Prosecuting Sexual Violence at the Special Court for Sierra Leone

On 13 December, I organized a side-event at the International Criminal Court Assembly of States Parties titled “Prosecuting Sexual and Gender-Based Violence at the Special Court for Sierra Leone”. The event was co-sponsored by the Permanent Missions of Sierra Leone and Canada, UN Women, the Canadian Partnership for International Justice and Western University (Canada).

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Valerie Oosterveld & Sharanjeet Parmar, Photo Credit: CPIJ

At the event, Sharanjeet Parmar discussed her experience as a prosecutor at the Special Court for Sierra Leone (SCSL) in the prosecution of sexual and gender-based violence (SGBV). I presented conclusions from a UN Women-funded project to gather best practices and lessons learned from the SCSL in its investigations and prosecutions of sexual and gender-based violence (SGBV). Fannie Lafontaine, Canada Research Chair on International Justice and Human Rights, moderated the event, which was opened by Ambassador Amadu Koroma, Deputy Permanent Representative (Political),  Permanent Mission of the Republic of Sierra Leone to the UN, and Catherine Boucher, Counsellor, Permanent Mission of Canada to the UN.

In this blog post, I will briefly explain the UN Women-funded project and some of the best practices that emerged. Over the past year, I, along with a small team consisting of Wayne Jordash, former SCSL defence counsel, Maxine Marcus, former SCSL prosecutor, and Fannie Leveau, gender issues consultant, interviewed over 30 individuals who had worked with the SCSL during that court’s 2002-2013 lifespan.

We spoke with individuals with a wide range of experiences – as investigators and prosecutors within the Office of the Prosecutor, as outreach workers, psycho-social support staff, and victim/witness protection staff in the Registry, defence counsel, judges and Chambers staff, and civil society members who worked closely with the SCSL. All had been involved in some way in investigating, prosecuting, defending or considering crimes of SGBV, or in supporting victims and witnesses who had experiences of SGBV.

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Fannie Lafontaine, Photo Credit: CPIJ

Those interviews revealed a number of best practices. First, the investigation and prosecution of SGBV was a key priority of all of the chief Prosecutors. This priority was originally set by the first Prosecutor, David Crane, at the outset of his mandate. Among his earliest hires were two investigators trained in SGBV and human rights, both experienced in gender analysis and both of whom had deep knowledge of the Sierra Leone conflict and familiarity with Sierra Leonean culture. They entered the Office with existing links to Sierra Leonean civil society (including women’s groups). Later, another gender advisor was added. These experts were integrated into multi-disciplinary investigation teams comprised of male and female international and local staff, with a combination of security, country, child rights and financial crimes experts. This meant that, from the beginning, the investigations were multifaceted and contextualized, with an understanding of how SGBV fit into the larger crime pattern. This translated into the collection of strong evidence on SGBV – in the context of all of the other crimes – for the prosecutors to use and apply in the indictments and trials.

Second, the large number of Sierra Leoneans in the SCSL – a proportion which increased over time to become a majority – meant that there was a deeper understanding of customary and traditional practices than there would be if the staff was mostly or entirely international. This strengthened the ability of those participating in the judicial process to understand witness narratives, including on SGBV, and the context within which the crimes were alleged. This was particularly important with respect to the forced marriage, rape and sexual slavery charges.

Third, the Registry contained an expert psychologist, whose work was directly linked to the SGBV and child soldier charges. The psycho-social support staff were Sierra Leonean. Together, the psychologist and her staff provided psychosocial support to SGBV survivors, among others, and adapted that support to fit the realities of the types of trauma experienced in Sierra Leone. This support helped to make victims feel comfortable enough to participate in the court process. Staff working with witnesses were provided with additional training on psycho-social support. However, it is important to note that the protection of, and support and outreach to, SGBV victims was limited by the lean budget of the court.

Fourth, outreach to the community throughout Sierra Leone was a priority within the court from the very beginning, despite the lack of budgetary support for this activity from the SCSL’s Management Committee. Outreach – including on SGBV crimes – commenced before the formal investigations began, first carried out by NGOs and thereafter directly by the SCSL. Staff were dedicated to outreach, making it happen despite the lack of budget. Eventually, the European Union agreed to fund the outreach.

The OTP was the first organ of the court to engage in outreach to women and girls in the field, with direct involvement of the Prosecutor. Responsibility was later shifted to the Registry, with the outreach program involving gender-sensitive Sierra Leoneans with connections to affected communities, including SGBV survivors. Outreach was organized and largely conducted by nationals, and that outreach included women’s groups, as well as organizations representing victims.

Principals of the SCSL travelled regularly to locations throughout the country to answer questions, explain the mandate, receive feedback and respond to concerns. They answered questions about SGBV crimes directly and openly, encouraging discussion of the issue. The outreach continued throughout the mandate of the court, and included updates on trials involving SGBV charges. That said, and in spite of the relative success of the SCSL’s outreach in comparison with other international tribunals, our interviewees indicated that more could have been done on SGBV outreach. For example, more confidence-building could have been done with those subjected to forced marriage, who were worried that they would be prosecuted by the SCSL because of their simultaneous victim-perpetrator status (as many of them were also forced to support or fight with the rebels).

Fifth, the fact that SCSL was based in Sierra Leone was a key factor in the court’s ability to successfully investigate and prosecute SGBV crimes. Interviewees indicated that localizing the court in-country facilitated access to SGBV evidence in a manner sensitive to the communal context. It also led to greater understanding of the links between SGBV and customary/traditional belief systems, as well as increased the understanding within the court of the context of the SGBV crimes. Location in-country also strengthened engagement with Sierra Leonean police services and organizations in witness protection activities and allowed for more effective risk assessments. Finally, being located in Sierra Leone allowed the court to more easily consult with community members, including consultations by the Office of the Prosecutor with a wide variety of women’s groups on the forced marriage charges.

There are many other best practices, as well as lessons learned, identified by our interviewees, which will be included in our final report, which is in the process of being drafted. If any IntLawGrrls readers have experience in the consideration of SGBV in the SCSL and wish to be interviewed for this study, please feel free to contact me at vooster@uwo.ca.

Thanks are extended to UN Women and the European Commission for funding Phase 1 of this study.

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ICC Assembly of States Parties Symposium: Wrap-up

ASP final moments 2017

Final session of ASP16  Credit: CPIJ

Day 9 (14 December) was the final day of the 2017 International Criminal Court Assembly of States Parties (ASP) session. It ended in the very early morning hours of 15 December with the consensus adoption of a resolution activating the crime of aggression in the Rome Statute effective 17 July 2018, the 20th anniversary of the Rome Statute. Under the compromise adopted by the ASP, the ICC’s exercise of jurisdiction over the crime of aggression only applies to nationals of ICC Member States that have ratified the amendments:

  1. Confirms that, in accordance with the Rome Statute, the amendments to the Statute regarding the crime of aggression adopted at the Kampala Review Conference enter into force for those States Parties which have accepted the amendments one year after the deposit of their instruments of ratification or acceptance and that in the case of a State referral or propio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments

However, ICC judges maintain their independence in ruling on jurisdictional matters (see para 3). As well, referrals from the UN Security Council have no jurisdictional limitations.

The negotiations and country positions on the aggression compromise are discussed in more detail here by Silviana Cocan as part of this Symposium. As well, see the always excellent Dapo Akande over at EJIL Talk!.

The final day also included the adoption of a number of other resolutions on cooperation (see Milena Sterio’s excellent IntLawGrrls post on this topic), victims, legal aid (launching a consultation process for revision) and the 2018 20th anniversary of the Rome Statute.

The 2017 ASP was productive and a watershed year. Six new judges were elected, five of whom are female. Kirsten Meersschaert, Director of Programs at the Coalition for the ICC commended this outcome: “Having balanced gender representation on the ICC bench is not only conducive, but essential to ensuring more representative justice.” As well, a new ASP President was chosen, and two new Vice-Presidents.

The ASP also adopted amendments to the Rome Statute proposed by Belgium, adding to the list of war crimes:

  • Employing weapons, which use microbial or other biological agents, or toxins, whatever their origin or method of production;
  • Employing weapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays; and
  • Employing laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices.

However, states did not include landmines in the list of prohibited weapons.

The ASP adopted a 2018 ICC budget of €147,431.5 million, representing a small increase of 1.47% over 2017. This gives rise to concerns that the ICC’s Office of the Prosecutor is not being provided with sufficient resources to increase its investigation load in line with both need and demand.

In sum, the 16th session of the ASP set the Court forward on a number of matters, but also clearly identified the challenges for 2018.

It has been a pleasure working with a team of people on this IntLawGrrls ICC ASP Symposium. Thanks are extended to IntLawGrrls Milena Sterio, Sara Wharton and Rosemary Grey for their posts. As well, I am grateful for the many blog posts prepared by the members of the Canadian Partnership for International Justice (CPIJ): Silviana Cocan, Sophie Gagné, Geneviève Geneau, Jenny Poon, Isabelle Jacovella Rémillard, Catherine Savard, Nicole Tuczynski and Annika Weikinnis. I wish to thank Erick Sullivan of the CPIJ for his behind-the-scenes coordination.

 

ICC Assembly of States Parties Symposium: Day 8

Day 8 of the International Criminal Court Assembly of States Parties (ASP) featured a number of important discussions. The morning plenary began with an interactive session on the 20th anniversary of the ICC, including an address by the President of the

President ICC Day 8 Plenary

Photo Credit: CICC

ICC, Silvia Fernández de Gurmendi, who asked the audience to recall the original goals of the ICC and consider how they are still applicable today. In his remarks, William R. Pace, Convenor of the Coalition for the ICC, called upon all supporters of the ICC to recommit to the Court and its mandate. He urged a wide variety of actors – states, NGOs, the ICC, the United Nations, Italy as the host country of the Rome negotiations, academia, etc. – to organize events at the domestic, regional and international levels to seriously take stock of the last two decades, to educate, and look forward to the Court’s next 20 years. The CICC will launch commemorations on 15 February 2018 with a forum and reception in The Hague. A number of states made comments on their hopes for the 20th anniversary, including Estonia on behalf of the European Union, Norway, Philippines, Slovenia, Finland, Andorra, Mexico, New Zealand (calling for more technical assistance to States Parties and those hoping to join), Japan, Canada, Chile, Costa Rica, Senegal, Peru, Uruguay and Korea.

Other sessions of the day were closed and focused on the Court’s 2018 budget, the overarching ‘omnibus’ resolution, the proposed war crimes amendment, and intense negotiations on the activation of the crime of aggression. Day 9 is the final day of the ASP. We will see adoption of ASP resolutions on cooperation, the 2018 Court budget and the omnibus resolution, as well as recommendations to the ICC’s judges on the qualifications to take into account in electing the ICC’s Registrar in March 2018. We may also see a resolution on amendments to the Rome Statute. Of course, all eyes will be on the outcome of the discussions on activation of the crime of aggression.

On Day 8, I was very pleased to organize and speak at a side-event on “Prosecuting Sexual and Gender-based Violence at the Special Court for Sierra Leone”, which will be the subject of a separate post.

Sophie Gagné joins the IntLawGrrls ICC ASP Symposium today with a blog post in French on judge-elect Kimberly Prost. Sophie graduated in 2016 from an Integrated Bachelor in Public Affairs and International Relations (hon.) at Université Laval. She is currently both a full-time LL.M. and part-time LL.B. candidate at Université Laval. Her LL.M. research project, which she is completingPhoto_Sophie Gagne under the supervision of Prof. Fannie Lafontaine and Julia Grignon, is about qualification of the end of armed conflicts by international criminal judges. She participates in the work of the Canada Research Chair on International Criminal Justice and Human Rights, as well as of the Interdisciplinary Centre on Africa and Middle East. Since 2015, she has been working closely with the Clinique de droit international pénal et humanitaire, as well as with the Canadian Partnership for International Justice since its creation in 2016.

Heartfelt welcome, Sophie, to the IntLawGrrls Symposium!

ICC Assembly of States Parties Symposium: Day 7

The official schedule of Day 7 of the International Criminal Court Assembly of States Parties (ASP) included the presentation of reports by Coordinators and the introduction of draft resolutions – a signal that we are entering the final days of the ASP. As well, States Parties participated in a closed Working Group discussion on the budget, as well as a (lengthy) closed evening discussion on the activation of the crime of aggression.

While not formally part of the ASP, much attention was focused on the Prosecutor’s 26th report to the United Nations Security Council on the situation in Darfur, Sudan. TheProsecutor UNSC Security Council referred the Darfur situation to the ICC in 2005, through Resolution 1593, but has done little to assist the ICC since that time, while still requiring her to report twice yearly on the Court’s progress in the related cases and investigations. The Prosecutor’s frustration was evident. She expressed deep concern regarding States Parties’ inaction on arresting Sudan’s indicted President, and the Security Council’s inaction both on funding the ICC’s Darfur investigation and in dealing with states failing to cooperate with the Court.

The Prosecutor highlighted the argument made by some states that the law is unclear about their obligation to arrest and surrender a sitting Head of State. She rejected these arguments: “For those who may have entertained doubts about the legal obligations of States Parties and the Republic of the Sudan to arrest and surrender Mr. Al Bashir, all such doubts have since been dispelled following the decision of Pre- Trial Chamber II of the 6th of July, earlier this year … The Chamber found that South Africa failed to comply with the Court’s request to arrest and surrender Mr. Al Bashir, contrary to the Rome Statute, and that this failure prevented the Court from exercising its functions and powers under the Statute … there can be no justification for States Parties to fail to arrest a suspect against whom an ICC warrant of arrest has been issued, irrespective of that person’s official status.”

She concluded by saying that it is her Office’s hope “that this Council will do its part to enforce decisions by the Court in relation to situations which the Council itself has referred to the Court.  This specific inter-institutional role is clearly envisaged by the Rome Statute and codified, as negotiated during the Rome Conference, which also saw the participation of permanent members of the Council.”

Tomorrow, the ASP will begin with a plenary meeting to plan for the 20th anniversary of the Rome Statute. Closed meetings on the budget and on the activation of the crime of aggression will continue. Informal consultations on the ‘omnibus’ resolution will resume, for adoption on the last day of the ASP.

I am pleased that Isabelle Jacovella Rémillard joins us today to contribute a post on side-events at the ICC ASP focused on sexual and gender-based violence.

Isabelle is a Project Coordinator at theIJR-Portrait-Copy Canadian Centre for International Justice (CCIJ). She earned her Bachelor’s degree in Conflict Studies and Human Rights at the University of Ottawa and her double degree in civil law and common law at McGill University. She also holds a professional certificate in Disaster and Humanitarian Response from the McGill Humanitarian Studies Initiative.

Prior to working at CCIJ, she was involved in immigration and refugee law work, both as the Coordinator of the Oppenheimer Chair in Public International Law, where she worked alongside the United Nations Special Rapporteur on the Human Rights of Migrants, and at Solidarity Across Borders, where she provided assistance to asylum seekers.

As the Project Coordinator of the Community Engagement in International Justice project, Isabelle coordinates the implementation of the project, which includes new multimedia that showcases CCIJ’s clients and their access to justice efforts. She is also responsible for coordinating CCIJ’s digital outreach and organising legal education workshops with affected communities as part of this project.

 Heartfelt welcome, Isabelle, to the IntLawGrrls ICC ASP Symposium!

ICC Assembly of States Parties Symposium: Day 6

Day 6 of the International Criminal Court Assembly of States Parties (ASP) focused on various aspects of state cooperation.ICC

The main event of the day was a plenary meeting on cooperation. The first part of the plenary focused on the tracking, freezing and recovery of financial assets, a topic the ASP has identified as a priority focus. This topic was not new to the ASP: in October, France and Senegal (as facilitators of the Working Group on cooperation between the International Criminal Court and States Parties) co-sponsored a meeting in Paris on asset recovery. That meeting resulted in a set of non-binding recommendations and actions for both States Parties and the ICC on asset recovery, which are now under consideration at the ASP. The plenary itself considered ways in which state capacity can be increased in the conduct of asset investigations.

The second part of the plenary was forward-looking, focused on the future of state cooperation with the ICC. It was during this session that nongovernmental organizations presented a joint statement. This statement was delivered by Stella Ndirangu of Kenyans for Peace with Truth and Justice on behalf of 11 organizations, and included this plea: “When states do not cooperate with the Court, victims are denied justice. Women, men and children who look to the Court for justice are denied that opportunity. We regret, therefore, the Assembly’s limited attention to addressing non-cooperation.”

Day 6 contained a very full schedule of side-events. Geneviève Geneau contributes a blog post today on one of those side-events, on the topic of the ICC’s investigations in Mali.

Geneviève is a PhD student in international criminal law at the University of Ottawa (Canada), under the supervision of Professor Muriel Paradelle. Her research subject Photo_Geneviève Geneauconcerns critical analysis of the concept of gender justice with regard to sexual violence committed in furtherance of the crime of genocide. Her research interests are primarily sexual and gender-based violence in international criminal law and feminist legal theories. As part of her doctoral studies, she has held a position of lecturer in legal drafting at the Faculty of Law, Civil Law Section, University of Ottawa. She is also involved as a research professional with the Research Chair in law on food security and diversity at Laval University (Canada). She has been a lawyer and a member of the Quebec Bar since 2013.

 Heartfelt welcome, Geneviève, to the IntLawGrrls ICC ASP Symposium!

Go On! Prosecuting Sexual & Gender-based Violence at the Special Court for Sierra Leone

SCSL Dec 13 ASP SideEventGo On! makes note of interesting conferences, lectures, and similar events.

Interested IntLawGrrls readers in New York are invited to this event, taking place on the margins of the International Criminal Court 16th Assembly of States Parties:

“Prosecuting Sexual and Gender-Based Violence at the Special Court for Sierra Leone”, on December 13 from 1:15pm-2:30pm at the Permanent Mission of Canada to the United Nations.

Ms. Sharanjeet Parmar, former SCSL prosecutor, will discuss her experience in prosecuting sexual and gender-based crimes, and I will present conclusions from a UN Women-funded study of best practices and lessons learned in the SCSL’s prosecution of these crimes.

Co-sponsored by the Permanent Missions of Canada and Sierra Leone to the United Nations, UN Women, Western University and the Canadian Partnership for International Justice.

Light lunch will be served.

Please RSVP here: https://goo.gl/forms/rlVMWmz5kP0mgwy93

ICC Assembly of States Parties Symposium: Day 5

The General Debate concluded today – Day 5 of the International Criminal Court Assembly of States Parties (ASP) in New York. The last of the Member States made statements, including Nigeria and Tunisia. Nigeria urged dissatisfied states not to withdraw and, rather, to recall the reasons underlying their states’ original support for the Court.

Observer states Ukraine, China, Iran and the United States also made statements. The United States rejected any ICC exercise of jurisdiction over US personnel absent the government’s consent or a UN Security Council referral, including in any potential investigation into US troop conduct in Afghanistan. China implicitly critiqued the Court, for example in statements such as “It is necessary for the Court to strike a balance between its two core values, namely, peace and justice. Justice should not be pursued at the expense of peace and reconciliation” in conflict zones.

The General Debate ended with statements by civil society groups. The Convenor of the

HRW at Genral Debate

HRW Speech at General Debate

Coalition for an ICC, Bill Pace, urged states to be proactive rather than reactive. Among the many NGOs to speak was Human Rights Watch, which pointed out that “in this Assembly, there has been too little attention to addressing non- cooperation and we urge strengthened efforts in this area next year.” Human Rights Watch also expressed concern about the budget discussions: “Human Rights Watch is deeply concerned that the current budgeting process for the ICC will continue to result in inadequate funding for the effective implementation of the Court’s mandate.”

Day 5 also included consideration of the ICC’s 2018 programme budget request. Registrar Herman von Hebel presented the 2018 request (147.9 million Euro, up 4.4% from 2017) based on the needs of the various ICC organs, and the Chair of the ASP’s Committee on Budget and Finance presented the CBF’s recommendations on the budget request (2% growth over 2017). States also participated in informal consultations on the ASP’s omnibus resolution, titled Strengthening the ICC and the ASP.

Annika Weikinnis contributes a blog post today on side-events concerning the Prosecutor’s preliminary examinations and the aftermath of the Burundi withdrawal. Annika  is currently enrolled in the Graduate Studies in Law program at the University of Ottawa (Canada) and conducts research in the field of international criminal law, inAnnika particular the involvement of transnational corporations in international crimes. She holds a Master’s degree in Politics and International Relations from the University of Aberdeen and a Master’s degree in Law and Politics of International Security from the Vrije Universiteit Amsterdam. Attending the ASP16 is an invaluable experience for her, academically and professionally, and she hopes to gain further insights in the organisation, processes and issues concerning the ICC. Heartfelt welcome, Annika, to the IntLawGrrls ICC ASP Symposium!