International rule of law: historic firsts in ICC’s conviction of Dominic Ongwen
JENNIFER VENIS, IBA MULTIMEDIA JOURNALIST
In early February, the International Criminal Court (ICC) convicted former Lord’s Resistance Army (LRA) commander Dominic Ongwen of 61 counts of war crimes and crimes against humanity committed in northern Uganda between July 2002 and December 2005.
Nineteen of the counts were for sexual and gender-based crimes, with the ruling marking the first conviction for forced pregnancy as a war crime at any international court.
Danya Chaikel, Secretary of the IBA War Crimes Committee and an international criminal lawyer in The Hague, says this is ‘one of the most pioneering ICC cases to date, for recognising the dignity of victims of sexual and gender-based crimes and the breadth of their suffering, and also for underscoring the inalienable fair trial and human rights of defendants’.
Danielle Hites, a legal advisor at the Global Justice Center, was pleased the Court didn’t just charge sexual and gendered crimes under the catch-all category of sexual violence.
‘There were also charges of enslavement in general, torture and outrage upon personal dignity. It was an important distinction’, she says. ‘They’re recognising that sexual and gender-based violence can’t just be siloed into one category, there are gendered elements to all of these crimes and they can be committed in gendered ways and often are.’
But recognising the gendered perpetration of crimes in court is challenging – partially, Hites says, because it is a more specific kind of harm, but also because the legal frameworks for convictions were created to make it more difficult.
Reaching this conviction for forced pregnancy was particularly challenging, as the Court noted, because of the history of its incorporation into the Rome Statute. Hites says ‘there were so many countries that either didn’t want forced pregnancy included in the Statute because they were concerned that their own national laws on reproductive autonomy would be implicated, or they felt it was already covered by unlawful detention or rape’.
Because of the resulting narrow definition and ‘ridiculous’ high standards for conviction, Hites says, there are ‘so many barriers to access to justice’.
The defence was also a first: Ongwen himself had been victimised by the LRA, forced to become a child soldier and his lawyers argued defences of duress and mental illness. Chaikel notes that while the judges ultimately rejected this argument, ‘they might still consider his abduction at a young age and his victimhood as a mitigating factor at sentencing’.
For Chaikel, ‘because of these confronting aspects of the case and the ways they were adjudicated during the trial phase, we are forced to think about the humanity of both the victims and the defendants on a much deeper level – something that I think is desperately needed in international criminal trials’.
Some local community leaders believed that Ongwen should face ‘mato oput’, an Acholi traditional justice mechanism. According to Sarah Kasande, Head of Office of the International Center for Transitional Justice (ICTJ) in Uganda, this is partly because of ‘the failure of the state to protect him and then to acknowledge that it’s the lack of protection that contributed to his victimisation and subsequent involvement in the commission of crimes’.
As the ICC operates in a different space and has a different mandate and resources, ‘it could not displace local accountability processes, but complement them’, says Kasande. ‘Due to the different mandate and resources, the ICC process was able to take off and proceed while the local or national justice processes couldn’t because of lack of resources or political will.’
She sees no reason why the different systems cannot exist in parallel. Criminal accountability is fundamental but shouldn’t be the only approach, she says.
Kasande calls for a process that prioritises an element of reparations for the victims, which restores, repairs and rebuilds, and incorporates elements of prevention.
Ongwen’s lawyer has reportedly confirmed that all charges will be appealed against. For Kasande, if Ongwen’s conviction is upheld, the reparations proceedings offer the ICC an opportunity to set benchmarks for other justice processes by listening to victims and delivering reparations that properly address and resonate with their needs and expectations.
But for the communities whose victimisation is not being addressed by the Court, Kasande says the verdict might only have symbolic significance.
Some victims, she says, should benefit from administrative reparations through the Ugandan National Transitional Justice Policy.
But what’s truly missing, says Kasande, is accountability for alleged violations by state actors. The ICC has previously analysed harms allegedly committed by the Ugandan armed forces (‘UPDF’), which the UPDF leadership has denied.
However, not all of these harms fell within the ICC’s temporal jurisdiction, and where they did, the crimes committed by the LRA were ‘much more numerous and of much higher gravity than alleged crimes committed by the UPDF’, and the ICC therefore began by investigating the LRA, according to Luis Moreno Ocampo, then-Chief Prosecutor of the ICC.
Kasande believes that unless the ICC is retaining evidence of human rights abuses committed by state actors to pursue accountability in future, revealing the investigation’s findings could create impetus for accountability at the domestic level.
Header pic: Shutterstock.com / Mike Chappazo
IBAHRI reaffirms commitment to addressing the gendered nature of law
The IBA’s Human Rights Institute (IBAHRI) has passed a Resolution to reaffirm its commitment to address discrimination against women in law, legal systems and legal practice.
The IBAHRI Council Resolution on Addressing Discrimination against Women in Law, in Legal Systems and in Legal Practice was published on 8 March 2021 to coincide with International Women’s Day. The Resolution says ‘that over the course of history, the law has been drafted, implemented and enforced in environments that have deliberately excluded women, that these legal processes continue in environments where women are underrepresented, and that this underrepresentation influences the development of the law and politics’.
The Resolution notes that while legal efforts have been made at ‘domestic, regional and international levels’, there is still a way to go to address the fact ‘that the historical, economic, social and political subordinate status of women and girls persists around the world in many forms today’.
The Resolution addresses the different types of discrimination against women and girls, and highlights the need for lawyers worldwide to recognise the importance of continuous, collaborative work to end this discrimination.
Baroness Helena Kennedy QC, IBAHRI Director, commented on the Resolution: ‘Law can be an instrument of oppression, as well a source of rights. It is imperative that we examine all our systems and identify the ways in which law perpetuates stereotypes and myths about women and denies women equality. This resolution from the International Bar Association’s Human Rights Institute sets out the ways in which law fails women and how legal reform can provide remedies. Women’s rights are human rights; a world where our rights are secured equally and where our common humanity is respected will be a world where justice becomes possible.’ Read the full Resolution here.
IBA and IBAHRI disappointed with Vatican decision to deny blessings for same-sex unions
The IBA and the IBA’s Human Rights Institute (IBAHRI) have expressed concern at the decision of the Holy See to deny the conferring of blessings on same-sex unions on 15 March 2021. The Holy See is the universal government of the Catholic Church. In a statement, the IBA and IBAHRI urged the Holy See to reconsider this decision and reopen discussion on the matter in order to eliminate discrimination and the outlawing of homosexuality in certain jurisdictions.
Representatives from the IBA and IBAHRI had previously met with Cardinal Pietro Parolin, Vatican Secretary of State, on 5 April 2019, in order to seek Pope Francis’ aid in decriminalising homosexuality. Cardinal Parolin agreed to update Pope Francis on the discussion to further the dialogue regarding the Catholic Church and homosexuality.
In response to the decision by the Holy See, IBAHRI Co-Chair the Hon Michael Kirby AC CMG said: ‘It is most regrettable that we were not afforded the opportunity to converse with Pope Francis or further with Cardinal Parolin following our meeting in 2019. There are still many issues in need of discussion concerning global law reform to address the challenges of ongoing violence and discrimination against global LGBTQI+ communities. The “negative” response in the responsum will make it infinitely more difficult to pressure or persuade states to refrain from criminalising homosexuality and embrace meaningful reform.’ Read the full statement here.
IBAHRI leads training in India and scoping mission in Cameroon
In March, the IBA’s Human Rights Institute (IBAHRI) and the Bar Human Rights Committee led a training programme on statelessness for lawyers in Assam, to help build capacity for appealing rejection notices from the National Register of Citizens. The virtual training programme was attended by 35 lawyers in India and covered topics such as citizenship and the international law prohibiting statelessness. The aim of the training was to build capacity of the lawyers to take forward appeals on behalf of citizens rejected from the National Register of Citizens. The IBAHRI brought on Sir Nicholas Blake and Amanda Weston QC as experts to train the lawyers.
The IBAHRI is currently leading a virtual scoping mission in Cameroon and is delivering recommendations on how to better harmonise the country’s bijural system. The IBAHRI has been awarded funding from the British High Commission in Cameroon to undertake this mission. It will be led by the Hon Bruce Houlder QC and supported by IBAHRI Programme Lawyer Yassin Osman. They have met with officials in Cameroon to understand the key issues and will submit a report to the British High Commission detailing recommendations for harmonisation, to be presented to the Ministry of Justice at a future date.
IBAHRI issues oral statements on Iran, Venezuela and Belarus
The IBA’s Human Rights Institute (IBAHRI) submitted several oral statements to the 46th Session of the UN Human Rights Council in March.
On 9 March, Francesca Restifo, Senior Human Rights Advisor and UN Representative, delivered a statement regarding Iran. This highlighted violations of fair trial guarantees, the cases of lawyers Nasrin Sotoudeh and Amirsalar Davoodi and the denial of access to a lawyer of one’s own choosing, as well as the recent application of the death penalty.
Restifo’s statement on 10 March focussed on the lack of judicial independence in Venezuela and the IBAHRI’s continued work on the case of Judge Maria Lourdes Afiuni.
On 16 March, Restifo delivered a statement on Belarus, emphasising serious concerns related to the country’s lack of judicial independence, the disproportionate use of force by security forces against peaceful protestors and their arbitrary arrest.
IBAHRI Co-Chair speaks at UN Congress session on UN Basic Principles
On 12 March, the IBA’s Human Rights Institute (IBAHRI) Co-Chair, the Hon Michael Kirby AC CMG, spoke on behalf of the IBAHRI at a side event during the 14th UN Congress on Crime Prevention and Criminal Justice.
The event commemorated the 30th Anniversary of the UN Basic Principles and called for the promotion of the Principles. The event was co-organised by the International Association of Lawyers and the Japanese Federation of Bar Associations.
The session was moderated by Yasushi Higashizawa, Co-Chair of the Human Rights Section at LawAsia, who provided short Japanese translations of the English language contributions of the panel.
During the session, the significance of converting the Principles into a convention and hard law was highlighted, and it was noted that a convention is currently being drafted by the Council of Europe. The necessity of including a specific reference in the UN Principles to the protection of bar associations and law societies was another point raised. A number of speakers mentioned the way in which lockdowns implemented as a result of the Covid-19 pandemic have been used by oppressive states to harm bar associations.
More information on the 14th UN Congress on Crime Prevention and Criminal Justice can be found here.
Podcast on China and the Uighurs now available
A new podcast on the investigation of genocide allegations in China is now available. The Chinese government has been accused of perpetrating genocide against the Uighur Muslims in Xinjiang province. There have been reports of abuses intended to eradicate religion and culture in the region, including large-scale detention camps, sterilisation programmes, forced labour and widespread surveillance.
The podcast considers what measures the international community should be taking, especially as China has denied the allegations, claiming its policies are solely focused on tackling terrorism and religious extremism, and providing re-education. Canada, the Netherlands and the United States have passed motions identifying the persecution of the Uighurs as genocide, following a global debate on how to respond to the situation in Xinjiang, as well as a renewed focus on how to address the crime of genocide itself.
The speakers on the podcast are:
- Rahima Mahmut, Senior Executive Member, Uighur Congress
- Jahaan Pittalwala, Research Analyst, Global Centre for the Responsibility to Protect
- The Honourable Irwin Cotler, former Attorney General of Canada
- Lisa Nandy, UK Shadow Secretary of State for Foreign and Commonwealth Affairs
- Baroness Helena Kennedy QC, Director, International Bar Association's Human Rights Institute
- Sir Iain Duncan Smith, former leader, UK Conservative Party
- Aldo Zammit Borda, Head of Research and Investigations, Uighur Tribunal
- Juliette Paauwe, Senior Research Analyst, Global Centre for the Responsibility to Protect
- Mark Ellis, Executive Director, International Bar Association
Indian agricultural reforms trouble both lawyers and farmers
In late March, farmers in India held a nationwide strike, the latest protest against three controversial farming laws introduced in September 2020.
Supported by a number of other unions, the strike marks the four-month anniversary of the beginning of large-scale protests against the laws. Since then, tens of thousands of farmers have demonstrated against laws that critics warn will destroy the livelihoods of hundreds of millions in India.
The three farm acts seek to reform India’s agricultural sector. The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act permits farmers to sell outside of state-regulated markets. The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act sets mechanisms for farmers’ contracts with companies. And the Essential Commodities (Amendment) Act deregulates a number of staple foods.
Previously, the government set a minimum support price (MSP) at which they would guarantee the purchase of farm products. That acted as a type of safety net, albeit one riddled with issues that kept farmers impoverished, deeply in debt and facing a perennial suicide crisis.
While more than half of the country is employed in agriculture, in 2019 the sector contributed just 15 per cent to India’s gross domestic product, leaving farmers less powerful than ever.
India’s Prime Minister Narendra Modi argues that privatisation is the key to improving the lot of farmers. But many farmers and advocates are concerned the three laws will benefit major agribusiness at a steep cost to small farmers.
While economists, legal experts and the farmers themselves agree reform is needed, there remains division over the likelihood that these particular laws will deliver such improvements.
Some have lauded the acts as a long overdue effort to open markets. Others have raised concerns over the lack of oversight, the process by which the laws were passed and their sweeping legal protections for companies.
Negotiations between Indian central ministers and farmer representatives have yielded little progress, with farmers demanding the full revocation of the laws.
Ramesh Vaidyanathan is Vice-Chair of the IBA Asia Pacific Regional Forum and Founder and Managing Partner of Advaya Legal, Mumbai. He’s unsure if the laws will be revoked, but ‘the outcome, whatever it is, will be achieved through political means rather than legal means’.
He argues that the laws were badly needed. ‘There is considerable merit in the government assertion that the farm laws will transform the agriculture sector and raise farmers’ income’, he says. ‘It is expected that the new laws will make farmers independent of government-controlled markets and fetch them a better price for their produce.’
But other legal experts have come out on the side of the demonstrators.
In December 2020, the Bar Council of Delhi sent a letter to Modi, calling for a revocation of the laws. It highlighted how the laws could affect the legal community.
Among the most controversial provisions of the price assurance law is Section 19. This says that ‘no civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any dispute which a Sub-Divisional Authority or the Appellate Authority is empowered by or under this Act to decide and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any rules made thereunder’.
The provision appears to defy the constitutional right to judicial independence.
The Bar Council warned that ‘the mindset behind the move to oust the jurisdiction of civil courts and transfer of power to bureaucrats, acting as executive officers, to decide disputes between the traders and the farmers, will lead to corruption’.
Meanwhile, Kaushik Basu, a former chief economist at the World Bank, wrote that ‘with their uncanny grassroots intuition, the farmers had realized something that many economists, including me, had missed. If a corporation violates a contract with a farmer, the new laws prohibit the farmer from seeking redress in a regular court’.
He added that if the Indian government dismantles the MSP system rather than reforming it, farmers will be forced to sell their products to four or five big agribusiness corporations.
The laws were passed with scant consultation, which some argue is in violation of India’s laws and the United Nations Declaration on the Rights of Peasants, to which India is a party. Petitions have been filed with the Indian Supreme Court to challenge the constitutional validity of the laws.
Speaking at the UN Human Rights Council in mid-March, Darshan Pal, leader of Samyukt Kisan Morcha – a coalition of farmers’ unions – noted that the Declaration ‘insists that the country must consult the farmers before laws and policies are enacted’.
Warning that removing the MSP alongside access to courts cannot improve the situation of farmers, Pal asked the UN to urge the Indian government to abide by the Declaration, repeal the laws and begin consultations on reforms that are friendly to both farmers and the environment.
Image: Shutterstock.com / PradeepGaurs