Launching the Spring Issue of the Transitional Justice Institute Research Paper Series on SSRN

Catherine O’Rourke and Elise Ketelaars

We are pleased to announce the publication of a new issue of the Ulster University Transitional Justice Institute Research Paper Series on the Social Sciences Research Network. This exciting new issue engages both with highly-topical contemporary questions, as well as long-standing challenges in international law, peace, human rights and gender equality. First off, Thomas Obel Hansen considers the Policy Paper of the ICC on preliminary examinations and its potential to advance ‘positive complementarity’ between the operation of the court and the domestic pursuit of justice for conflict victims. At a time of apparent crisis for the court, scholarship such as Hansen’s that addresses this critical relationship between its operation and broader domestic impacts is critical. Aisling Swaine, the leading global expert in National Action Plans (NAPs) for Women, Peace and Security, examines relevant practice to date in the Asia-Pacific region. She demonstrates an exciting new methodology for gender-responsive planning, which has relevance well beyond the specifics of Asia Pacific, namely the ‘Gender Needs Analysis Tool’. Likewise, the findings, conclusions and recommendations offer immediate policy relevance to the current 63 UN member states with NAPs on Women, Peace and Security, as well as those currently developing or reviewing NAPs.

Contributions by Catherine O’Rourke and the joint article by Anne Smith, Monica McWilliams and Priyamvada Yarnell both address the question of international human rights obligations and their current and potential impact on Northern Ireland. Catherine O’Rourke, in research from the DFID-funded Political Settlements Research Programme, considers the recent report of the UN Special Rapporteur on Truth, Justice, Reparations and Guarantees of Non-recurrence on his country visit to Northern Ireland. She identifies the potential for the report to positively re-shape both the diagnostic (defining the problem) and prognostic (identifying the solutions) framing of the vexed issue of how to deliver accountability for past conflict killings and harms in Northern Ireland. Finally, Anne Smith, Monica McWilliams and Priyamvada Yarnell engage with the highly topical challenges of protecting human rights in Northern Ireland as the UK advances its withdrawal from the European Union. In a timely and important contribution, the authors consider how the long-promised Bill of Rights for Northern Ireland might finally be advanced as part of broader efforts to ensure continued human rights protections in the midst of Brexit.

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Corporate accountability: Dutch court convicts former “Timber baron” of war crimes in Liberia

On 21 April 2017, the Dutch Court of Appeal in ‘s-Hertogenbosch issued a decision holding Mr Guus Kouwenhoven, a Dutch national, responsible as an accessory to war crimes committed in Liberia and parts of Guinea between August 2000 and December 2002. The decision is one of few to address corporate accountability for war crimes. As the president of the Oriental Timber Company (OTC) and director of the Royal Timber Company (RTC), Mr Kouwenhoven supplied weapons, and material, personnel and other resources to former Liberian President Charles Taylor and his armed forces, which were used to fuel their fight against a rebel group, the Liberians United for Reconciliation and Democracy (LURD). The court held Mr Kouwenhoven liable not only for directly violating a UN arms embargo in place at the time, but equally as an aider and abettor to war crimes that were committed using the resources he provided, including rape, pillage, murder, and inhumane treatment. Here are a few highlights.

The case against Guus Kouwenhoven

The crimes for which Mr Kouwenhoven stood trial were alleged to have been committed during the second Liberian Civil War between 2000 and 2002, when Former Liberian President Charles Taylor was fighting a brutal war against LURD. The specific charges related to crimes committed in Voinjama and Kolahun in Lofa County in Liberia, as well as in Guéckédou, across the border in Guinea. Although the charges against Mr Kouwenhoven related to his having been “complicit in repeated violations of the laws and customs of war, to wit murder or rape”, the allegations covered a range of different crimes. The court noted that unnamed (co-)perpetrators, members of Charles Taylor’s armed forces, indiscriminately fired at civilians and military targets, burned houses with civilians trapped inside, cut off people’s heads, smashed babies against walls to kill them, forced civilians to undress before shooting them, and raped women and children.

As director and president of two of the largest timber companies in Liberia, Mr Kouwenhoven’s business interests were closely tied to former President Charles Taylor’s political, financial, and personal interests. Mr Kouwenhoven maintained frequent contact with Charles Taylor, who had financial interests in his two companies and frequently received payments and other resources. In exchange, Mr Kouwenhoven gained access to large swathes of territory for the exploitation of timber and was given de facto control over the Buchanan port.

The court noted that Mr Kouwenhoven used his companies to import, store, and distribute weapons in Liberia, in clear violation of the UN arms embargo. He provided trucks for the transportation of armed forces, weapons and ammunition, and facilitated the import of weapons and ammunition. He also actively encouraged his employees to support Charles Taylor, such as by unloading weapons from his ships in Buchanan and transporting them to various places in Liberia or participating actively in the fighting, and threatened those who refused with dismissal. He also allowed the armed forces access to an RTC camp, effectively used as a meeting place and a mechanism for storage and resupply of weapons to the frontline.

Corporate accountability for international crimes

Importantly, Mr Kouwenhoven is not convicted of directly perpetrating international crimes himself. Rather, the court held that he made an “active and conscious” contribution to the commission of serious violations of international humanitarian law, by the provision of material, personnel, and other resources through his businesses in Liberia. Although he had been charged in the alternative as (co-)perpetrator and as an accessory to the crime, he was ultimately convicted as an aider or abettor.

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Write On! Papers sought for AsianSIL Interest Group on International Law in Domestic Courts

AsianSIL IG ILDC logoAs noted previously, the Asian Society of International Law’s Interest Group on International Law in Domestic Courts is seeking paper proposals for a workshop to be held on 24 August 2017 at Yonsei University, Seoul, South Korea. Full details are here (pdf).

Interested researchers and practitioners should send a 500-word abstract and a short bio to the convenors of the IG-ILDC: m.kanetake@uu.nl (Machiko Kanetake) and tjw71@case.edu (Tim Webster). The deadline is 23 April 2017.

ICC Reparations post-Katanga – Part 2

As discussed in a previous post, in March 2017 the International Criminal Court (ICC) issued its decision on reparations in the Prosecutor v. Germain Katanga case, the first to elaborate on and award both individual and collective damages.

In itself, the Katanga reparations decision represents an important step for the victims of the Bogoro attack underlying Katanga’s criminal liability. The decision also provides a further framework upon which to predict the ICC’s potential award of reparations in future cases. In particular, the decision plays a key role in potential awards in the Prosecutor v. Ahmad Al Faqi Al Mahdi case, currently in the reparations phase, in which the crimes committed were cultural heritage crimes. The goal of this post is to posit the impact of applying the Katanga precedent to a potential reparations decision in Al Mahdi.

Al Mahdi Case Background

At issue in Al Mahdi was the defendant’s involvement in the destruction of 10 cultural and religious heritage sites in Timbuktu, Mali. The majority of these sites were essential to the religious beliefs and cultural identity of the Timbuktu community, the region and the world, as reflected in their UNESCO World Cultural Heritage site status (for more complete details see a previous post).

Al Mahdi pled guilty rather than proceeding to a full trial. Although the Chamber ultimately accepted Al Mahdi’s plea, it required the production of evidence in order to make a determination as to his involvement in the crimes and for use in crafting a criminal sentence. In the process of establishing the case, 9 victims were approved by the ICC––3 individuals and 6 representatives of victim organizations. Further, the Chamber heard the testimony of the designated counsel for the victims, Maitre Kassongo. Kassongo’s testimony included descriptions of how the acts of destruction impacted the local population.

Ultimately, the Chamber accepted Al Mahdi’s plea, determining him to be guilty under article 8(2)(e)(iv) of the Rome Statue in terms of harms.

Potential Application of Katanga to Al Mahdi

Material damages

Several forms of damage were discussed in the Katanga case. Initially, there were claims for material damages – largely stemming from damage to/destruction of dwellings, commercial property and personal property. In these instances, there was a clearly established nexus between the defendant, the Bogoro attack and the victims’ losses.

Awarding material damages under these criteria may be more difficult in Al Mahdi since the Chamber could not verify the type and nature of material damage suffered by the victims as a result of the heritage site destruction. Indeed, a review of the proceedings before the Chamber indicates that neither it nor Kassongo could establish the type and amount of economic losses suffered by the victims.

Psychological damages

Katanga recognized the potential for individual psychological damages in several instances. The first instance was psychological damages stemming from the loss of a parent (or member of family) as a result of the attack. This necessarily addressed the ability to award indirect damages – according to the Chamber, this could occur when there was sufficient evidence of a nexus between the criminal act, the direct victim and the subsequent victim(s). Although the victims in Al Mahdi have asserted a close spiritual and emotional connection to the saints associated with the heritage sites, it would be difficult to meet the nexus requirement for this form of psychological damage.

A stronger argument for awarding psychological damages in Al Mahdi could be for psychological damages to those present at the attack. In this instance, the Katanga Chamber found that the trauma of being present for the Bogoro attack qualified victims for psychological damages. While the violence in Al Mahdi was directed at the heritage sites rather than individuals, significant evidence was presented to and accepted by the Chamber to demonstrate that the intent behind the destruction was to inflict psychological damage on the local population by destroying its belief systems and community. The acts of destruction took place over several weeks, during which the local population was unable to stop it or to preserve essential elements of its religion. In these circumstances, it could be possible for the ICC to find that individual victims and the collective community of Timbuktu suffered psychological damage.

Additionally, in Katanga, the victims claimed transgenerational harms, however the Chamber found that there was an insufficient nexus between the Borogo attack and the harms that would be transmitted to the children of the victims. During the Al Mahdi proceedings, Kassongo highlighted the extent of damage to current and future generations caused by the destruction of the heritage sites that are intrinsically connected to the identity of their communities. With this in mind, the concept of transgenerational harms as a form of damages might be appropriate in Al Mahdi.

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International Criminal Law in a Retreating World

Delighted to return to Intlawgrrls, and to have recently attended a fascinating program on International Criminal Law in a Retreating World organized by the American Bar Association’s International Criminal Court Project, Center for Human Rights, and Criminal Justice Section.

image (12)The program included a variety of perspectives presented throughout the course of two back-to-back panels. The first panel—US Policy on the ICC and International Criminal Justice—featured Former Legal Adviser to the Department of State John Bellinger, Global Justice Center President Janet Benshoof  and Stephen Lamony, Senior Advocate for Africa with Amnesty International. The second panel featured the current Prosecutor of the International Criminal Court, Fatou Bensouda, and former Ambassador At-Large for War Crimes Issues, Professor David Scheffer.

Much of the conversation in this first session revolved around the anticipated deterioration in the US-ICC relationship after a longstanding policy of constructive engagement that began during George W. Bush’s second term and continued to advance under President Obama.

For Benshoof, the proper way forward for Court proponents in the face of this expected hostility is to advocate zealously for a yet stronger association with the Court, including a push for the present administration to accede to the Rome Statute. Bellinger, however, cautioned against what he described as “waving a red flag,” a reasonable concern in light of the present “onslaught on international law and institutions.”  In Bellinger’s self-described pragmatic view, Court supporters should instead emphasize widely the commonalities of the U.S. and the ICC, including a shared commitment to hold perpetrators of atrocities accountable.

Among other noteworthy issues, Bellinger discussed:

    • How those who don’t remember history are doomed to repeat it: One of the key takeaways from Bellinger’s contributions is that ICC advocates need to educate the current administration about the prior missteps in the US-ICC relationship. Citing to such gaffes as the decision to cut off military aid to foreign governments that refused to sign Article 98 agreements—a move famously described by then-Secretary of State Condoleeza Rice as “sort of the same shooting ourselves in the foot” because it undermined efforts to combat terrorism and drug trafficking—Bellinger repeatedly highlighted the need to avoid “roll back” to this earlier state of hostility and opposition.
    • The “pivot” in the US-ICC relationship after Bush’s first term: For this author, who has long scrutinized the relationship between the US and the ICC, one of the most interesting revelations of the day came in response to a question about what prompted the dramatic shift in the US approach to the Court in Bush’s second term. According to Bellinger, it was the world view of US opposition to the Court that triggered the shift. Apparently, so many world leaders voiced their concern about the US position to former President Bush that he asked for a paper on the value of the Court. The rest, as they say, is history.
    • The ICC Prosecutor’s current investigation of US forces in Afghanistan: Since 2007, the ICC Prosecutor has been conducting a preliminary investigation into Court crimes allegedly committed on the territory of Afghanistan. As a result of this inquiry, the Prosecutor recently declared that there was a reasonable basis to believe that US military forces deployed to the country committed war crimes of torture and related ill treatment. What happens next depends in part upon whether the Prosecutor seeks to go forward with a formal investigation. Not surprisingly, Bellinger noted that if an investigation involving US troops were to materialize, this would put a decisive end to any prospect of US cooperation with the Court.

 

The status of the Afghanistan investigation was again raised in the second panel discussion. Prosecutor Bensouda recognized that many were eager to learn whether she would request authorization from the Pre-Trial Chamber to proceed to a formal investigation into the matter, a requirement for the inquiry to advance under Article 15 of the Rome Statute. She also acknowledged that this widespread interest was the natural result of her November 2016 declaration that her decision on the future of the investigation would be announced “imminently.” As for the delay, Prosecutor Bensouda explained that, since her announcement, there has been “more engagement” with interested states and that this engagement has produced additional information that she is statutorily required to consider before proceeding further.

Presumably, the Prosecutor was referring Article 53, a provision that obliges her to consider whether the interests of justice would not be served by initiating a formal investigation, as well as whether insufficient gravity or the principle of complementarity would render the case inadmissible. Although (unfortunately) she provided no insight as to which of these considerations was implicated by the recent state engagement, complementarity seems the most likely possibility. Under that principle, a case is inadmissible if a state with jurisdiction is conducting its own, genuine investigation into the matter. Accordingly, it might well be that the Prosecutor’s recent announcement actually prompted a state to fulfill its obligation “to exercise its criminal jurisdiction over those responsible for international crimes.” If so, this would be a major win for the Court, which is meant to be an institution of last resort, stepping in only when states have failed to deal appropriately with international crimes.

That said, Bensouda acknowledged that the Court is facing no shortage of problems at the moment. Among them, she described state cooperation as a “huge challenge” and noted the Court’s ongoing difficulties with witness interference. Professor Scheffer similarly noted a series of setbacks for international criminal justice, and argued that part of the problem lies in the unrealistic expectation that international criminal law should change the world when, really, this is the bailiwick of politics. Scheffer also credited contemporary international criminal justice efforts for the fact that “the presumption of impunity is now dead” and argued that the international criminal institutions require patience and continual governmental support.

This author is looking forward to discussing many of the issues raised by the five experts at the International Criminal Court Summer School in Galway, Ireland, where she will be lecturing in June.   The upcoming course, offered by the Irish Centre for Human Rights boasts a distinguished list of speakers, including fellow Intlawgrrls Nadia Bernaz and Noelle Quenivet.

Looking for women experts? Don’t make it a beauty pageant

Final Phase Digital

1946 – Birth of the UN Commission on the Status of Women, photo credit: UN Photo

This post was co-authored by Almut Rochowanski

Earlier this month, the BBC held its BBC Expert Women’s Day, bringing together “female experts who’d like to appear on air as contributors to BBC programmes”. The event gathered a group of 24 professionals, which included lawyers, scientists, political analysts, entrepreneurs, coders, cultural leaders and sex educators, selected from a pool of 450 applicants for a ‘media familiarisation day”. They were given tips on how to sound natural on air and given the opportunity to experience appearing on camera in a BBC news studio.

Seemingly, this is a well-intentioned effort to diversify sources. However, the way the BBC is going about it makes it seem more like a beauty contest.

This is the latest edition of a programme the BBC launched in 2013. At first glance, it might look like an earnest attempt to overcome the notorious “all-male panel” problem, something the BBC should be applauded for having acknowledged and taking steps to address (even if, in 2012, it was the only major UK broadcaster to refuse signing a pledge to get more women on screen). But, on closer inspection, there are a number of deeply problematic aspects to the initiative. In fact, it is a spot-on illustration of why media organizations suffer from the all-male panel problem to begin with.

The BBC Academy’s call for applications asked women experts to send in their CV, a letter explaining their interest in being on air and a two-minute video of themselves talking about their area of expertise. By having women experts compete to be acknowledged for what they are – experts – this “TV expert” competition puts the onus on women to correct and overcome the discrimination that holds them back. Once again, women are expected to jump through extra hoops to prove that they are good enough to do what men routinely get to do with no questions asked. Women need to not only have the talent and put in the work to become experts on topics like Brexit, terrorism or classical music, but must also submit to a screen test and mentoring in order to be recognized as authoritative voices in their field of expertise.

The screen test that forms part of the application is particularly troubling. Somehow, it doesn’t seem likely that the BBC requires screen tests of the male climate scientists, business experts or lawyers they invite on their programs.  And while the instructions for the video do not mention looks, women are judged on their appearance much more than men, and nowhere more so than in the media. Imagine a female expert on development aid or the music industry considering even for a split second whether she should put on lipstick before recording her video, and it immediately becomes clear how this initiative perpetuates gender discrimination and is self-defeating in its stated purpose.

The competition is based on the lazy and ignorant assumption that women are underrepresented as experts in broadcast media because they have not tried hard enough or because they just do not shine as brightly as their male colleagues whom the media somehow manage to find without them having to answer to a casting call. The same argument is routinely employed to rationalize the low numbers of women on corporate boards, among tenured professors or in government. And yet we know that women are underrepresented in roles of power and prestige because they are overlookeddismissedignoredexcluded and discriminated against.

Our critique isn’t directed at the women who took part in this year’s BBC Expert Women’s Day, or the many more who applied and were not invited. Quite the contrary. These women are obviously very good at what they do, and the fact that they’re ready to put in the extra work and face new challenges illustrates why they have become leaders in their fields. Our point is that they shouldn’t have had to go through a competition like this to be recognised for their expertise and to get a chance to contribute to public discourse.

If the BBC concludes that they have too few female experts on the air, they ought to first take a good, hard look at themselves and figure out where they went wrong. Have they sufficiently questioned their own habits and assumptions? Have they probed their organization’s practices for hidden biases and discrimination? Do terrorism experts always look male in the imagination of the editorial staff? Have they given proper research a try?

Because, really, it is not difficult to find women experts out there. We are literally everywhere. We are at universitieshospitals, research centers and think tanks. We publish booksblog post and articles, we are on LinkedIn and social media, we win prizes and fellowships, we are part of professional networks. In addition, numerous databases have been set up to assist researchers who might be at a loss in identifying women experts for their news coverage. There is The Women’s RoomSheSource, Women Also Know Stuff and The OpEd Project, to name but a few. Having women compete to have their voices heard in a space where their opinions should be sought out as often as those of their male counterparts is not a solution. Rather, by failing to acknowledge and reject the systematic inequalities that women face, this casting call for women experts perpetuates the problem it ostensibly tries to solve.

Almut Rochowanski is a co-founder and coordinator of the Chechnya Advocacy Network. Nani Jansen Reventlow is a human rights lawyer with Doughty Street Chambers and a fellow at the Berkman Klein Center for Internet & Society at Harvard University.

This post has been cross-posted on Medium.

Human Trafficking and Slavery Reconsidered

Cover CUP

With this post I would like to discusses some of the arguments developed in my newly published book with Cambridge University Press ‘Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law’ (2017) and the more recent developments in the case law of the European Court of Human Rights (ECtHR) under Article 4 of the (ECHR): the right not to be held in slavery, servitude and forced labour and not to be subjected to human trafficking.

Against the backdrop of the rich judicial output of the ECtHR, the case law under Article 4 ECHR is scarce. To be more precise, the existing judgments in which the Court has dealt with abuses inflicted by non-state actors (i.e. employers) reaching the level of severity of Article 4 are eight:[1] Siliadin v. France, Rantsev v. Cyprus and Russia, C.N. and V. v. France, C.N. v. The United Kingdom, M. and Others v. Italy and Bulgaria (the complaint under Article 4 was found inadmissible in this case), L.E. v. Greece[2], J. and Others v. Austria[3]and Chowdury and Others v. Greece. By way of comparison, the judicial output of other human rights bodies regarding the right not to be held in slavery, servitude and forced labour, has not been much richer. The Human Rights Committee has not issued so far a single communication under Article 8 of the ICCPR concerning circumstances that can be generally described as contemporary forms of slavery and human trafficking.[4] The ECOWAS Community Court of Justice has delivered one judgment Hadijatou Mani Koraou, No. ECW/CCJ/JUD/06/08, 27 October 2008, where it found Niger in violation of the prohibition of slavery as set out in the African Charter on Human and Peoples’ Rights; however the factual circumstances can be rather described as de jure rather than de facto slavery. Finally, it was only on 20 October 2016, when the Inter-American Court of Human Rights issued its first judgment under Article 6 (freedom from slavery) of the American Convention on Human Rights: Case of the Hacienda Brasil Verde Workers v. Brasil.

 Overall, the scarcity of judicial engagement at international law level with slavery, servitude and forced labour can be described as striking. Since the ECtHR has recently started to engage more often with Article 4 of the ECHR due to new individual applications that have been filed, the Strasbourg Court’s case law might be a valuable source to draw from. In my book ‘Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law’ (CUP, 2017), I review these recent developments under the ECHR and offer a comprehensive analysis of the challenges that needs to be addressed in terms of definitional limits and states’ positive obligations so that human rights law can more effectively respond to the factual reality that reveals that many individuals are subjected to severe forms of exploitation.

As to the definitional challenges, one problematic development that I highlight is the central focus on the concept of human trafficking that has been the dominant frame for conceptualizing abuses. While this development has had some positive effects, it has also led to some negative repercussions that need to be acknowledged. In particular, the concept of human trafficking has brought confusion and obscurity as to the nature and gravity of the harm suffered. It has also led to preoccupation with the abusive migration process rather than the actual abusive conditions in European host countries that might amount to slavery, servitude and forced labour.

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