World Without Genocide Fellows Visit Burma
By Victoria Dutcher and Kenneth Granle
Benjamin B. Ferencz Fellows in Human Rights and Law
We arrived in Yangon on January 6 and immediately began meeting with representatives from local human rights organizations and other non-profits. Our goal was to learn about their work in Myanmar and any particular struggles they may have faced in recent years. We also came to set up an International Student Dialogue in Language and law and lay the groundwork for a workshop on International Criminal Tribunals in October. Our first meeting was with two representatives from Karen Human Rights Group (KHRG). Their organization brings to the forefront many issues that face ethnic minorities in developing countries, such as land confiscation for natural resources. The two representatives shared with us some of their publications that chronicle many of the issues that the Karen and other groups have faced in recent years. KHRG also trains village leaders and community members in human rights so that they can share their knowledge with the entire indigenous population.
Our next meeting was with Dr. Helen Gunthrope of BusinessKind. Her non-profit provides business training to women in rural areas, either to teach them skills in a particular trade, or to give the basic building blocks of running a successful business. She explained that a stable democracy and stable business infrastructure go hand in hand. Dr. Gunthrope and her team are optimistic for the future of Myanmar, especially as more and more mid-sized international businesses come to the country. If corporations are willing to invest their time and money into a new international venture, and the people of that country see the sustainable benefit, both will prosper. She anticipates rapid change as the focus transfers from politics to business.
We visited the US Consulate and Embassy. We learned about many of the consular functions and the particular difficulties of maintaining such an office in a country that until recently was under trade sanctions from the US. The relationship between the two countries has been better as of late, and there were many Burmese who were there in hopes of receiving documents for travel to the United States.
In anticipation of our return to Yangon next fall, we toured the American Center to see its facilities and meet several of the staff members. The center has an extensive English library and offers language courses ranging from beginner to TOEFL preparation, the required English-language proficiency exam for academic study in English. There are also several groups that meet there, including a legal studies club and an American culture club. We also met a man from iPace who regularly conducts human rights programming. He and the rest of the people we met at the American Center are excited for the International Student dialogue that we are establishing as well as the workshop coming – in October.
Post Two- Fellows visit Chiang Mai, Thailand
After our time in Yangon, we traveled to Chiang Mai in the north of Thailand. Our first meeting was at the Burma Study Center. This small nonprofit caters to Burmese expatriates living in Chiang Mai and the surrounding area. The center offers English classes from beginner to TOEFL preparation. The center also serves as a hub for those interested in Burmese culture, history, and current events. When asked about his view on the current political situation in Burma, a staff member at the center said that he could already see change coming, but it was slow rather than swift. The Burma Study Center also publishes books, magazines, and films that chronicle the struggles that Burmese refugees have recently faced to keep these issues from falling into the footnotes of history.
Our next meeting was with the Chiang Mai International Rotary Club. This group was mostly American expats living in Thailand, though there were several visitors from Rotary clubs outside of Thailand. The Rotarians shared with us some of their fundraising efforts and the humanitarian work they do in rural communities. Two initiatives of note were an eye clinic and youth swimming lessons. According to one of the Rotarians, drowning is the number one cause of death for Thai children under the age of seven in Thailand. Thanks to the intervention of the Rotarians, they have seen a considerable drop in such fatalities over the past few years.
Chiang Mai University (CMU) has a Model UN club that welcomed us to give a presentation after class one day. We shared information about the history of international human rights law, our organization, and plans we have for the future. Most of the students are studying political science and international affairs, and they were very excited about the upcoming dialogue exchange with Mitchell Hamline. The students asked some intriguing questions about international affairs, especially the current refugee crisis in Europe. We could see that they were not only well informed but also very eager to start their own careers in international NGOs.
Post Three- Fellows visit Bangkok
After arriving in Bangkok, we met with The Rotary Club of Bangkok, the country’s oldest Rotary club. The club consisted of Thai nationals and expatriates from countries such as Germany, France, India, and the United States. They were kind enough to give us a few minutes to speak about our work and the mission of World Without Genocide. After lunch, several members gave us their contact information and we look forward to staying in touch with them.
We also met a member of the Peace Corps who was visiting from a small village. She explained how she spends much of her time on curriculum development and instructor training to prepare the locals to run the school once she leaves. She also informed us that sex education was recently introduced into the national curriculum because of the increasing prevalence of HIV/AIDS.
Our final meeting was at the Peace Center at Chulalongkorn University, an academic program run by Rotary International. This is a three-month certificate program in peace and conflict resolution studies designed for people working in the human rights field. The program is open to qualified applicants from around the world. For more information, visit here. The newest cohort of Peace Fellows had just started their studies and we joined them in class for several hours. The lectures focused on the effectiveness of security resolutions and the notion of “Do No Harm” humanitarian work. After class, we met with some students who were taking time from their careers in this field to participate in this program.
The International Criminal Court
World Without Genocide Fellows attend International Criminal Court meetings
After the Holocaust, the Allied nations prosecuted Nazis at the Nuremberg Trials in 1945. Those trials, the first-ever practice of international justice, created a dream for many human rights leaders of a permanent court to adjudicate perpetrators of genocide and other atrocity crimes. In 2002,that dream became a reality when the International Criminal Court began operating in The Hague, Netherlands.
The Court’s jurisdiction is the prosecution of individuals for genocide, war crimes, crimes against humanity, and aggression perpetrated since 2002.
There are now 123 nations that have ratified their support for the Court, and although the United States is not yet one of those ratifying nations, the US supports the work of the Court in significant ways.
Each winter, representatives of the states parties, as the nations are called, and other entities that are involved with the Court meet to discuss and decide management and legislative issues about the Court.
This year’s Assembly of States Parties will be held at the World Forum in The Hague, November 18-26.
For the first time, five Benjamin B. Ferencz Fellows in Human Rights and Law from World Without Genocide will participate in these meetings as delegates with AMICC, the American NGO Coalition for the International Criminal Court. The Fellows are law students Guled Ibrahim, Michelle Johnson, Megan Manion, Alejandra Sanchez, and Sarah Schmidt.
In addition, two former associates from World Without Genocide, Christie Nicoson (former Program and Operations Director) and James Petermeier, J.D. (former research associate)will attend with the delegation of the Coalition for the International Criminal Court. Both Christie and James are current master’s degree students at the Rotary Peace Center, Uppsala University, Sweden.
Each of our delegates will share their experiences on this site during the meeting. Please check their daily posts about this important international meeting.
Day One – Christie Nicoson, World Without Genocide Associate
The International Criminal Court’s 14th Assembly of States Parties began today with an emphasis on the challenges and opportunities that lie ahead. In the coming year, the Court anticipates an unprecedented workload: four trials, involving ten accused persons, and further examinations into nine situations.
The Assembly welcomed state representatives, NGO members, and observers who contribute in many ways to the mandate of the Court. In collaboration with member states, these supporters are crucial to the international community’s pursuit of justice around the world. Fatou Bensouda, the Prosecutor of the Court, reminded members of the Assembly that their support is critical and that “the hopes and expectations of victims of atrocity crimes must weigh heavily on our collective conscience, and compel us to stay ever committed to the cause of international criminal justice.”
Day Two – Sarah Schmidt, Benjamin B. Ferencz Fellow in Human Rights and Law
The ASP 14 convening continued on Thursday with the Coalition for the International Criminal Court holding a briefing in which ICC Chief Prosecutor Fatou Bensouda addressed the room in a question and answer session. She emphasized that her office is always open to anyone and she welcomes inquiries by anyone at any time.
The large morning session continued the General Debate, during which a number of states’ representatives stressed the need for greater cooperation with the ICC, increased
complementarity within domestic laws, the importance of the universality of the Court, and the ongoing struggle against impunity that must be fought by all states.
Thursday afternoon saw the first side sessions of the convening on the following topics: the place of victims in national procedures and the ICC; cooperation with the Court; the Justice Rapid Response’s introduction of its International Deployment Fund to strengthen investigational capacity; complementarity in Africa; the Multilateral Treaty for Mutual Assistance initiative; and digital evidence.
Capping off the day was another large plenary session comprised of a two-panel discussion on complementarity in regard to gender-based violence and crimes and victim empowerment. The panelists included Chief Prosecutor Bensouda, Swedish Minister of Culture and Democracy Alice Bah Kuhnke, the Attorney Generals of Guatemala and Botswana, the Director of Prosecutors in Uganda, the founder of Women’s Initiatives for Gender Justice Brigid Inder, and Irene Khan, Director of the International Development Law Organization.
Day Three – James Petermeier, J.D., World Without Genocide Associate
On day three of the International Criminal Court’s 14th Assembly of States Parties, state representatives discussed the issue of voluntary cooperation agreements between the Court and member states. Specifically, the discussion concluded that states must work toward greater cooperation in two main areas: the enforcement of ICC sentences and the relocation and protection of witnesses. State delegates addressed what more needs to be done to bolster these voluntary agreements. Suggestions ranged from state hosted
conferences and seminars to increasing the number of states that have established these voluntary agreements.
During one of the day’s breakout sessions, World Without Genocide associates listened as ICC President Judge Silvia Fernández de Gurmendi and Director of the War Crimes Research Office at Washington College of Law at American University Susana SáCouto discussed possible amendments to the ICC’s pretrial confirmation of charges process. The two examined whether it is more effective to strengthen the process by lengthening or expediting the pretrial confirmation process.
Day three closed with an unusual session in which the Assembly allowed the countries of South Africa and Kenya to discuss several grievances that they wished to express to the Court. These grievances revolved around the Court’s interpretation of key provisions of the Rome Statute.
Extending Justice: The International Criminal Court Beyond The Hague
Reflection by Christie Nicoson, World Without Genocide Associate
The International Criminal Court is one of today’s most successful examples of broad cooperation between countries. To date, 123 countries have signed the Rome Statute, making them a state party to the Court. They have joined a powerful network of countries dedicated to justice, a global community committed to holding criminals accountable.
To some, the Court seems lofty – an impossibly high ideal of prosecuting the most heinous crimes in a place far removed from where most of these crimes are committed. The
crimes, criminals, victims, witnesses, and evidence are scattered around the world; the Court is in The Hague, in the Netherlands.
At the 14th Assembly of States Parties, members, supporting countries, and members of civil society sought to close this gap. It has begun a shift toward a greater presence in the field.
A new approach is changing the way the Court operates. The ICC Registry is working to build a meaningful presence in the field by reaching out to the communities it serves to build trust, search for justice, and build lasting relationships.
This means establishing field offices in many locations around the world. The ICC works with local partners and communities to create a presence that is mutually beneficial. They use the Internet, social media, radio broadcasts – the media that best serve local populations to spread the news about prosecutions and improve the visibility of justice. They conduct interviews and collect evidence to build strong cases. Fieldwork brings the Court to the people.
When the Court began, it was isolated in The Hague. Today, although the Court remains headquartered in the Netherlands, it operates with a much wider reach and with field offices in countries around the world. Through this new approach, the Court not only builds stronger cases, it establishes foundations for the rule of law in far reaches of the globe. The Court is already a powerful force for justice. Its field presence will ensure that the Court continues toward its goal of ending impunity and bringing justice to victims.
Day Four – James Petermeier, J.D., World Without Genocide Associate
The first few days of the ICC’s 14th Assembly of State Parties has been an interesting look at the likely concerns of the ASP for the next few years, including the expanding workload of the Court, and the need for cooperation by states in victim protection and sentence enforcement. Only through great cooperation of states will the Court be able to realize its mandate. This is especially true with the world as it is today and as it will be in the future.
The most noteworthy experience I had at the ASP was to sit in on a panel discussing victim reparations. Panelists explained the need to include the victim’s voice during trial. One panelist discussed how allowing victims to tell of their traumatic experiences in the trial can have a healing effect. This healing effect is greatest when the victim feels that his or her testimony leads to justice being served. However, if victims feel that justice has not been served, reliving the traumatizing experiences in court can actually be more traumatizing. A second panelist, a survivors’ advocate, explained how incredibly challenging it can be to represent these survivors. The advocate explained that long before the trail begins, he finds himself without the time or resources necessary to adequately incorporate the survivor’s voice. These challenges include matters as simple as explaining his role in the matter to matters as complicated as properly explaining how the victim’s inclusion will influence reparations.
Given the varying perceptions victims can have regarding their participation, the challenges explained by this advocate lead to the question of whether victims should even be included. On the one hand, early challenges experienced by victims can lead to diminished perceptions of justice and greater re-traumatization in the long run. On the other hand, success after great adversity can lead to an enhanced feeling of justice. While the perceptions of justice are in the eyes of the survivor, perhaps the answer to this question is in the hands of the Assembly. If it is such a feat to include the voices of these victims, perhaps the Assembly should make the rules more flexible to encourage and allow easier inclusion of the victim’s voice.
Day Five – Megan Manion, Benjamin B. Ferencz Fellow in Human Rights and Law
The Assembly of States Parties is the central forum for governance of the International Criminal Court. It also provides a setting for the Court’s participants, advocates, and civil society stakeholders to discuss critical issues facing the Court and their work in relation to it. This year, “gendered legacies” of the International Criminal Court and sexual and gender-based crimes have been a consistent thread throughout the Assembly. To many, this is a long-awaited affirmation of importance of gender justice both in principle and practice.
The gender justice advocates have had a consistent platform to frame the creation of the ICC and advancement of international criminal law as a discipline that has not developed in a vacuum. Its origins and conceptions are necessarily within the larger framework of historical patriarchy and gender bias. It is heartening to note the platform for which these issues have been taken up at ASP 14. Side events have highlighted issues from around the world and have included the foremost experts on law and gender justice. Earlier in the Assembly, we saw a plenary session with experts from around the world, including Madame Prosecutor Fatou Bensouda and her Special Gender Advisor, Brigid Inder of the Women’s Initiatives for Gender Justice. This panel focused on the International Criminal Court’s role in complementing national criminal procedures using sexual and gender- based crimes to highlight the advances and the difficulties of this fundamental principle.
Further sessions deepened delegates’ understanding of gender and the Court through discussions of the misconceptions and biases in prosecution and judging at the International Court, ad hoc tribunals, and national courts. Prosecutor Fatou Bensouda pointed out the advances she seeks within her own office. Her commitment to prosecuting sexual and gender-based violence are just one contribution among the many that are needed. One of her reforms requires that, even at the initial investigation stage, an investigator must justify his or her reasons for not undertaking an investigation of sexual and gender-based crimes. The 14th ASP has not only highlighted the factual failures and successes in domestic courts of member states in redefining sexual and gender-based crimes, but has also critically brought gender mainstreaming, meaning the valuing and analysis of both male and female perspectives and qualities, into functional conversations like the budget to advocate for renewed attention to the equitable appointment of professionals at the Court as envisioned in the Rome Statute.
This is not to say, however, that the work is done. Many delegates have emphasized that we must move beyond gender mainstreaming and the recognition of sexual and gender-based crimes. The Court still fails to undertake “the bold judging” required to challenge ingrained assumptions about the inherently gendered nature of many crimes under its jurisdiction. Additionally, the conversations undertaken by the Court on gender quotas raises questions as to why such fundamental guarantees for all genders within the Rome Statute still require justification. It is clearly a time for great change. There are many opportunities for meaningful reform to dispel the systemic failures of international criminal law and its implications for both women and men.
Louise Chappell, an internationally-renowned expert on gender and the International Criminal Court, notes in her book, which notably launched this week at the 14th ASP, “the Court’s poor record in prosecuting sexual and gender-based crimes reflects continuing legacies and silences of international law and that the Court’s mixed record on gender justice is a risk to its ongoing legitimacy.” The risk noted by Ms. Chappell is one that is being mitigated by the very undertakings we are seeing at this 14th ASP.
*All quotes referencing Ms Louise Chappell’s book, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy, or her remarks made at her book launch.
Day 6 – Guled Ibrahim, Benjamin B. Ferencz Fellow in Human Rights and Law
Today was the 6th day of the Assembly of States Parties conference in The Hague. Unlike the previous days, today was a lot quieter.
As usual, the day started with side events. Today there were three events from 09.00-10.00: NGO Strategy Meeting; Why We Monitor: Engagement, Advocacy and Accountability (co-hosted by RNW Media and OSJI); and Towards the activation of the Kampala Amendments on the crime of aggression (hosted by Liechtenstein).
10.00-11.00 Plenary – Progress report by the Coordinators – Reserved 11.00-12.30 Informal consultations on the omnibus resolution 12:30-13:00 Reserved
13.00-15.00 Complementarity: The situation relating to international crimes and sexual violence in Colombia (co-hosted by the Lawyers without Borders, the Working Group to monitor compliance with Order 092 of 2008 and Order 009 of 2015 of the Constitutional Court of Colombia & CICC); Performance Indicators for the ICC (hosted by the United Kingdom and OSJI); Ecocide law: timely and necessary (hosted by Greenpeace Switzerland); and Cooperation (hosted by Kenya)
13.15-14.45 International Nuremberg Principles Academy (hosted by Germany); Visit to the ICC’s permanent premises.
The afternoon plenary with the President of the ICC and the Chief Prosecutor regarding the reorganization and coordination among the three Court organs was impressive and showed that the President, Chief Prosecutor, and Registrar have done serious work in these areas, particularly in cutting costs to run a more efficient and cooperative Court. The States Parties listening to the session understood why a budget increase is necessary and warranted and the States Parties responses seemed positive.
On Monday, both Kenya and South Africa took to the floor to raise their concerns and complaints with the Assembly.
Kenya asked for an interpretation, or a reaffirmation, that Rule 68 is not retroactive. Rule 68 provides for admission of prior recorded testimony. The issue of retroactivity is
presently under consideration by the Appeals Chamber in the context of recanted testimony by witnesses in the Ruto & Sang case. In the plenary, States Parties raised serious concerns about the independence of the Court if the ASP made a statement on retroactivity since the matter is under consideration by the Court. There were many speakers on the independence issue, including Slovenia, Colombia, Australia, and Canada.
Furthermore, South Africa succeeded in placing on the agenda issues related to Articles 97 and 98. They requested a clarification of the consultative process under Article 97 and wanted an expert panel to look at the relationship of Article 98 with Article 27. In particular, South Africa wanted consideration of whether the immunity obligation under customary international law for a head of state prevailed over a State Party’s Rome Statute obligation to arrest when the head of state is from a non-State Party. South Africa was one of the first speakers in the first plenary session raising these issues and clearly referencing the situation of Sudan’s President Al-Bashir, for whom there is an arrest warrant for genocide, coming to South Africa.
Most of Tuesday was closed meetings for States Parties negotiating multiple issues including those raised by Kenya and South Africa. Kenya’s delegation were present at all events, including the many side events hosted by NGOs. It was clear that Kenya wanted to be present for anything that arose in the sessions.
Clearly, the Kenya actions were the most disruptive and potentially the most damaging to the Court. However, on many levels, the representatives of the States Parties reaffirmed their strong commitment to the Court and to its effectiveness.
Day 7 – Michelle Johnson, Benjamin B. Ferencz Fellow in Human Rights and Law
On day seven of the International Criminal Court’s Assembly of States Parties, the Court Registrar, Herman von Hebel (The Netherlands) met with members of nongovernmental organizations (NGOs) to discuss his office’s work. The revision of the Registry process started two years ago and the implementation begins next year. Von Hebel focused on the
negative implications of the Court’s new budget, including a 20-25% reduction in the workforce and an increased concern for the effectiveness of field offices.
Next, the Working Group on the Budget met to share the draft resolution which was accepted by State Parties. The negotiated resolution provides a 7.1% increase in the Court’s budget for 2016, which many State Parties feel is not enough to permit the Court to fulfill all of its mandates. Due to the lack of funding for 2016, the Court will be unable to fund additional activities, and this will result in halting investigations in Cote d’Ivoire and Libya. The negotiated resolution is now pending adoption by the Assembly.
Capping off the day was an event on preliminary examinations by the Office of the Prosecutor. The Rome Statute provides the Office of the Prosecutor with three distinct roles: preliminary examinations, investigations, and prosecutions. Preliminary examinations are the least understood part of the Office’s work and the earliest stage of proceedings at the Court. The Rome Statute provides far less details on preliminary examinations than it does for investigations and prosecutions.
During 2015, the Office completed two preliminary examinations, in Honduras and Georgia, and opened two new preliminary examinations in Ukraine and Palestine. Work continues in five preliminary examinations, all of which are in different stages. The Iraq/UK conflict is currently in Phase II. Afghanistan, Colombia, Guinea, and Nigeria are situations under Phase III, admissibility stage.
The Office of the Prosecutor representative described the preliminary examination phase as collection of information, not investigation or evidence collection. The function of preliminary examinations is to collect information regarding alleged crimes which are included in the Rome Statute. The Office relies on public sources, government information, and collaborations with NGOs in the field to gather information. The amount and types of information collected varies from one situation to another. Since the collected information is collected from open sources, the credibility and reliability of information is important to consider.
It is important to note that victim protection and intermediaries’ roles are limited in the preliminary investigation stage. The Office of the Prosecutor is not seeking witnesses at this stage. Since a case does not officially exist in this preliminary examination phase, the obligations of the Court are limited. The Office relies on NGOs to manage victim expectations. While many view this as a concern, such as in the case of Georgia, the preliminary investigation lasted seven years. During this time, the victims of this atrocity are unable to receive reparations or victim/witness protection from the ICC. In response to this criticism, the Office of the Prosecutor reminds individuals that the ICC is a court of last resort. The foundation of the Court is complementarity to a State’s national system; the Court is unable to intervene until a case is clearly established. The Office needs a build a solid foundation of admissibility, which takes time.
For additional information regarding the preliminary investigations in 2015, the Office of the Prosecutor publishes an annual Report on Preliminary Examination Activities. The report can be viewed at https://www.icc-cpi.int/iccdocs/otp/OTP-PE-rep-2015-Eng.pdf.
December 1 – Megan Manion
How African States Drove the Creation of the ICC and Why the OTP’s Recent Statements on African Involvement Matter
“As a Gambian and a most proud African, I want to see Africa as most Africans want to see it: a prosperous and more peaceful Continent in which citizen-participation is fostered and the rule of law and human rights are universally respected and advanced.”
African states were leaders in ratification of the Rome Statute. They were, in Prosecutor Fatou Bensouda’s words – “the staunchest advocates of the Court.” Yet, the most consistent criticism of the International Criminal Court is levied from these States – arguing that the Court is too focused on Africa, even ‘biased’ and ‘politicized’.
These tensions flared at the 14th Assembly of States Parties, where South Africa and Kenya demanded attention to the proceedings of Kenyan nationals and examination of the Rules of Procedure and Evidence and the Rome Statute relevant to their respective proceedings and concerns with the Court. The proposals were met with controversy and pushback from other member states, which charged the countries with attempting to influence the independence of the Court. Looming much heavier were the threats of withdrawal from South Africa, reminiscent of Kenya’s calls in 2013.
Chief Prosecutor Fatou Bensouda has been compelled to respond to these high stakes processes and threats. In a recent statement emphasizing the independence of the Court she highlighted the unique history above mentioned. Her solemn purpose – to address any question of independence and resolve to remain steadfast in her pursuit of justice within the ICC framework – no matter the politics of its location. She duly noted that “African countries represent the largest regional bloc of states, which have ratified the Rome Statute.” The bloc continues to refer an unprecedented number of situations and persons to the Court, including Uganda, the Democratic Republic of the Congo, Côte d’Ivoire, Mali, and Central African Republic.
Whether her statements and the Office of the Prosecutor Office will succeed in extinguishing these claims is yet to be seen. The Prosecutor’s cases and processes, however, will remain under close watch to see how the OTP expands out of Africa. Several countries are under preliminary investigation or preliminary examination. Perhaps the filing of charges in Georgia or charges resulting from the preliminary investigations in Israel, Palestine, or the continuation of the case from Libya will help push African states away from these claims of bias and favor.