Colombia’s Constitutional Court issues landmark decision recognising victims of reproductive violence in conflict

A month ago, on 11 December 2019, the Colombian Constitutional Court issued an important decision recognising that women and girls who suffered forced contraception and forced abortion by their own armed groups should be recognized as ‘victims of armed conflict’. The decision is one of very few in the world to specifically recognise reproductive violence as a form of harm committed against women and girls in times of conflict. It thus sets important legal precedent in recognising a form of gender-based violence that has long remained invisible. Although the full written decision has not yet been made available, a summary of the decision has been published. In what follows, I analyse this summary.

Helena’s case

The case was brought by Women’s Link Worldwide on behalf of Helena (pseudonym), a young woman who had been forcibly recruited into the FARC at the age of 14. While with the FARC, she was forced to take contraceptives (injections) and forced to undergo an abortion when she became pregnant. She suffered significant and long-lasting health consequences as a result of the unsafe conditions in which these procedures were forcibly carried out. Continuing to suffer negative health consequences, Helena fled and was in hiding for many years until the peace deal with the government was signed. In 2017, she submitted an application to be recognised as a victim and to seek reparations under Colombia’s Law on Victims and Land Restitution (Law 1448). This law, adopted in 2011, recognizes victims of the armed conflict and confirms their rights to truth, justice and reparations. It includes provisions on the restitution of land and other reparations, and requires that special attention be paid to the needs of specific groups and communities, such as women, survivors of sexual violence, trade unionists, victims of forced displacement, and human rights defenders.

The agency charged with the registration of victims under this reparations framework (UARIV), however, subsequently denied Helena’s claim for victim status. In doing so, UARIV had relied upon an article in Law 1448 that denied victim status to members of illegal armed groups (Article 2(3)), and held that, in any case, Helena’s claim was submitted outside of applicable timelines set out in Law 1448. Helena fought this decision; while the first instance court did grant her access to government-provided medical support, her claims for recognition as a victim and for reparations under Law 1448 were dismissed in both first and second instance. She thus appealed her case to the Constitutional Court, who heard the matter in 2019, and issued this landmark decision at the end of last year. Importantly, Helena’s case was selected for review by the full panel of nine judges, rather than being decided upon by a panel of three judges. This illustrates the importance the Constitutional Court attached to the issues.

Constitutional Court’s decision

In its December 2019 decision, the Constitutional Court firstly found established that Helena was the victim of grave violations of her fundamental rights. The Court subsequently held that in dismissing her application to be registered as a victim of the armed conflict, UARIV violated Helena’s fundamental rights on two grounds. Firstly, UARIV had violated Helena’s rights as a victim by failing to interpret the applicable rules in accordance with established constitutional principles of most favourable interpretation, good faith, pro personae, and the primacy of substantive law. Secondly, UARIV failed to properly substantiate its decision by neither acknowledging the acts of forced abortion and forced displacement Helena suffered, nor by recognising that Helena’s specific circumstances constituted force majeure, preventing her from submitting an application within designated timelines.

The Court acknowledged that, on its face, Article 2(3) of Law 1448 allowed for the denial of victim status to ex-combatants who demobilised as an adult, and that, under this interpretation, Helena would have to seek reparations through other mechanisms, not including Law 1448 (as Helena fled the FARC after she turned 18). However, the Court also questioned whether this exclusion in Article 2(3) was consistent with Colombia’s obligations towards victims of the armed conflict, noting in particular the coercive nature of the practice of forced contraception and abortion within the FARC and that these acts were often perpetrated upon girls under 18, or upon young women who had only just reached the age of maturity.

According to the Court, denying Helena the right to be recognised as a victim under Law 1448, therefore, would violate her rights to access justice and to timely and adequate protection measures. Noting the principal obligation on the state to recognise victims of sexual violence as victims in such a way as to guarantee their rights to integral reparations, the Court also held that as a victim of sexual violence committed within an armed group, Helena would not have access to other avenues of reparations beyond Law 1448. As such, for the Court, registration in the Register of Victims constituted her only available avenue to adequately repair her fundamental rights.

Importantly, the Court held that the exclusion stipulated in Article 2(3) could not become an obstacle to reparations for victims of sexual violence who, as ex-combatants, were forcibly recruited into those illegal armed groups at a young age. Such a rigid interpretation of Article 2(3), according to the Court, would thus create an unconstitutional lack of protection and vulnerability. The Court also reiterated the state’s obligation to provide immediate, comprehensive, gender-sensitive and specialised health care to all victims of sexual violence by armed actors for such time as deemed necessary to overcome the physical and psychological health consequences of such violence.

For this reason, the Court relied upon the principle of declaring a ‘constitutional exception’ (la excepción de inconstitutionalidad) as provided for in Article 4 of Colombia’s Constitution to overrule the applicability of Article 2(3) of Law 1448 to Helena’s case. Pursuant to this principle, when faced with a conflict between an ordinary legal norm and a constitutional norm, the Court may declare a constitutional exception to preserve rights guaranteed by the constitution in a specific case. In this case, the Court held that relying upon this principle was the only way to guarantee Helena’s fundamental rights and to find an adequate balance between Colombian law and Colombia’s international legal obligations under international humanitarian law and international criminal law. Not doing so, the Court stressed, would give rise to consequences that it held to be unconstitutional. As such, the Court rendered Article 2(3) of Law 1448 inapplicable to this specific case.

The Court thus ordered:

  • that the decision by UARIV not to include Helena in the Register of Victims be declared void;
  • that within 10 days of the date of its decision, UARIV admit Helena to the Register of Victims on the basis of her having suffered forced recruitment as a child, sexual violence (including forced use of contraceptives and forced abortion), and forced displacement;
  • that within 15 days of the date of its decision, UARIV reinstate the provision of psychosocial and medical assistance to Helena to address the emotional, mental health and physical effects of having suffered sexual violence;
  • that in the provision of integral reparations to Helena, UARIV take a gender-sensitive approach to ensure her fundamental rights; and
  • that the health services provide and guarantee access to Helena to immediate, comprehensive, gender-sensitive, specialised care for as long as necessary to address the physical and psychological consequences of the violations she suffered.

Significance of the decision

In finding in favour of Helena’s registration as a victim of the armed conflict, this case establishes that ex-combatants who were forcibly recruited into illegal armed groups and suffered sexual violence, as well as reproductive violence, within those armed groups may seek victim status and thus have access to reparations under Law 1448 – a right they did not have before – regardless of the age at which they demobilised or fled. Beyond the significance of this finding for the claimant in this specific case, therefore, this decision also sets important legal precedent in recognising that victims of sexual and reproductive violence within armed groups are victims of armed conflict. This follows earlier jurisprudence by the International Criminal Court in the Ntaganda case (here and here; see also this 2017 post by IntLawGrrl Rosemary Grey). The Colombian decision is also one of very few in the world to specifically recognise reproductive violence as a distinct form of harm committed against women and girls in times of conflict.

As part of the case, the Court received 17 expert briefs from national and international human rights organisations, women’s rights organisations, academics and international experts, including one from the author of this blog post (written jointly with Ciara Laverty). In our amicus request filing, we offered the Court a comprehensive overview of the way in which reproductive violence long remained invisible in international law, how it is increasingly being recognised, and why it should be recognised as a specific and distinct form of harm, including when committed within armed groups.

Reproductive violence is a widespread yet understudied phenomenon that occurs in times of both conflict and of peace. It can have serious physical, mental, emotional and other consequences that persist long after the violence has occurred. It is a form of victimisation connected to but also different from sexual and other violence, due to the distinct harm it inflicts and the underlying value it is said to violate, i.e. reproductive autonomy. Although reproductive violence affects individuals of all genders, there are distinct forms of harm and violence that are inflicted only upon women and girls because of and directly targeting their sex-specific biological reproductive capacities, such as forced contraception, forced abortion and forced pregnancy.

Historically, however, there have only been few instances where such violence has been independently recognised and considered. This left reproductive violence relatively invisibilised in international law. Nonetheless, current developments reflect a growing recognition that reproductive violence constitutes a distinct form of violence that should be independently recognised as violating specific, individual rights and may also constitute (international) crimes in certain circumstances. This decision by the Colombian Constitutional Court recognising the specific victimisation of female ex-combatants through forced contraception and forced abortion thus contributes to providing greater legal recognition to a form of gender-based violence that has long remained invisible in international law.

Importantly, in addition to claiming her rights as a victim through the constitutional action that was the subject of this decision, Helena has also requested participation as a victim in case 007 before the Special Jurisdiction for Peace. As such, further jurisprudence, including on individual criminal responsibility for acts of reproductive violence such forced contraception and forced abortion, may be forthcoming in Colombia.

Stay tuned!

The ICC and Côte d’Ivoire: Is Justice Being Dispatched?

In December 2010, Luis Moreno-Ocampo, then Prosecutor of the International Criminal Court (ICC), warned protagonists of the post-election crisis in Côte d’Ivoire that “[t]hose leaders who are planning violence will end up in The Hague.” In November 2011, Laurent Gbagbo arrived in The Hague, his transfer to the ICC seen as diffusing tensions after his arrest in April by forces loyal to the internationally recognized winner Alassane Ouattara. Gbagbo was joined by his Minister of Youth, Charles Blé Goudé, in 2014. Having fled to Ghana, Blé Goudé was extradited to Côte d’Ivoire, which sent him to the ICC. At the time, Côte d’Ivoire was not party to the Rome Statute but the country accepted the ICC’s jurisdiction through an Article 12 (3) declaration, reconfirmed in 2010.

Yet, by the time the trial commenced in January 2016, the Ivorian justice system was functioning. Ouattara declared no more Ivorians would be sent to the ICC, insisting on trying Simone Gbagbo at home despite losing an admissibility challenge before the Pre-Trial Chamber, upheld by the Appeals Chamber.

The acquittal of Laurent Gbagbo and Blé Goudé in the ruling on no case to answer of 15 January 2019 spotlights the OTP’s investigation in the Côte d’Ivoire situation. As a written decision is forthcoming, this article will not examine the trial. Rather, it looks at the perception of the ICC at the local level and how it compares to and impacts national justice processes. 

During my research in Côte d’Ivoire, I had the privilege to interview Ivorians from different parts of the country, including victims, witnesses, judges, prosecutors, defense counsel and civil society. Views about the ICC and domestic accountability efforts are polarized. Some strongly support the ICC and maintain high expectations that may now be impossible to meet, while others are adamant Ivorians should be tried by Ivorians, however imperfect the justice.

For many, the ICC has lost credibility. Those who followed the Gbagbo and Blé Goudé trial share concerns as to how it was conducted, from procedural changes, to the OTP’s witnesses turning hostile, suffering memory loss or providing hearsay evidence with low probative weight. Further, the OTP’s sequenced approach­––necessary for securing state co-operation given the limitations of the Part 9 regime––with as yet no public arrest warrants released against supporters of Ouattara who are also suspected of committing crimes during the crisis, has increased the perception of the Court as an instrument for victor’s justice. This credibility deficit has weakened its impact. Early positive developments included domestication of the Rome Statute, with the incorporation of crimes against humanity, war crimes and genocide into the Ivorian Penal Code in 2015. However, as public perception decreased, related reforms important for local accountability efforts stalled, in particular, a law on witness protection; fortunately, it was passed by the National Assembly in early 2018 but is still to enter into force.

Unfortunately, there has been inadequate reverse co-operation, with requests to the ICC for the exchange of evidence to facilitate domestic investigations substantively unanswered. Further, Côte d’Ivoire lacks technical capacity for DNA and ballistics analysis, with resource limitations among the factors delaying further exhumations. While the OTP has lent some assistance, it would be mutually beneficial to go further. Domestic inquiries are also hampered by witness fatigue, with some witnesses reluctant to co-operate with a Special Investigation Unit (CSEI) after already giving testimony to the ICC and other domestic transitional justice mechanisms previously operating in parallel, including the National Commission of Inquiry (CNE), Commission for Dialogue, Truth and Reconciliation (CDVR), and National Commission for Reconciliation and Reparation of Victims (CONARIV). Other ICC witnesses declined to testify in local trials to avoid media exposure.

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‘Last resort:’ A final course of action, used only when all else has failed (Oxford Dictionary).

The Seventeenth Assembly of States Parties (ASP) has closed and one key takeaway is the need to have realistic expectations with respect to the role and capacity of the International Criminal Court (ICC) or ‘Court.’ This theme was woven into numerous side-events, especially those concerning complementarity and universal jurisdiction. 2018 marks the 20th anniversary of the Rome Statute. While the ICC continues to grow in its reach and impact, the institution has inherent and purposeful limitations. A fair assessment of the Court needs to be couched in terms of its intended scope, purpose, and place in the global landscape, which is highly specific. 

At the side-event “Justice, peace and security in Africa: deepening the role of the ICC,” hosted by the Coalition for the International Criminal Court and the African Network on International Criminal Justice, Phakiso Mochochoko (Office of the Prosecutor [OTP]) emphasized that the first question should never be, “Why isn’t the ICC doing something?” Such questions can and should be asked of the state and its institutions first. The ICC was never intended to be a first-responder or a sole responder.[1]The trigger mechanism for the Court’s involvement relies on the unwillingness or inability of the concerned state to investigate and prosecute those most responsible for atrocious crimes. This requires a lack of political will, a lack of capacity, or both. The scope is intentionally and inherently limited. Several side-events at the ASP reiterated that the ICC is one judicial mechanism for accountability, and one of last resort.[2]Scholars and practitioners need to focus on states, which have a primary obligation to investigate and prosecute these crimes in the interest of peace and security.

To this end, at the side-event “Complementarity and Cooperation Revisited: What role for the ICC in supporting national and hybrid investigations and prosecutions?” hosted by Luxembourg, North Korea, and Open Society Justice Initiative, Pascal Turlan (OTP) highlighted the importance of capacity building. Capacity building refers to both the legal framework and training of personnel in domestic institutions. Pascal sketched a coordinated relationship between the ICC and national mechanisms under the auspice of ‘positive complementarity.’ The ICC is willing to engage in cooperation measures such as information sharing or to engage in mutual assistance strategies in an effort to encourage national authorities to develop cases, or to assist in the investigation or prosecution of cases.[3]As noted above, if the ICC can prosecute, they can only do so against persons who bear the greatest responsibility for the alleged crimes. It would be up to national institutions to investigate and prosecute all others responsible and hold them criminally accountable. Theoretically, positive complementarity is highly useful in this regard and it should contribute to the proliferation of accountability and justice. 

Similarly, at the event titled “Commemorating the 20thanniversary of the Rome Statute,” H.E. Kimberly Prost expressed that complementarity should involve domestic, regional, and extra-territorial jurisdictions to battle impunity. She explained that this may require innovative solutions, such as those like the new court in Central African Republic and the IIIM in Syria, for example. Judge Prost said that productive dialogue cannot begin and end with a critique of the Court. Since no state can credibly oppose justice, alternative solutions need to be pursued. The capacity of states needs to be built so that the ICC becomes redundant, as intended by the drafters of the Rome Statute. Judge Prost’s contributions reflect a ‘back to basics’ approach. Complementarity is the bedrock of the Rome Statute System but is often neglected. This subjects the ICC to criticism and claims that it is not doing enough. States should look inward first to find ways to investigate and prosecute, either independently or with cooperative assistance and support from the ICC and/or other institutional mechanisms and/or organizations.  

Similar views were expressed by Karim Kham, Alain Werner and Carmen Cheung at the side-event “Closing the impunity gap: a pragmatic approach to universal jurisdiction.” Each one of these panelists explained that extra-territorial/judicial mechanisms, ad hoc tribunals, or other similar mechanisms are not mutually exclusive with the ICC. Karim said that it is important to reiterate that the ICC does not have a monopoly on justice. He explained that the goal is to close the impunity gap by whichever way(s) possible because justice is not politicized, it is ‘everybody’s business.’ 

The ICC plays an important role in the global landscape, but as pointed out by the intervention of Elise Keppler of Human Rights Watch at the side-event, “From Bemba to Rombhot: Reflections & Perspectives for the ICC in the Central African Republic,” the ‘one case, one suspect’ approach is likely insufficient for dealing with the broader realities of conflict. It is posed here that an ideal complementary schema might have national courts investigate and prosecute foot soldiers, a special/hybrid tribunal address mid-level officers and commanders, and the ICC deal with those most responsible for organizing and orchestrating the crime(s). This would be comprehensive and provide a greater possibility for accountability at all levels and sides of the conflict. Although social justice and legal justice are not the same, greater accountability and a strengthening of the rule of law at the local level can contribute to a (more) stable post-conflict environment. 

A holistic approach to justice will demand more than the ICC can provide. The Court is limited in its monetary and human resources, as well as its jurisdiction and scope. This is not to say that it has no utility or value. Rather, a more nuanced approach to complementarity can present important opportunities for justice and accountability by capacity building, strengthening domestic legal systems, and closing impunity gaps. This is an important step towards the goal of universal jurisdiction for atrocious crime. Framing critiques of the ICC within the principle of complementarity and universal jurisdiction can change the conversation in some significant and important ways. The ICC cannot do everything, nor is it supposed to. The potential role for complementary mechanisms to the ICC may be the best way to move the conversation (and the international criminal justice project) forward.   

This blogpost and my attendance at the 17thAssembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.


[1]The Rome Statute of the International Criminal Court, A/CONF.183/9 (17 July 1998): Preamble, Article 17, “The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”  

[2]This was a strong focus at the December 5 side-event, “Commemorating the 20thanniversary of the Rome Statute,” co-hosted by the Netherlands, Uganda, and Africa Legal Aid. This was a focus of H.E Kimberly Prost.

[3]There are limitations to this, for example the ICC will not share information if the alleged suspect could receive the death penalty, or if basic rule-of-law principles such as a right to a fair trial are not firmly established in the domestic context.

Carrots, Sticks, and the ICC: Prospects for Cooperation? Part 2

The contributions discussed in part one may be used to frame an analysis of the Court’s recent request to Belarus to cooperate in the arrest and surrender of al-Bashir. The ICC has issued two arrest warrants for al-Bashir, one in 2009 and one in 2010, for alleged war crimes, crimes against humanity, and genocide. Since the arrest warrants were issued, al-Bashir typically travels to non-states parties, who are under no obligation to arrest him. Indeed, Belarus has neither signed nor ratified the Rome Statute. However, he has also visited states partieswho do have an obligation to arrest, including (but not limited to) Chad, Kenya, Djibouti, Malawi, the Democratic Republic of Congo, Jordan, Uganda, and South Africa. Despite the Court’s request to these states parties for cooperationin the arrest of al-Bashir, national governments such as those of Chad, Jordan, and South Africa have refused to comply, using the justification that al-Bashir’s status as head of state provides him with immunity from arrest. This opinion is also promoted by the African Union, which has asked for an advisory opinion from the International Court of Justice on the issue of immunities of heads of state and government within the Rome Statute system.  

The relations between Belarus and Sudan are strengthening in several key areas. Al-Bashir and Belarus’ President, Alexander Lukashenko, signed agreements on ‘friendly relations and cooperation’in 2017 emphasizing dynamic trade and joint projects in the industrial and agricultural sectors. Al-Bashir’s speculated travel to Belarus is for the purpose of finalizing trade deals and enhancing bilateral relations. However, the link between the two countries is long(er)standing. Belarus is a Sudanese armament provider. In 2006, a military cooperation protocolwas signed by the two countries covering training, exchange of experiences, and military science. Belarus has a reputation as an arms exporter to rogue states. Since Belarus is under no legal obligation to cooperate with the ICC, the arrest and surrender of al-Bashir highly unlikely. The high probability that Belarus will ignore the Prosecutor’s request contributes to a culture of impunity and staunch criticism of the Court.  

Inasmuch as states pursue political and economic (self) interests, the UNSC expressed a need for accountability for the atrocious crimes committed in Darfur under the leadership of President Omar al-Bashir at the ICC. The majority of states agree that the gravity of the crimes covered by the Rome Statute are so abhorrent that they are an offence to humankind and should not go unpunished. It is necessary to question the elusiveness of state cooperation in the situation concerning al-Bashir and consider what can be done to facilitate a different, more just outcome. Relying on Belarus is insufficient without the political backing of the UNSC to oblige all member states to enforce their referral and facilitate cooperation by all states to this end.   

Political strategizing for the majority of states requires a balance of hard and soft power; this includes the promotion of international criminal justice and the use of international institutions, which creates a sense of solidarity among Member States. Expectations of behaviour establish trust. The rules-based order in the Rome Statute system contributes to a shared commitment to these goals. The referral of the situation in Sudan to the ICC by the UNSC signals that the perpetration of atrocious crimes is unacceptable, even for states who have neither signed nor ratified the Rome Statute. Appeals to sovereign power, interests, or status as a head of state are irrelevant. This could be a significant moment for the international criminal justice project, but the transfer of political power (UNSC) to legal action (ICC) has been weak and haphazard. The lack of organizational support and state cooperation to see justice done devalues international criminal law and subjects the ICC to a serious legitimacy crisis.  

The lack of credible commitment on the part of the UNSC to enforce this referral, or to provide the necessary political support has undermined (and continues to undermine) the ICC’s ability to see justice done. The UNSC has failed to take measures against states who choose not to execute the arrest warrant, which ought to be an obligation that emanates from the referral itself. The need for the UNSC to take a bigger role in the enforcement of its own resolutions remains an important focal point in the discussion on cooperation more broadly.  

The obsequious attention paid to al-Bashir and his disregard for the indictment by the ICC has led to increasing frustration on the part of those who oppose impunity and demand justice and accountability for the victims in Sudan. The role of civil society is particularly important in this regard. Depending on states such as Belarus to cooperate with the execution of an arrest warrant in the absence of political or legal obligations is fundamentally flawed. How persuasive is a sharp carrot when the states involved have the stick? 

This blogpost and my attendance to the 17thAssembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

Carrots, Sticks, and the ICC: Prospects for Cooperation? Part 1

The third day of the Assembly of States Parties (ASP) to the International Criminal Court (ICC) or ‘Court’ pivoted around the issue of cooperation. A side event was organized by the Institute for Security Studies (ISS) and the Embassy of Ireland titled, “Cooperation with the ICC: What the Security Council and ASP Must Do.” Panelists included Allan Ngari (ISS), Phakiso Mochochoko (Head of the Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor), Matt Cannock (Amnesty International) and H.E. Ambassador Kevin Kelly (Ireland). 

The panelists argued that non-cooperation by states severely limits the effectiveness of the ICC, and the United Nations Security Council (UNSC) and the ASP can do something about it. Matt Cannock explained that a stronger approach to cooperation is needed. The UNSC has referred two situations to the ICC – Darfur (2005) and Libya (2011) – where crimes occurred on the territory of non-States parties to the Rome Statute. In both situations, the UNSC imposed an obligation of cooperation only on the state involved(i.e. Sudan or Libya).[1]For other states who are not party to the Rome Statute, the UNSC has explicitly outlined in its referrals that there are no binding obligations in relation to the Court to cooperate, but also added language “urg[ing]all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor.”[2]Cannock framed this voluntary cooperation obligation under the current regime in terms of the metaphorical ‘carrot and stick.’ He posited that the current approach is ‘more carrot than stick’ and explained that a ‘sharpened carrot’ could yield better results. He explained that this can be achieved through UNSC and UN General Assembly follow-ups to acts of non-cooperation with the ICC. 

Allan Ngari and Matt Cannock both emphasized the need for the UNSC to impose cooperation obligations under all members states of the UN. This would be consistent with the procedure that was taken when the Council established the ad hoctribunals for the former Yugoslavia and Rwanda. The ISS provided a document at the side-event, which outlines this and other key recommendations.[3]Regarding the UNSC, some specific examples include: (1) the Council should impose cooperation obligations on all states; (2) not restrict or bar UN funding for investigations and prosecutions; (3) not seek to limit the jurisdiction of the ICC over persons relevant to the situation; and (4) it should adopt explicit language lifting any immunities that might hinder ICC prosecution, especially those involving state officials or non-states parties. With respect to the ASP, it is recommended that findings of non-cooperation be routinely responded to, and the ASP should ask the UNSC and the UN General Assembly to take appropriate measures. Both Ngari and Cannock described a relationship between the UNSC and ICC based on mutual reinforcement in order to achieve the overall goal of enhanced cooperation.     

Phakiso Mochochoko offered a different perspective and confronted the pervasive challenges that stem from the ICC-UNSC dichotomy. Focusing on cooperation with respect to arrests, he was less optimistic. The investigation and prosecution stages require little (if anything) from the UNSC. On the other hand, arrests require assistance, particularly when the referral was made by the Council. Mochochoko explained that the Prosecutor has begged and pleaded to the UNSC for help, but nothing happens. He argued that the fundamental difficulty lies with the often-cited issue that permanent members United States, China, and Russia are not members orsupporters of the ICC. This combative environment makes cooperation unlikely. While the UNSC referred the situations in Sudan and Libya to the Court, these referrals came with no substantive political support or backing. As a result, Mochochoko posited that the UNSC referrals are a ‘poison chalice,’ and the source of the attacks that the ICC is facing (i.e. effectiveness, legitimacy). Therefore, opposition from permanent members of the UNSC towards the ICC is good, since referrals will not be made. This way, the ICC can go about its work on its own, without having to rely on the UNSC.  

This blogpost and my attendance to the 17thAssembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.


[1]See: Operative paragraph 2, UN Security Council Resolution 1593 (2005); Operative paragraph 5, UN Security Council Resolution 1970 (2011).

[2]International Criminal Court, Assembly of States Parties, Report of the Bureau on non-cooperation, ICC-ASP/17/31 (28 November 2018) available at: https://asp.icc-cpi.int/iccdocs/asp_docs/ASP17/ICC-ASP-17-31-ENG.pdf, p. 23. Regarding the obligation of states parties see: Rome Statute of the International Criminal Court, A/CONF.183/9 (17 July 1998), Article 89: States Parties are obliged to execute the Court’s pending orders for the arrest and surrender of a person. 

[3]Dapo Akande, “Cooperation with the ICC: What the Security Council and ASP must do,” Institute for Security Studies, (December 2018): www.issafrica.org: this is a preliminary document. The complete ISS report on how the Security Council can promote state cooperation with the ICC is forthcoming. 

CCIL 2018: “The Role of International Criminal Law and the ICC in Responding to the Alleged Crimes Perpetrated Against the Rohingya”

On November 1 and 2, 2018, the Canadian Council on International Law (CCIL) held its annual conference in Ottawa, Canada. This conference is touted as one of the premier international law conferences in the world, bringing together scholars and practitioners from across Canada, the United States and Europe. This year’s topic was “International Law at the Boundaries,” which recognized the role of non-state actors and ideas that seek to push international law to its limits.

One particular panel discussed three important, and even novel, issues within international criminal law: (1) jurisdiction over crimes committed by a non-state party; (2) sexual and gender-based violence; and (3) the role of social media in contributing to these crimes. “The Role of International Criminal Law and the International Criminal Court (ICC) in Responding to the Alleged Crimes Perpetrated against the Rohingya,” examined the ongoing situation in Myanmar and the ICC’s role in holding perpetrators of international crimes accountable. Fannie Lafontaine of Laval University’s Faculty of Law and the Canadian Partnership for International Justice chaired the panel of three speakers: Payam Akhavan of McGill University’s Faculty of Law, Valerie Oosterveld of Western University’s Faculty of Law, and Kyle Matthews of the Montreal Institute for Genocide and Human Rights Studies.

Akhavan discussed the ICC’s jurisdiction over the crimes committed against the Rohingya. This has been an area that has required some thought because Myanmar is not a party to the Rome Statute of the ICC, and therefore the Court does not have jurisdiction over crimes committed on its territory unless a referral by the United Nations Security Council is made (which has not happened yet and has been suggested to be unlikely). Akhavan highlighted how the ICC’s jurisdiction is currently being established through the crime of forced deportation as an underlying act of the crime against humanity. Forced deportation involves the crossing of international borders, and because the act of deporting the Rohingya ended on the territory of a state that is a party to the Rome Statute—Bangladesh—the Court has jurisdiction to try those responsible for forcing the Rohingya into Bangladesh.

Oosterveld ended the panel with a discussion of sexual and gender-based violence in the context of the Rohingya. She discussed the many ways that Rohingya women and girls are targeted and then humiliated through public gang-rapes to promote terror, and even ‘branded’ by their perpetrators biting them. Men and boys suffered similar treatment in detention from their captors trying to gain information.

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Ethics and the Law: Journalists and International Criminal Tribunals (part 2)

LONDON – Can journalists give evidence at international criminal trials without compromising their objectivity? What is the probative value of journalistic evidence? What does it feel like to be cross-examined by Slobodan Milošević?

These were some of the questions discussed at the event Ethics and the Law: Journalists and International Criminal Tribunals hosted on 25 October at London’s Frontline Club. The fourth of a series of events on “Ethics and the News”, the panel discussion was organised by the Ethical Journalism Network and Global Rights Compliance, and chaired by Channel 4 Head of News and Current Affairs Dorothy Byrne.

In part 1 of this post, we described how journalists recounted their experience of testifying at high-profile international criminal trials. At the same event, legal practitioners also gave their thoughts on the role of journalists in such trials.

The lawyers’ view

The next speaker is the Rt Hon. Lord Justice Adrian Fulford, who was elected to serve as a judge before the ICC for a term of 9 years. Tapping into his wealth of experience, Sir Adrian acknowledges the shortcomings of international justice: trials are too lengthy, trials are too costly, not enough cases are brought before the ICC. The current system of international criminal trials, he says, is an intimidating slow-moving machine, something akin to “a Gilbert & Sullivan operetto” taking place in large surroundings, and could benefit from more imaginative ways of giving evidence to make the process less intimidating for witnesses. It is increasingly difficult to get people to testify, Sir Adrien says, but journalists tend to make good witnesses, as the essence of their role is to bear witness to events.

Wayne Jordash QC, of Global Rights Compliance, is more ambivalent: to him, journalistic evidence does not have any heightened probative value. While Jordash emphasizes the role of journalists as watchdogs as crucial (perhaps now more than ever), and agrees that photo and video evidence is critical, he suggests that journalists’ additional testimony does not have a huge bearing on a case. However, journalism is crucial in another, often ignored way: in pushing the information out and catching society’s attention. Through their reporting on human rights violations in the news, war journalists help keep human rights violations in the news cycle – this, Jordash says, helps mount and maintain support, which can in turn lead to better funding to combat such violations.

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