New supplements to the International Protocol on documentation and investigation of sexual violence in conflict for Iraq, Myanmar and Sri Lanka

Cover_Myanmar_Burmese supplement.jpgOnce hidden and unspoken, reports of sexual violence now feature prominently in daily media dispatches from conflict zones around the world. This visibility has contributed to a new emphasis on preventing and addressing such violence at the international level.

Promoting the investigation and documentation of these crimes is a key component of the international community’s response. However, this response requires thoughtful and skilled documenters.  Poor documentation may do more harm than good, retraumatising survivors, and undermining future accountability efforts.

Recently, the Institute for International Criminal Investigations (IICI) and international anti-torture organisation REDRESS, with the funding support of the United Kingdom’s Foreign and Commonwealth Office (FCO), have launched a series of country-specific guides to assist those documenting and investigating conflict-related sexual violence in Myanmar, Sri Lanka and Iraq.

The guides (available in English, Burmese, Tamil, Sinhalese, Arabic and Kurdish on the REDRESS and IICI websites) complement the second edition of the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict, published in March 2017 by the FCO.

The Protocol aims to support practitioners to document appropriately by providing a “set of guidelines setting out best practice on how to document, or investigate, sexual violence as a war crime, crime against humanity, act of genocide or other serious violation of international criminal, human rights or humanitarian law”. It is a tremendous resource for practitioners, covering theoretical, legal and practical aspects of documentation.

However, as the Protocol itself makes clear, documentation of conflict-related sexual violence is highly context-specific. Each conflict situation and country has individual legal and practical aspects that must be considered alongside the Protocol’s guidelines.

The guides aim to fill this gap by addressing the context for and characteristics of conflict-related sexual violence in the three countries. They address legal avenues for justice domestically and at the international level, specific evidential and procedural requirements and practical issues that may arise when documenting such crimes.

The publication of these guides on the three different countries highlights some interesting comparisons and contrasts.  Although the background to and most common forms of sexual violence differ from country to country, the motivations for the violence have parallels. Similarly, the stigmatisation of survivors is a grave concern in each country, influencing all aspects of daily life for them and the way that institutions and individuals respond to the crimes committed against them.

In all three countries, a landscape of almost complete impunity prevails, and in many situations survivors, their families and practitioners face significant threats to their security – often from state actors (e.g. police, military, state security). This harsh reality is borne out by the fact that although the drafting of the supplements relied heavily on the experience and input of local practitioners, due to security concerns, very few were able to be individually acknowledged for their contributions.  Continue reading

“Bemba and Beyond,” reflections on command responsibility

One week after the International Criminal Court Appeals Chamber acquitted a Congolese politician-warlord whom a Trial Chamber unanimously had convicted of rape, pillage, and other crimes, practitioners and scholars continue to debate the decision’s significance. Indeed, the case, Prosecutor v. Bemba, has been invoked in both the papers so far presented at the 2-day ICC Scholars Forum now under way at Leiden Law School’s Hague campus.

My own initial thoughts – concerned not about the decision’s fact-based details but rather to its refashioning of the legal doctrine of command responsibility – have been published at EJIL: Talk!, the blog of the European Journal of International Law. My post, entitled “In Bemba and Beyond,” discusses command responsibility as “a time-honored doctrine with roots in military justice and international humanitarian law.” Placing this appeals judgment in the context of other decisions, the post warns:

“Together, such rulings suggest a turn away from the goal of assigning responsibility at high levels, and toward a jurisprudence which acknowledges (with regret) the commission of crimes, yet holds no cognizable legal person responsible.”

Full post here.

(Cross-posted from Diane Marie Amann)

Making the Case for Protecting Cultural Heritage under the Alien Tort Statute

On July 29, 1990, Moses Thomas, then-commander of the Special Anti-Terrorist Unit of the Armed Forces of Liberia, ordered his troops to massacre nearly 600 unarmed men, women, and children taking refuge in St. Peter’s Lutheran Church from the country’s civil war. For nearly three decades, Thomas and his forces evaded accountability despite the massacre being one of the most horrific attacks on civilians in the country’s history.

Twenty-eight years later, on February 12, 2018, the Center for Justice and Accountability (CJA) filed a case in U.S. federal court on behalf of four Liberian citizens who survived the church massacre by hiding under church pews and dead bodies while their loved ones were murdered around them.

In the suit, the survivors alleged several claims for war crimes and crimes against humanity under the Alien Tort Statute (ATS), which confers jurisdiction to U.S. federal courts over claims of international law violations brought by non-nationals. In one claim, the plaintiffs allege that Moses Thomas had committed a war crime by intentionally directing attacks against a building dedicated to religion. CJA’s case against Thomas marks the first time such a claim has been brought under the ATS.

The intentional attacking or destruction of religious property—a form of cultural heritage—is as much a human rights violation as the physical destruction of a people. Nonetheless, this form of violence is on the rise throughout the world, occurring both in times of armed conflict and peace, systematically and sporadically.

In the last decade alone, Sufi religious and historic sites have been destroyed and graves desecrated in Libya; cultural and religious sites, artifacts, and manuscripts have been destroyed during the occupation of northern Mali; temples, monasteries, shrines, and millenniums-old sites, such as Palmyra, have been destroyed in the Syrian Arab Republic; Coptic churches and monasteries in Egypt, Jewish sites in Tunisia, and hundreds of shrines belonging to the Sufi sect of Islam across Northern Africa have all been targeted and destroyed. This list of incidents—incidents that have had a profound effect on cultural and religious communities globally—is in no way exhaustive.

Such deliberate destruction of cultural heritage violates numerous human rights, including the right to freedom of thought, conscience, and religion, and the freedom to take part in cultural life. Intentionally attacking cultural and religious property also is in violation of international humanitarian law—though the targeted nature of recent attacks shows, in many instances, that what once were protected structures during armed conflict have now become strategic military targets. Such acts of destruction additionally violate many States’ treaty obligations under several binding international legal documents.

Despite the extensive legal framework aimed at protecting such cultural and religious property, accountability for their destruction is slow or wholly unpursued. CJA’s case may thus lay the groundwork for one viable avenue to change this tide. The question, however, is whether the claim alleged by CJA for the destruction of religious property meets the legal thresholds for cognizability under the ATS established by the U.S. Supreme Court. Continue reading

Private Military and Security Companies or Mercenaries? Bringing Law Back Into the Discussion

In late May 2017, Erik Prince, former Navy SEAL and founder of the private security firm Blackwater, sparked an intense debate when he laid down his proposed plan to restructure the war in Afghanistan by increasing the reliance on private contractors. Critics of his plan feared unaccountable mercenaries reaping benefits of the long-going conflict. Proponents argued that private contractors would be a cheaper alternative and could deliver better results. Trump recently decided to focus on a troop increase instead of the private sector solution. While Prince’s plan will disappear in the archives of the White House – for now – the question of how to deal with private military and security companies remains.

The privatization of security is a complex issue. Some believe that it threatens the monopoly over the use of force and state sovereignty. But to understand this complex industry in general and Prince’s plan in particular, it is essential to question whether private contractors actually qualify as “mercenaries” and whether they are unaccountable, as many claim. It is time to bring the law back into the debate and stop throwing around buzzwords without understanding their legal basis.

There were two parts of Prince’s plan involving private contractors. On the one hand, there was his proposal to have about 5,000 private contractors work as trainers and mentors, embedded with the Afghan army. On the other hand, there were reports about a private air force of about 90 planes.

In the media outcry following Prince’s proposal the private contractors were predominantly labelled as mercenaries. Mercenaries are defined in Art. 47 of the Additional Protocol I (AP I) to the Geneva Conventions. The same definition is also relied on in Art. 1 of the UN Mercenary Convention. To be considered mercenaries, contractors would, among other actions, need to take direct part in hostilities, be motivated essentially by the desire for private gain and be neither a national of a party to the conflict nor a member of the armed forces of this party.

According to Prince’s plan, the contractors working as trainers and mentors should have been embedded with the Afghan military. It is complicated to envision how this would work in practice. The contractors could either enlist with the Afghan armed forces for the duration of the assignment (this was done before in Papua New Guinea) or be declared de facto members of the armed forces. A similar solution might have been sought for the members of the private air force.

In either case the contractors would not fall under the definition of mercenaries, even leaving aside the difficult questions of how to embed them into the Afghan military. Generally, private military and security contractors rarely fall under the narrow mercenary definition because of the definition’s focus on the intent of the contractors. The contractors’ scope of work is simply too broad and their motivations too diverse. Continue reading

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.

Continue reading

ICC Assembly of States Parties: Children and Conflict

An estimated 230 million children live in armed conflict-affected countries. Of these, approximately 250,000 children are involved in the conflicts themselves. Some are used for fighting; they themselves turned in to tools of war. Others may act as messengers, porters, cooks, or sex slaves. The UN Secretary-General’s 2016 report on children and armed conflict identified 58 parties to current conflicts that recruit and use children. This includes 7 government security forces and 51 non-state armed groups in countries such as the Democratic Republic of Congo, Iraq, Nigeria, and Syria. As some of the most vulnerable members of society, children deserve and require concentrated efforts from the international community to protect them in times of conflict, to prevent their use in war, and to aggressively go after those who violate international law by victimising them in conflicts.

On 16 November 2016, the ICC Office of the Prosecutor (OTP) launched its Policy on Children aimed at strengthening ongoing efforts to address atrocity crimes against children as well as providing a framework for helping the OTP in their interactions with children from preliminary investigations to post-trial. On 18 November 2016, Canada hosted a side event at the ICC Assembly of States Parties (ASP) on “Child Soldiers: Prevention and Accountability”. This event united speakers on the preventative efforts of the Roméo Dallaire Child Soldiers Initiative with ones on the accountability measures (from preliminary investigation to post-trial) of the ICC OTP.

“War has changed,” began LGen Dallaire (Ret’d), “therefore our tactics need to change.” As Commander of the UN Mission to Rwanda during the Rwanadan Genocide, LGen Dallaire faced first-hand the horror of children turned into weapons of war and the fundamental moral dilemma all soldiers and police forces face when confronted with an enemy combatant that is not merely a combatant, but also a child. These members of professional forces face the choice: don’t react and either take casualties or give up ground; or, react and have to live with the fact that they have used armed force against a child, they suffer. The Dallaire Initiative aims to address this gap that professional forces have in addressing the child dimension as well as to address the recruitment of children as tools of war. To achieve these ends, it focuses on training, research, and advocacy. Training to military, police, and peacekeepers to provide the necessary tools and knowledge to recognize and prevent the recruitment and use of child soldiers. Research to understand patterns of child recruitment, to identify that such recruitment and use can be a warning sign for mass atrocity and genocide, and to gain insights from former child soldiers. High-level advocacy with states, the United Nations, NATO, the African Union and so on, in an effort to have a direct impact on policy and procedures relating to child soldiers. Critically, the Dallaire Initiative takes a very practical approach to the issue rather than a legalistic approach. In other words, it focuses on practical reasoning for breaking down support among armed forces that recruit and use children, rather than merely on what the law says.  Ultimately, the organization seeks to prevent the recruitment of children before they suffer the horrors of being used as tools of war.

Continue reading

Technology & Accountability MOOC

I am pleased to share that the Program on Liberation Technology (LibTech) at Stanford’s Center on Democracy, Development and the Rule of Law together with the National Democratic Institute (NDI) are proud to launch a free massive open online course (MOOC): Technology for Accountability Lab.  The official announcement follows:

The course is geared for global democracy activists, software developers and other stakeholders to conceptualize, plan and implement technological tools and advocacy strategies to improve transparency by opening political and governmental processes.

This 10-week course – which starts on August 9, 2016 – will feature video lectures by Stanford professors Terry Winograd and Larry Diamond, as well as lecturers from NDI, Transparency International, Sunlight Foundation, Creative Commons, ProPublica, and other experts.

The course includes topics such as monitoring corruption, tracking money in politics, and using technology to monitor election fraud. In order to be relevant to a broad international audience, the course draws case studies and presentations from Brazil, Czech Republic, India, Morocco, Pakistan, Palestine, US, UK and other countries.

Through a grant made possible by the Steven’s Initiative at the Aspen Institute (supported by the State Department and the Bezos Family Foundation), the course materials have been translated into Arabic. For the first time on Stanford Online, participants will have the option of taking the course through an Arabic platform – with extensive language support – to facilitate the participation of youth in the Middle East and North Africa.

Course topics will expose participants to both theoretical and practical applications of the field, which include: monitoring corruption at the grassroots; tracking legislators and their bills; using technology to monitor election fraud; tracking money in politics; and designing innovative technology tools. Participants will also have the option to collaborate on projects to design or implement real-world democracy tools, including advocacy materials, during the course.

NDI and Stanford’s CDDRL – who both have a long tradition of working with democracy activists around the world – developed and designed the course in response to activists’ interest in incorporating technology into their work. The course aims to attract a unique set of global participants with a background in accountability movements who can learn more about the tools that can help them to enrich and magnify their work. No previous experience or exposure to technology is required.

To learn more about the course and register, please visit the course link. Please share this announcement widely with interested participants and professional networks (#TFALAB).Accountability MooC