ASP21 Side Event: Gender Diversity and the Rome Statute System

21st SESSION OF THE ASSEMBLY OF STATES PARTIES

6 December 2022

Name of the Event: SE: Gender Diversity and the Rome Statute System

Report by: Sindija Beta, Legal Team, PILPG

Highlights: 

• Gender diversity and gender equality need to be examined and discussed together. 

• The concept of gender is lacking a unified definition, which includes a comprehensive perspective of gender. 

• Gender-inclusive approaches increase the legitimacy of the Rome Statute system. 

Speakers:

• Chair: Evelyn A. Ankumah, Executive Director, Africa Legal Aid (AFLA); Coordinator, Gender Mentoring Training Programme for Judges 

• Judge Piotr Hofmanski, President of the International Criminal Court

• Judge Solomy Balungi Bossa, Appeals Chamber, International Criminal Court; Chairperson, Gender Mentoring Training Programme for Judges

• Judge Fatoumata Dembele Diarra, Former Judge and First Vice President, International Criminal Court

• Jennifer Naouri, Immediate Past President, International Criminal Court Bar Association (ICCBA)

• Alix Vuillemin, Advocacy Director, Women’s Initiatives for Gender Justice

• Julie Heckscher, Head of Mission, Australia Embassy, the Hague

Summary of the Event: 

During the event, the speakers reflected upon the term gender within the framework of the Rome Statute system.  The first speaker was Judge Hofmanski. He discussed gender equality and gender diversity together arguing that both concepts are inseparable from each other.  

Judge Hofmanski emphasized that gender matters in all aspects of society and that the law cannot be an exception.  Gender equality and diversity are crucial for ICC's legitimacy and impact on an international level.  He substantiated his point with five arguments.  First, gender-diverse workflows and an organization that respects people’s differences are more likely to have a healthy workforce where staff feel appreciated and can enjoy a professional life.  Second, women have different experiences and backgrounds from men and can have different perspectives drawing attention to matters that otherwise could be unnoticed.  Third, diversity increases external perceptions of fairness.  Fourth, diversity allows for more sensitivity to victims’ needs. Women make up a considerable proportion of victims under the Court’s jurisdiction, which means the Court needs to be able to address the special needs related to gender violence and discrimination.  Fifth, it is critical that the ICC shows adherence to values of gender equality. 

Judge Hofmanski further noted that the Rome Statute system cannot achieve equality by treating gender issues as women's only problem.  Individuals need to not only abide by the correct principles but also need to actively promote them within our spheres of influence.  He noted that to move forward, we must transform statements into policies and actions referring to the ICC-adopted strategy for gender equality and workplace culture, which will be launched on Thursday at an ASP side event.  Strategy is an ambitious document with timelines and commitments for implementing gender parity in the Rome Statute system. 

Towards the end of his speech, Judge Hofmanski highlighted that gender parity cannot be taken for granted and that gender diversity is a source of strength and richness for the International Criminal Court. 

Then, Judge Solomy Bossa spoke about international criminal laws through a gender lens.  Recalling that gender is an important part of international justice as demonstrated by articles 7(3) and 21, the inclusion of a gender definition is a recognition that gender plays an important role in shaping societal behavior, Judge Solomy Bossa argued.  Judges must be attentive to power relations and the different experiences of women and men and LGBTIQ+ persons.  Discrimination and persecution go hand in hand and it is the duty of judges to establish the truth to eradicate both violations of international rules.  Judge Solomy Bossa further noted that when gender is interpreted in the context of society, the reasons for targeting certain victims become clear.  She pointed out that gender must not lead to stigmatization or discrimination and that we need to get rid of masculine bias, which affects women negatively.  Judge Solomy Bossa emphasized that judges must erode gendered roles, which inflict gender discrimination and international justice must recognize the value of all genders and minorities. 

Further, Ms. Vuillemin spoke about the applicability of gender-related provisions of the Rome Statute to gender diversity.  She discussed how gender is often used as a euphemism for women, a word which historically was used to raise awareness about the lack of women's inclusion and the socially constructed differences between women and men.  The women's movement part of the Women’s Caucus for the Rome Statute system aimed at rebuffing the societal differences that led to a disparity in salaries and reporting on sexual abuse.  Nonetheless, much has changed since the early 1990s.  The ICC is now one of the many international and regional organizations that advocate for the inclusion of women.  Ms. Vuillemin noted that gender perspective is key to accomplishing true gender equality and that this must include all genders, not just male and female.  Individuals of any gender can be victims of sexual violence, including women, non-binaries, transgender, and other genders.  Furthermore, Ms. Vuillemin referred to how men that have suffered from sexual violence are often perceived as feminine, however, as emphasized by Ms. Vuillemin, equaling feminity with sexual violence is demeaning to women. 

She then turned to the lack of a single prevailing definition and understanding of what is gender.  Ms. Vuillemin mentioned the different policies and definitions that are attributed to gender by policy documents and organizations, such as the ICC gender mainstreaming policy, gender persecution policy, and the IIIM policy on gender.  She mentioned that there is a lot of work done in this field also by young researchers.  

Two other panelists provided speeches on the topic.  Judge Fatoumata Dembele Diarra spoke on interpreting crimes to ensure the protection of all gender identities and sexual orientations and Ms. Naouri discussed the principle of complementarity and gender diversity.

Lastly, Ms. Heckscher provided concluding remarks on the protection of gender diversity.  She spoke about how rendering justice through a gender lens plays an important part in international justice highlighting that victims need to be supported to ensure the crimes are prosecuted.  Ms. Heckscher referred to the fact that our practices need to be victim sensitive not only within the ICC but also in national jurisdictions. She said that there are many tools available to us and gender strategies for us to understand this field but most importantly we need to learn, listen, understand, and avoid our internal biases. 

During the question and answer component, a representative of the Office of the Prosecutor made comments about the recognition of the fact that we talk about sexual and gender-based crimes and violence, and sometimes they overlap.  She noted that we are evolving towards an explicit recognition of non-sexual forms of gender violence.  We have charged gender-based persecution in three cases and two out of the three involved non-sexual violence committed against adult-aged males.  Gender persecution needs an understanding of the binary perspective and also other forms of sexual orientation and identity and how they can give rise to gender discrimination.  The representative emphasized that the rights, needs, and dignity of the victims need attention, protection, and respect.  Nonetheless, each individual needs to be treated as unique and the approach must be tailored. 

Other discussions during the question and answer component included topics related to understanding gender from the perspective of the victims, as well as the perpetrators, and projects being led in this area. 

Questions and interventions further focused on the case of Darfur from the gender perspective, as well as overconcentration to formal approaches to addressing gender problems, such as legislative reforms at national levels, which miss the need for more exponential change.  One of the participants pointed out that action needs to be much more on the ground referring to the importance of activism.

ASP21 Side Event: Realising Reparative Justice for Victims of International Crime: impact, results, reflections, and what States Parties can do (more)

21st SESSION OF THE ASSEMBLY OF STATES PARTIES

5 December 2022

Name of the Event: Realising Reparative Justice for Victims of International Crime: impact, results, reflections, and what States Parties can do (more) (co-hosted by Finland, Sweden, and the Trust Fund for Victims)

Report by: Henry Smith and Paul Weber, Research Associates, PILPG-NL

Highlights: 

• The event highlighted the important role of reparations in achieving justice. 

• The work of the Trust Fund for Victims improves the perception of victims that justice is in fact delivered, actively improving the situation they find themselves in. 

• Panelists repeatedly pointed to the need to involve the perspective of victims in designing such measures and the need for equipping the Trust Fund for Victims with sufficient means to fulfill its role.

• Contributions showed widespread sensibility vis-à-vis the special needs of particularly vulnerable groups (children and victims of SGBV) and that the approach to restorative justice taken by the Court and the TFV tries to incorporate age, gender, socio-economic, cultural, and historic sensitive elements.

Speakers: 

• Chair: Franziska Eckelmans, Acting Executive Director of the TFV

• Ibrahim Sorie Yillah, Vice-Chair and Reparations Focal Point of the Board of Directors of the TFV

• Piotr Hofmański, President of the International Criminal Court

• Anu Saarela, Ambassador of Finland to Israel

• Beth van Schaack, United States Ambassador at Large for Global Criminal Justice

• Andres Parmas, Member of Board of Directors (2nd reparations focal point) 

• Paolina Massidda, Principle Counsel at the Office of Public Counsel for Victims

Summary of the Event: 

Mr. Ibrahim Sorie Yillah, Vice-Chair and Reparations Focal Point of the Board of Directors of the Trust Fund for Victims (TFV) opened the ASP side event by highlighting the essential role of the TFV in providing effective reparations for victims of international crimes. The TFV is funded by voluntary donations from public donors, such as party and non-party states to the Rome Statute, as well as private donors, and it provides resources for reparations beyond the assets of the prosecuted or convicted person. No convicted persons have yet contributed to a single reparation payment until now, which highlights the importance of voluntary donations. Mr. Yilliah highlighted the need for more financial but also moral support from both States Parties and non-states parties.

The President of the International Criminal Court (ICC), Mr. Piotr Hofmanski, presented on the judicial part of reparative justice. He noted that the ICC’s role in reparative justice includes enabling the involvement of victims with the procedures of the Court, ordering reparations on the basis of the particularities of the crimes, and providing a wider comprehensive system of reparative justice through which states can contribute to reparations. Mr. Hofmanski stated that victim participation in proceedings is essential to avoid further victimization and harm, giving special regard to victims of sexual and gender based violence and other vulnerable victims, as well as acknowledging cultural and language particularities. The Rome Statute allows victims to participate in the early stages of proceedings, before the pre-trial chambers. The President highlighted the ongoing reparation proceedings in the Ntaganda and the Ongwen cases, and that despite the slow progress, the TFV has already implemented assistance mandate programs in, for instance, the Central African Republic, providing victims with health services, psychological rehabilitation, and economic support. 

The Finnish Deputy Ambassador for Tel Aviv, Annu Saarela, offered reflections from the perspective of a donor state. She noted the key role of reparations in international justice, upholding the right of victims to be supported and their right to live dignified lives. The Deputy Ambassador held that without reparative justice, international criminal justice would be reduced to empty judgements. The work of the ICC relies on the TFV and its funding to deliver justice. She strengthened Finland’s stance as a longstanding supporter of the TFV, and reaffirmed its continued belief that the assistance mandate programs are important even as trials are still ongoing. Ms. Saarela reinforced Finland’s continued support to the TFV in awarding reparations to former child soldiers in the Lubanga case, stating that she witnessed in person how much the assistance programs actually benefit the victims. She concluded by holding that the TFV cannot be the only source and provider of assistance to victims, but that the essential expertise it has gathered through the years can be used by other supporters. 

Beth van Schaack, US Ambassador-at-Large for Global Criminal Justice, highlighted the importance of involving victims and survivors in the design and administration of reparative justice. She presented the alienation of victims with the legal systems, the risk of retraumatization, and the lack of felt justice as the main challenges to achieving reparative justice. Reporting from her own experience, she shared that in one case she witnessed, the victims expressed joy at the successful administration of justice in the criminal case. However, dejected they remarked that ‘you can’t eat the verdict’, with regard to the poverty to which they were due to return. In this vein, the ambassador underlined the importance of giving victims a platform, to empower them, and aid them in their recovery, including ensuring their economic security. In referring back to the domestic experience of the United States, Ambassador van Schaack reflected that any effective reparation requires responding to the experience of the victims and to avoid the reproduction of power relations that were part of the original violations suffered. To her, the discussion on reparations emphasizes that victims and survivors are also right-holders and underlines the important role of reparations in restorative justice by helping communities to move on and healing the social tissue surrounding victims. She recalled that the Rome Statute promises ‘tangible remedies’. According to Ambassador van Schaack, the TFV, by awarding reparations, plays a crucial role in keeping this promise. To her, the case of Uganda and the crimes committed by the Lord’s Resistance Army (LRA) showed what stamina reparative justice must have. There, even years after the LRA had left the area, the detrimental effects of the crimes committed left local communities in need. She finished her contribution announcing that US citizens would soon be able to make tax-deductible donations to the TFV, which she hoped would add to existing efforts to furnish the TFV with adequate funds. 

Andres Parmas, member of the Board of Directors of the TFV, took the floor once more highlighting the crucial role the TFV plays in the Court’s efforts in administering justice. He called the TFVs work ‘revolutionary’, as it allows to address the harms suffered in a meaningful way. Without reparations the Court’s promise of justice would be an empty one.

Paolina Massidda, Principle Counsel at the Office of Public Counsel for Victims, as the representative of victims in pending cases, showcased the victims’ perspective through a video of a former child soldier from the Democratic Republic of Congo, reporting on his experience with the TFV. The former child soldier, who remained anonymous, recounted how he was first approached about the availability of reparations in 2015, eventually being integrated into the reparations program in 2021. As a result, he was able to feed his children and send them to school, himself receiving training that made it possible for him to be employed as a cook in a local hotel. Nevertheless, despite his very positive report, he pointed out that few of his fellow ex-child soldiers received the same support. In the backdrop of this video contribution, Ms. Massidda pointed out that the term ‘to repair’ is not representative of the full effect of reparative justice. In her view, the TFV’s reparation efforts allow victims to continue their lives and can help them ‘turn the page’, having a tremendous impact on their lives. However, in order for these effects to be realized, she emphasized that interventions have to be sensitive to the individual situation of each victim in terms of their age, gender, societal, and community background among other individual factors. Given the often slow pace of justice, also the fact that victims’ situations might substantially change over time needs to be taken into account. In this sense, Ms. Massidda requested that the Court face the complexity of reparations with flexibility. 

Two researchers from the University of Edinburgh followed Ms. Massidda and presented preliminary results of a review study on a reparation program implemented pursuant to the 2017 reparations order in the Katanga case. The order recognized 297 victims and provided for education and housing assistance, income-generating activities, and psychosocial support. Though still preliminary, the results showed that victims largely felt they had been heard throughout the reparation process and felt that reparation had been achieved. 

However, the researchers’ results also suggested the important role of contextual factors. One participant in a focus group of the study reported that “there will be no full reparation until there is peace”. While reparations are one key element of restorative justice, they may not be able to offset the continued suffering of victims who continue to live in violent environments. Furthermore, victims often live close to their offenders or those associated with them and reportedly regularly have the sentiment that not all perpetrators were prosecuted, according to the researchers. While their final report is yet to be published, the initial results presented thus suggested faint optimism while underlining the interconnectedness of justice, reparations, and peace.

The event ended skipping the discussion round for a lack of time with closing remarks by the chair Ms. Eckelmans. Summarizing the debate, she pointed to the need to manage victims’ expectations throughout all stages of proceedings in light of the many challenges. While the global justice community has had a small impact on the creation of peace, Ms. Eckelmans called for continued joint messaging that impunity will not be tolerated. She finished her concluding remarks with a call for greater inclusion of victims in the processes at the Court. In her view, the event showed the many positive effects that victims becoming agents of reparation themselves can have.

The Truth Commission for Ayotzinapa

By: Ana Luz Manzano Ortiz, PILPG-NL Junior Research Associate

Abel, Aberlardo, Adán, Alexander, Antonio, Benjamín, Bernardo, Carlos Iván, Carlos Lorenzo, César, Christian Alfonso, Christian Tomás, Cutberto, Dorian, Emiliano, Everardo, Felipe, Giovanni, Israel Caballero, Israel Jacinto, Jesús, Jhosivani, Jonás, Jorge Álvarez, Jorge Aníbal, Jorge Antonio, Jorge Luis, José Ángel Campos, José Ángel Navarrete, José Eduardo, José Luis, Julio César, Leonel, Luis Ángel Abarca, Luis Ángel Francisco, Madgaleno, Marcial, Marco, Martín, Mauricio, Miguel Ángel Hernández, Miguel Ángel Mendoza and Saúl were the names of the 43 students of the Escuela Normal de Ayotzinapa (“Rural Teacher School of Ayotzinapa”) who disappeared on the night of the October 26, 2014 in Iguala, Guerrero, Mexico. 

More than eight years later, the investigation keeps developing due to the efforts of the students’ families who have brought numerous national and international actors into the scene. As a result of their efforts, Mexican President López Obrador created a truth commission in December 2018 to support the investigation of the Ayotzinapa case, the first of its kind in Mexico. The present blog will analyze the role of this newly created truth commission, based on the newest report of the Interdisciplinary Group of Independent Experts (GIEI) appointed by the Inter-American Commission of Human Rights.

Truth Commissions in Transitional Justice

Truth is one of the key elements of transitional justice, which establishes that individuals and societies have the right to know what has happened during a conflict. Truth-seeking initiatives investigate past human rights abuses to determine what happened, why it happened, and to what effect in order to prevent future abuses. For this reason, all around the world, truth commissions have become an essential part of transitional justice. Truth-seeking initiatives can take many forms, including freedom of information legislation, investigations into the missing, and non-judicial truth commissions.

Truth commissions have a long history in Latin America, with important examples from Argentina, Chile, Colombia, Guatemala, El Salvador, and Peru. National governments  have created truth commissions within processes of peace agreements and transitional procedures with the task of investigating violations of human rights and international humanitarian law by military dictatorships or authoritarian regimes, or during internal armed conflicts. 

Mexico’s long history of forced disappearances by security forces began with  the Guerra Sucia (the “Dirty War”) of the 1980’s, and continues with the ongoing “War against drugs” that began in 2006. However the current President of Mexico has established the first truth commission to investigate one specific event: the case of the 43 students of Ayotzinapa. This could potentially be the beginning of a journey for seeking the truth in Mexico.

The investigation and the order to create a truth commission

Between the night of October 26 and the morning of October 27, 2014, a series of violent events took place in Iguala, Guerrero, resulting in the disappearance of 43 students. The students from a rural teacher school, commonly called normalistas, were preparing to bring education to the rural areas of Mexico. The normalistas of Ayotzinapa were traveling in buses to Mexico City, where they would take part in the commemoration of the massacre of the students of Tlatelolco in 1968. 

The Federal Police stopped the normalistas on a highway in Iguala, Guerrero, and shortly after, the police opened fire against them. The reason why the encounter turned violent is still unclear, but a strong hypothesis by the GIEI is that a drug cartel called Guerreros Unidos had used some of the buses to transport narcotics. Police executed six people, among them three normalistas and three other people present at the scene, and injured more than 40 during the attack. In addition, the whereabouts of the 43 missing normalistas is still unknown.

The disappearance of the normalistas sparked public outrage, and the investigation gained attention from media all over the world. The General Prosecutor of Mexico released the infamous “historical truth,” which were the results of his investigation of the event. According to this version, Guerreros Unidos executed the normalistas and burned their bodies in a municipal dump. However, this version was quickly proven to be a fabrication by the investigation of the GIEI.

The GIEI arrived in Mexico after the relatives of the normalistas presented a request of interim measures to the Inter-American Commission of Human Rights. The relatives of the normalistas have used several other legal mechanisms, including a constitutional claim against the “historical truth,” the investigation of the Federal Prosecutor. In a historical verdict, the Tribunal Federal Colegiado (Federal Collegiate Tribunal) in charge of this claim ordered that the Mexican President, as one of the authorities responsible for the flawed investigation of the General Prosecutor, create a Truth Commission to establish the true account of the events.

The role of the truth commission in the new report of the GIEI

A Presidential Decree of December 4, 2018 created the Comisión para la Verdad del Caso Ayotzinapa (Truth Commission for the Truth of the Ayotzinapa Case). This Commission has the role of facilitating dialogue between the authorities involved in the investigation, creating a mechanism of economic incentives for the collaboration of individuals who may have information on the events,  strengthening international technical cooperation with organizations like the GIEI, and strengthening the reparation assistance to the victims of the case.

Representatives of the victims have challenged the creation of the Truth Commission, as they claim that it has no powers to take direct part in the investigations, but only to help the parties involved, namely the GIEI, the victims, and the prosecutors. Despite this, in the latest report by the GIEI, the group recognized that the Commision played an important role in advancing the investigation, as it helped the GIEI access information it did not have in previous years. One of its major findings, according to the report of GIEI, were around 60 videos that confirm that the initial detainees who were part of the “historical truth” investigation, had been tortured. For this, the GIEI has asked the Mexican state to strengthen the Commission, as a fundamental part of the fight for truth and justice for the normalistas.

In conclusion, the role of the Commission has proven to be key in the development of the investigation. With the finding of the evidence of torture during the investigation, as well as the funding and identification of human remains of two of the normalistas, the GIEI has now established that most of the “historical truth” never took place. The search for truth by the Commission is not only fundamental for the victims of Ayotzinapa, but for all of the Mexican society who were led by false information in the past. In a country where impunity has hurt its population for so long, to find the truth is only necessary.

Riding the wave of the recognition of the rights of Nature in Europe: The case of "El Mar Menor"

By: Guillermo Ferrer Hernáez, Junior Research Associate, PILPG-NL

Human activity is altering the planet's natural ecosystems, which could lead to their disappearance and that of the living beings that inhabit them. Efforts to avoid this disastrous situation are leading to the implementation of novel global actions for the defense of ecosystems, such as the recognition of the rights of natural elements and ecosystems. 

On April 5, 2022, the Spanish Congress of Deputies approved the processing of a law promoted by the Iniciativa Legislativa Popular (ILP) Mar Menor with the support of a petition with 640,000 signatures collected throughout the state, granting legal personality to Mar Menor, a saltwater lagoon. If the plenary of the Spanish Congress of Deputies approves this bill in the following months, it would be the first legal recognition of the personhood of an ecosystem in Europe. This blog will analyze the case of Mar Menor as a possible first recognition of a natural entity as a legal person in Europe and will assess the possible impact of this recognition.

The state of the Mar Menor

The Mar Menor is the largest saltwater lagoon in Europe, located on the coast of the Region of Murcia, Spain. This natural treasure is seriously threatened by an excess of nutrients in its waters, a process known as eutrophication. Fertilized water from the surrounding crops and desalination plants, loaded with nitrates, reaches the Mar Menor, where it feeds and nourishes phytoplankton. When this type of algae in the Mar Menor proliferates, it blocks the light to the plants that grow on the seabed, preventing photosynthesis and causing them to die. In turn, the death of these plants means a lack of oxygen in the waters of this sea affecting the fauna that inhabits the Mar Menor, causing ecological disasters like the one in October 2019 in which tons of dead fish were removed.

This ecological crisis highlights the current legal protection system's failure, which has not prevented the continued discharge of polluted waters. For this reason, Spanish citizens have decided to mobilize to protect and preserve this natural ecosystem. 

The bill recognizes the legal entity of this ecosystem

Faced with the inaction of the Spanish authorities, a group of lawyers, scientists, and activists, with the support of the Legal Clinic of the University of Murcia, started a movement under the name of ILP Mar Menor to protect the lagoon by drafting a bill.  The association behind the bill has highlighted the need to preserve the lagoon's ecological value and guarantee intergenerational solidarity in line with international conventions such as the Paris Agreement.

This new bill includes the possibility of granting legal personality to the Mar Menor lagoon ecosystem, which would mean that it would be considered a subject of law.  This new juridical status would grant the lagoon with subjective rights, limiting its private use and enabling any citizen to enforce these rights in court.  In addition, the Mar Menor would thus become the only natural entity in Europe that functions as a subject of law. This could be a precedent for the recognition of other endangered natural entities’ rights within Spain and Europe. Nevertheless, authorities would still need to recognize the legal personality of these endangered natural entities individually or collectively in their national systems. In the Spanish case, the Spanish Parliament would still need to recognize the possibility of extending the legal personality to other endangered entities in national law.

According to the bill, the legal representation and guardianship of the lagoon would be exercised through an authority that would include representatives of public administrations; members of universities, research, and scientific centers; and residents of local municipalities. Public administrations have an obligation to conserve, preserve, and restore this ecosystem. If the administration does not fulfill this duty, this new legal authority could demand criminal and administrative action before Spanish tribunals. In addition, any citizen would be able to demand reparations from those responsible for the damages produced in the lagoon before the Spanish courts. In this regard, this blog will take the example of the Latin American states to see how natural ecosystems can be protected through citizen initiatives.

Examples from Latin American states

The Constitution of the Republic of Ecuador, which came into force in October 2008, revolutionized the concept of Nature as a subject of law in the Latin American region. The constitutional recognition of the legal personality of Nature, also known as Pachamama, includes the possibility for any person, community, or people to demand from the public authority the fulfillment of the rights of Nature.

This same idea has inspired many Latin American states, such as Chile, which have recently included the same provisions in their constitutions. These initiatives go further than other attempts to protect the rights of Nature, such as the Escazú Agreement, and set an example for other states around the world, such as Spain, to follow.

Latin American NGOs and citizens have made use of the recognition of the subjectivity of these ecosystems and their consequent rights to sue the authorities for not preserving the wellbeing of these ecosystems. However, in many cases, such as in Ecuador, the recognition of the Rights of Nature has not been able to stop the abusive exploitation of these ecosystems with the value of subjects of rights. The recognition of the subjectivity of these ecosystems establishes a starting point for their protection, but without effective enforcement mechanisms, the ultimate objective cannot be achieved.

Conclusion 

Time is running against the sustainability and welfare of the Mar Menor. If the Spanish Congress approves the bill presented by ILP, Spain will build a new path toward protecting the rights of Nature in Europe, following the example of other Latin American states. This is the first step toward protecting these ecosystems.

International criminal justice for irregular migrants? The case of Libya regarding atrocities committed at detention camps

By: Ana Luz Manzano Ortiz, Junior Research Associate, PILPG-NL

Abuses committed or tolerated by authorities against foreigners with an unauthorized stay, also referred to as “irregular migrants,” are common. Cases like these have mostly been litigated by civil organizations under human rights law. However, there are situations where international criminal law can also serve as a tool to seek justice. An example of this is Libya, where NGOs have denounced militias’ practices of targeting irregular migrants through torture, kidnappings, forced recruitment, and killings. 

In order to seek accountability for this situation, NGOs have asked the International Criminal Court (ICC) to investigate the situation in Libya. On January 17, 2022, a group of NGOs, composed of Adala for All, StraLi, and UpRights, presented a communication under Article 15 of the Rome Statute to the ICC, asking the Office of the Prosecutor to investigate potential crimes in Libya. This contribution examines the turn from international human rights law (IHRL) to international criminal law (ICL) in light of this particular situation in Libya.

The situation in Libya 

Libya has become one of the predominantly cited examples of abuse committed with impunity as a result of pushback policies, aimed at deterring migrants from reaching Europe through unauthorized sea routes. Due to its geographical location, Libya is a transit state through which each year an estimated 180,000 people from multiple states, mainly Eritrea, Somalia, Ethiopia, Sudan, Syria, Palestine, and Iraq, travel on their way to Europe. In order to keep these individuals from reaching the European Union (EU), the EU Agency known as “Frontex,” as well as the Italian and the Maltese governments, provide funds, training, and boats to the Libyan Coast Guard. However, the armed conflict that has taken place in Libya for a decade has complicated and worsened the situation, as militias have become involved in these border control operations.

According to the latest report of the UN Support Mission in Libya, “more than 12,000 detainees are held in 27 prisons and places of detention across Libya.” However, thousands of additional detainees do not appear in official statistics and are held illegally and often in inhumane conditions in facilities controlled by armed groups, or “secret” facilities, unable to challenge the legal basis for their continued detention. It has been well-documented that serious abuses occur in these detention centers, such as ill-treatment, torture, sexual violence, forced labor, forced disappearance, and murder, all in the context of indefinite detention in inhuman conditions. According to Alessandro Pizzuti, co-founder of UpRights, in Libya the parties to the conflict target migrants because they perceive them as a crucial resource for carrying out their political and military objectives. 

Human rights violations or international crimes?

IHRL and ICL are part of public international law, and their scope covers the relationship between individuals and the state. Both of them deal with abuses committed by state officials, either through their acquiescence, their omission to comply with their obligations or through their direct actions. Their enforcement is primarily the responsibility of national authorities. ICL’s scope is, in fact, broader and also imposes obligations on non-state actors. The application of IHRL and ICL is not mutually exclusive; on the contrary, these specialized branches of law converge and are interdependent on each other. However, IHRL relates to the responsibility of the state, while ICL is concerned with individual criminal responsibility. Therefore, there are different mechanisms through which they can be enforced whenever domestic remedies have failed to be effective.

Under IHRL, several international judicial bodies have been created around the world: the European Court of Human Rights, the African Court of Human Rights, and the Inter-American Court of Human Rights are the main examples of these. The United Nations has also developed ten quasi-judicial treaty bodies that observe the enforcement of their corresponding human rights treaties, such as the United Nations Committee Against Torture, the Human Rights Committee, and the Committee on the Elimination of Discrimination against Women, among others. These are the main regional and international mechanisms through which individuals can seek redress when they believe there has been a violation of their human rights.

Under ICL, the main judicial body is the International Criminal Court (ICC). The ICC is an independent tribunal governed by the Rome Statute with jurisdiction over war crimes (WC), crimes against humanity (CAH), and genocide committed or tolerated by state and non-state actors from states party to the Rome Statute, or committed on the territory of a state party. Other ad hoc courts have previously been created to investigate specific situations in a state, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.

Trying to access redress under ICL has important consequences, both practical and symbolic. On the practical side, it can be much more difficult to access justice at the ICC, in contrast to other international human rights judicial bodies. In the history of the ICC, the Office of the Prosecutor has opened twelve official investigations and is currently conducting an additional nine preliminary examinations, and only 46 individuals have been indicted. On the other hand, in 2021 alone the European Court of Human Rights released 1,105 judgments. Additionally, the heightened burden of proof in ICL means that cases tend to focus on specific incidents, perpetrators, and victims, whereas IHRL cases can be much broader in scope. Even if a case is brought, victims under ICL may be excluded just because there is less evidence concerning the specific incident in which they were victimized, which may not be the case in a court of human rights. However, on the symbolic side, justice is reached in different terms under IHRL and ICL. Whereas human rights judicial bodies reach judgments that condemn states in abstract terms, ICL has the potential to point to the individual responsibilities of the persons who commit the crimes. 

Until now, the abuses committed in Libya against irregular migrants have been addressed under IHRL. In the case of Hirsi Jamaa and Others v. Italy of the European Court of Human Rights, the situation in detention centers was recognized to amount to ill-treatment under Article 3 of the ECHR, enough to condemn Italy for returning people at sea to Libya. This has been a positive development for migrant and refugee rights in Europe; however, under the framework of IHRL, only the state of Italy was condemned for the push-back operation, and not the individual officers who participated in the operation nor the authorities in charge of the detention centers where abuses were being committed. The victims of this case did not get to see the people who mistreated them on trial, nor do they have any assurance that they faced any consequence for their actions.

The group of NGOs that presented the communication to the ICC argue that the case of the situation in the Libyan detention centers amounts not only to a mass violation of human rights but also to crimes against humanity and war crimes. Under this logic, the situation now also falls under ICL. If the situation in Libya is to be investigated by the ICC, individual responsibilities could arise for the authorities implicated in the operations of migrant detention centers. 

Conclusion

The consequences of shifting from international human rights law to international criminal law to seek accountability for the ongoing situation in Libyan detention centers could be many, but one stands out: having the ICC criminally investigate the people responsible for the crimes being committed at the gates of Europe.