Coalition as example. She argued that a coalition can ensure proper communication, transparency between individuals, and diversity in approaches. The existence of a coalition could also contribute to political will, as individuals are equally taken into account, and could generate both internal and external support. She noted, however, that involvement by the international community does not always lead to successful prosecutions.

The side event ended with Mr. Rastan, representative of the ICCs OTP, with remarks on the PE in Ukraine and complementarity. Mr. Rastan briefly referred to the debate of whether the ICC takes the state’s concerns into account or whether they proceed with investigations and expect the state to simply accept their conclusions. Mr. Rastan underlined that the ICC wishes to support national authorities in their accountability efforts. He further reiterated what the OTP had mentioned at last years’ ASP: that the OTP has identified crimes committed in Ukraine that fall under the Court’s jurisdiction and that the OTP has noted the actions undertaken by Ukrainian authorities as well as challenges at the national level. Building on this, Mr. Rasten informed participants that an announcement on the PE will be made later today. If an investigation were to be opened, he continued, complementarity would remain a crucial point, highlighting the importance of continued cooperation between the ICC (as a court of last resort) and Ukrainian national authorities in the fight against impunity. He referred to successful examples of the ICCs complementary operation with national authorities in the Central African Republic, Libya, the Democratic Republic of Congo, and Uganda, in which the OTP was able to work with national authorities on prosecuting alleged perpetrators. He also concurred with Ms. Pillai’s point that even if the ICC proceeds with an investigation into the grave crimes committed in Ukraine, it does not end there as an ICC investigation does not mean a successful investigation nor does it resolve structural issues at the national level. If an investigation were to be opened, that would be the moment to re-emphasize close engagement between the ICC and national authorities, as well as to build a coalition or network to strengthen accountability at the national level.

A recording of the event can be found here: https://www.youtube.com/watch?v=qSmjAh6J-ek&feature=youtu.be.

ASP19 Side Event: Book Launch: Intersections of Law and Culture at the International Criminal Court

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

December 10, 2020

Name of the Side Event: Book Launch: Intersections of Law and Culture at the International Criminal Court (Co-hosted by Australia, The Netherlands, Montaigne Centre, Public International Law & Policy Group (PILPG), SIM, UGlobe (Utrecht University))

Report by: Alexandrah Bakker & Paul Weber, Junior Research Associates PILPG-NL

Highlights: 

• The ICC’s culturally steeped procedures and areas of operation offer many areas for research on the intersections between law and justice - from varying conceptions of justice, the cultural impact of language, to cultural reservations to international criminal law.

• Improved cultural sensitivity on part of the ICC might effectively counter criticisms like the “African bias” that the Court is often accused of.

• A better understanding of cultural mechanisms may improve the administration of justice by the ICC and the Court’s relationship with communities affected by violence.

Summary of the Event: 

Matthew Neuhaus, Australian Ambassador to the Netherlands and chair of the event, opened the book launch by introducing the panelists. He noted that Nikhil Narayan’s chapter, which discusses Asia’s reluctance to join the International Criminal Court (ICC), is of particular interest to Australia as a member of the Indo-Pacific. He also expressed delight at how the book engages closely with African perspectives.

Judge Raul Pangalangan, judge at the International Criminal Court, made some introductory remarks. He observed that although cultural arguments find immense currency in other fields of international law, they are rarely raised in international criminal law. He referred to the Al Mahdi case, in which he served as part of the Trial Chamber, as bearing promise of a change in this trend. He lauded the book for its nuanced reflections on the cultural features and implications of the ICC’s dispensation of justice both inside and outside the courtroom.

Julie Fraser, one of the editors of the book, observed that international law is culturally informed and is an element of culture. The book makes a novel contribution to scholarship in so far as it addresses not only the more obvious aspects of culture at the ICC but also the less visible aspects: intangible cultural heritage, justice as a concept, processes like oath taking and truth telling. Brianne McGonigle Leyh, the other editor of the book, then introduced the contributors of the book and the panelists for the event.

Dr. Leigh Swigart, the first panelist, addressed the academic motivations of her chapter on how the ICC responds to the challenge of accommodating linguistic needs in the vastly different situation countries. Swigart’s chapter draws largely from her past interviews with  ICC officers who provide and use language services. Swigart noted that language and culture are very tightly intertwined: language is a part of culture, and language is used to transmit and express culture. However, many ICC officers consider themselves as far removed from the culture of the situation countries. This underlies many institutional features of the Court such as its unspoken bias towards the English language over the French language and the privileging of legal knowledge over other kinds of expertise.

This was followed by a presentation by Owiso Owiso and Phoebe Oyugi, who have contributed a chapter on plea negotiations. Defined in Article 65 of the Rome Statute, plea negotiations are a legal device through which the accused agrees to plead guilty in exchange for a lower sentence or a lower charge (based on consultations with the Prosecutor). Even per their current conception, plea negotiations enhance the efficiency of the Court: they result in shorter trials, fewer appeals, and dispense with the need to fly witnesses to the Hague. Owiso and Oyugi argued that plea negotiations, if suitably reimagined, hold the potential to better integrate the ICC with domestic transitional justice processes. By way of illustration, in addition to pleading guilty, the accused may be required to engage in public confessions (as in the mato oput in Rwanda), and participate in reconciliation and peacebuilding activities.

Nikhil Narayan, the fourth panelist, contributed a chapter examining Asia’s relationship with the ICC. The Asia-Pacific is the least represented region among the ICC’s states parties: only 19 of the 54 states that constitute Asia-Pacific have ratified the Rome Statute. In his chapter, Narayan observed that this trend ties into a more systemic issue - the common distrust amongst Asian States towards issues of sovereignty, territorial integrity, and non-interference in domestic affairs. The “Asian values” argument is often cited to justify Asia’s reluctance to cede sovereignty to international law. This has manifested in a deep suspicion of the institutionalization of human rights law, with Asia being the only region that lacks a strong coordinating human rights mechanism. Some scholars argue that this skepticism will undermine human rights in Asia, and that Asia needs to engage more constructively with international criminal justice. Conversely, Narayan called on the ICC to engage more closely with Asia and dispel any legitimate misconceptions with regard to Western bias.

Melinda Taylor, the final panelist, spoke of how culture is often invoked and characterized as a defence to the law. Such a narrative invisibilizes the reality of law as a construct of culture. Therefore, it is not appropriate to place law and culture in opposition with each other. Taylor likened the Rome Statute to a language, where different words hold different meanings and values for different users. She pointed to the example of Rwanda, where witnesses reported “seeing things” in locations where they were not physically present, because “seeing things” held a particular significance to them. It is vital for different cultures to see their own values recognized and reflected in the Rome Statute. This could encourage a sense of local ownership and the legitimacy of the international criminal justice project.

The event concluded with questions from the audience - on community engagement and the implications of the recent American presidential elections on the US’s relationship with the ICC. Responding to a question on the ICC’s outreach activities, Owiso and Swigart spoke of how the Court’s current outreach efforts do not go far enough in integrating communities with the visions of the Court. More can be done to repackage the VPRS’ messaging so as to align it with the cultural sensitivities of the victims. Melinda Taylor further noted that outreach efforts should also seek feedback from communities on what they expect from the Court. Notwithstanding concerns of logistical feasibility, local hearings would advance this cause.

ASP19 Side Event: Human Rights Documentation by Civil Society: A Pathway Toward Accountability

19TH SESSION OF THE ASSEMBLY OF STATES PARTIES 

10 December 2020

Name of the Side Event: Human Rights Documentation by Civil Society: A Pathway Toward Accountability

Report by: Sanne Keijer & Zselyke Szantho, Junior Research Associates PILPG-NL

Highlights: 

• Technological tool developers and legal experts should work together and a dialogue between them needs to be encouraged and continued.

• Professor Margaret deGuzman stressed the importance of a clear purpose for a documentation mission, especially when interacting with victims and witnesses. This allows victims to make informed decisions. 

• Bethany Houghton highlighted that recent documentation tools need to be analyzed from a legal perspective. Once the legal community pronounces whether or not these tools meet evidentiary standards of international tribunals, civil society and tool developers can make more informed decisions about the tools they adopt. 

Summary of the Event: 

Hosted by the Public International Law & Policy Group (PILPG), this event concerning Human Rights Documentation by Civil Society offered excellent insights into the current international efforts and challenges to improve human rights documentation. Since 2018, PILPG has published two reports on documentation: Documenting Atrocity Crimes Committed Against The Rohingya in Myanmar's Rakhine State (2018), and Human Rights Documentation Solutions: Human Rights Documentation by Civil Society – Technological Needs, Challenges, and Workflows; Perspectives from Documenters, Transitional Justice Experts, and Tool Developers (2020). During this ASP side event, the panel, consisting of Milena Sterio, Margaret deGuzman, Adrienne L. Frick, and Bethany Houghton, focused on the particular difficulties civil society documenters face when documenting atrocity crimes for the purposes of accountability and shared their experiences of documentation in Bangladesh/Myanmar.

Dr. Gregory Noone welcomed everyone and started the conversation by asking an important question. How can civil society establish a method of documentation which can help achieve accountability goals? This underscored the importance of strong methodology and workflow which will assist documentation. There are common struggles human rights documenters face, which highlights the need for more discussion and knowledge sharing.

Dr. Gregory Noone continued with a question on the main findings of the 2018 Rohingya report directed at Adrienne Fricke. She responded that reasonable grounds exist to believe crimes against humanity, war crimes, and genocide have been committed in Myanmar’s Rakhine State. The report is based on a large-scale investigation in which Adrienne Fricke participated as an investigator. 

Dr. Gregory Noone then turned to Bethany Houghton, asking her about the Human Rights Documentation Solution project. She argued that with respect to technology, the report found that there was not one need; rather a whole host of different challenges that human rights documenters face. The report contributes to methodologies, the interoperability of combining different tools, and other wide-ranging needs. In the next phase, PILPG will co-design a tool to assist with information analysis and management. 

Dr. Gregory Noone then steered the discussion back to the Rohingya investigation, asking Adrienne Fricke about methodology. Adrienne Fricke expanded our knowledge of the methodology used during the Rohingya investigation. She explained that it was unique, as they used not only criminal investigative measures, but also an epidemiological sampling-based survey design. 

A total of 1024 people were interviewed in the setting of a refugee camp, which had grown to host 800,000 people. Both the choice of household and the choice of interviewee within the household were randomized. Within the refugee camp, the researchers made sure to interview each quadrant adequately in order to assure that the population is descriptive.

The methodology the report used required a fair amount of training and discipline. All individuals who participated had to be trained. This included the investigators, interpreters, and local guides. Dr. Gregory Noone returned to Adrienne Fricke’s point on the importance of methodology, by arguing that where people are failing these endeavors, is where they walk into a camp and simply interview the first 50 people who speak English. He stresses that such methods gravitate to the same people NGOs and media find. Using only these sources would skew the database

Adrienne Fricke responded to Dr. Gregory Noone’s question about which documentation tools were used. She explained that the essential tool used was a questionnaire developed by the state department. The questionnaire was based on the one used in Darfur, but an improved version of it, amended in light of all lessons learned. The investigators also have had the opportunity to review the document and other foundational documents for good subject knowledge. 

Adrienne Fricke further noted that they have had group discussions on the challenges faced by all participants. This included a focus on the physical and mental wellbeing of the team and discussions on self-care in the field. Over time, this proved to be one of the most important, foundational features of the background work, as conditions were challenging.

Dr. Gregory Noone pointed out the physical difficulties investigators faced. The program required walking long distances in the heat. These challenging conditions explain why the importance of self-care and safety was highlighted repeatedly. He also added that another important aspect was the composition of the smaller teams, which included both females and males, in case one needed to have a same-sex conversation. He then asked Milena Sterio for a further account on methodology. 

Milena Sterio described that one essential point about the methodology has been the importance of controlling the sample. This ensured that the legal analysis was based on accurate information. This included, as previously mentioned, not only talking to the first 10 people the researchers encountered. It also involved excluding minors or people who have not had first-hand accounts of the atrocities. Additionally, the report only included people who fled the region since October 2016. Dr. Gregory Noone then asked Milena a question on which part of the methodology has been most scrutinized. Milena responded and argued that methodology is so crucial since if the methodology is wrong, the entire report is based on flawed information. If the report concludes that there is reasonable ground to believe that genocide or crimes against humanity were committed, and the methodology is flawed, that means the entire report is based on skewed information and its findings are also inadequate. For example, a non-randomized sample, including respondents who do not have first-hand information, is an instance of flawed methodology. 

Dr. Gregory Noone confirmed that appropriate collection and coding of the information is essential to its analysis. He highlighted that in the process of coding, consistency has been key. As there was a big pool of information, researchers needed to make sure that they code the same way so the results were comparable. This required continued training. 

Dr. Gregory Noone then referred to another interesting issue, asking Margaret deGuzman to describe some of the pitfalls she sees in human rights documentation. In her response, she focused on the general level of the type of challenges that can be addressed for any investigation, which in turn can lead to better outcomes. The most important question to ask is what the ultimate purpose of collecting the information is. That can often be challenging, as researchers might not always know going into the investigation what the purpose is. Still, keeping the purpose in mind is crucial in several aspects.

For instance, responding to questions can be traumatizing for victims, especially if they are not given an idea of what is going to happen with the information. Knowing what the process aims for can be a factor in deciding whether or not they want to engage in the interviews. Knowing the aim of the research is also crucial from the point of view of collecting the information. Here, knowing what the data is going to be used for is important in deciding some features of data collection. Collecting evidence in a court of law is different from a truth commission, engaging in a different level of detail.

The overarching question is whether the research is primarily for the population that has suffered and/ or has a more global purpose. This determines what is being taken into account. Research with global purpose might also have different goals than the one with local objectives; these goals might clash with each other. Global society organizations have to reflect on this in order to know how to deal with strategizing the collection of information.

Dr. Gregory Noone asked Bethany to respond with some ideas on different understandings of chain of custody, from the perspective of the newly published report. In response to Dr. Gregory Noone’s question on the different understandings of chain of custody, Bethany provided an interesting insight. She explained how tool developers conceptualized chain of custody, and how lawyers were conceptualizing chain of custody differs greatly. Although there is a common goal of accountability and justice, when it comes down to finer details, there is tension in how you go about doing it. 

She added that we need to be critical of encryption, as encrypted data may always be in the wild. It should not be seen as a fully safe solution. Here, Bethany also highlighted multiple times that we need more opportunities for dialogue between the technological and the legal side. 

A question was then raised from the audience, on how the local guides were selected. In response, it was mentioned that the selection process of local guides was not that important for the investigation. Interpreters were more important. Local guides were not involved in the collection of data themselves. 

Adrienne Fricke highlighted the key role of the interpreters, who served as intermediaries between the respondents and the investigators. Their work was highly demanding from several aspects. The emotional toll of listening to and translating the respondents’ recollection of trauma can be significant. Additionally, interpreters had to have a good working relationship with their investigators, as the teams oftentimes had to do iterative work. In the recounting of stories, vocabulary and verbs matters, the description of colors and patterns can prove to be essential when describing an insignia on a uniform. Interpreters were selected on the basis of their understanding of dialect, keeping in mind the need for both female and male interpreters. Additionally, their understanding of culture and their proximity to it was essential in collecting data of high quality.

In turn, Dr. Gregory Noone confirmed the relevance of common understanding, especially in the case of weaponry and geographical locations. Having an accurate description of the weapon or the location is essential, yet, highly challenging. For instance, if respondents speak of distance in walking hours, investigators might have trouble with translating that into actual distances and location on maps. Lastly, Dr. Gregory Noone explained how traumatic some of the issues they witnessed were. Therefore, a psychologist was included in the team to help them deal with the severity of the things they were witnessing and hearing.

Dr. Gregory Noone asked Milena Sterio how we should navigate these different sources, to hold people accountable. In response to Dr. Gregory Noone, Milena Sterio highlighted that if accountability is not the overall goal, you run into trouble. A problem for PILPG, but in particular for local organizations, is that they may be unaware of relevant evidentiary standards. What can be helpful here, are particular technological tools that are designed to collect evidence that meets evidentiary standards. She pointed towards a knowledge gap between the legal community and civil society. Margaret deGuzman pointed out that we can acknowledge that the field has come a long way and that civil society has become a big part of that. Margaret deGuzman pointed out that she hopes the rise of technological tools can make it easier to meet evidentiary standards. These tools and the work PILPG is doing in this regard is very important to make the process easier, especially where evidentiary standards are so complex.

Bethany then explained that winds of change are pushing for multiple tools being developed to help data collecting. These tools, such as EyeWitness and Proofmode, often automatically add metadata. However, what is missing, is that from a legal perspective we need to look at these tools and evaluate whether or not they meet legal evidentiary standards. From the side of the tool developers, we need to help them by confirming. This will result in more Civil Society members using these tools, as they will be ensured of their validity, and can hereby make more informed decisions. 

To sum up the event, Dr. Gregory Noone asked all speakers to provide us with their last thoughts, or key insights tool developers and people in the field should take away from this conversation. Adrienne Fricke responded and said that what ends up being the most useful from the perspective of documentation, is what seems more boring in the moment. How did you know, which sensory details did you experience, what was the time of day? When listening to the difficult narratives of atrocities, it is easy to become overwhelmed by the actions, Adrienne Fricke added. We need to remember what will matter to the investigator in twenty years, as those are the details that may not feel important in the moment. 

Milena Sterio added on with her final thoughts, highlighting that we need to know what the evidentiary standards are. Tool developers need to work together with lawyers, and civil society should be working together closely with the international community if accountability is the goal. To sum up, Milena Sterio argued that there is no one size fits all solution, and we need to be creative to overcome these challenges. 

As a final thought, Margaret deGuzman pointed out that she would like to see more overarching coordination happening at the international level. Historically it was run out of the United Nations. Recently, the UN has not been able to play as active a role for various reasons including a lack of funding and a lacking level of technological development, but would be great if either UN or other organization could serve as a HUB for this civil society documentation work. This may be something to think about in the future. Margaret ended by pointing out the tension between universality and pluralism.

As a final thought, Bethany Houghton reinforced one of the key insights, which was the importance of starting to think where the end will be, accountability. What really is the end goal of documentation, having that goal in mind is critical at the beginning of any documentation effort. 

Dr. Gregory Noone concluded the event by thanking the panelists and participants, and added that he admires and applauds all people involved in the field. 

Read the reports here:
https://www.publicinternationallawandpolicygroup.org/rohingya-report https://www.publicinternationallawandpolicygroup.org/hrds-phase-i-report-launch

A recording of the event can be found here:
https://www.publicinternationallawandpolicygroup.org/hrdocs-icc-asp

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.