The IBA’s response to the war in Ukraine
Pro Bono Efforts Harness the Expertise of Commercial Lawyers to Address Crimes Against Humanity Directed at Women
Hogan Lovells International LLP, London
Securing pro bono opportunities which effectively use the skill set of specialist commercial groups can be challenging. Commercial lawyers will often be called upon to work in access to justice clinics, advising on housing or immigration matters, which is important, but does not harness their specific expertise. If we are to address some of the underlying commercial issues that lie behind some of the world’s intractable problems, from climate change to international human rights, it is important to ensure that these lawyers are called upon. Global commercial law firms can have considerable impact if issues are approached from a global perspective.
In an example of this happening in real time, the unique expertise of our global trade and sanction practice and our international litigation practice has been empowered to consider the financing, and ultimately the accountability, for human rights violations committed by non-state actors. This is having a powerful effect on the accountability for crimes against humanity which are directed at women.
The International Day for the Elimination of Sexual Violence in Conflict is a day for the international community to listen to survivors, better understand their needs and commit to improving prevention, judicial and reparative mechanisms. As Secretary-General Guterres stated this year: ‘We cannot allow this already underreported crime to slip further into the shadows. Perpetrators must be punished’.1
Published to commemorate the day, our Discussion Paper, ‘Finance for Restorative Justice: Volume II’, is our challenge for the international community to no longer allow the financiers of sexual violence in conflict to lurk in the shadows and to also address survivors’ needs for reparations.
The Paper explores states’ moral and legal responsibility to guarantee financial reparations for victims of sexual violence in conflict. This conduct constitutes crimes against humanity and terrorism. Endorsed by 2018 Nobel Laureates, Dr Denis Mukwege and Nadia Murad, who are the founders of the Global Survivors Fund, our work is the result of years of collaboration with experts from Redress, Goldsmith Chambers and invaluable insights from our global Trade and Sanctions team.
The Discussion Paper stems from the work of our global litigation practice in UK, Australia and Germany who represent Yazidi survivors of violence perpetrated by Islamic State of Iraq and the Levant (ISIL) foreign fighters, who have been unable to secure an effective remedy despite the horrendous crimes committed against them. With the exception of a few instances of criminal prosecutions, for example in Germany, the vast majority of survivors have not been able to access justice.
The acts of ISIL were recognised as extreme. These acts include the ‘ownership’ of women in sexual servitude; enshrinement of widespread and repeated rape, including of pre-pubescent females in the ISIL regime; and an established slave trade with market places and viewing rooms. The list goes on. These despicable acts no longer make the headlines, but sexual violence continues to be used as a weapon by ISIL and other equally brutal regimes in conflicts around the world.
Whilst these crimes have slipped into the shadows, Yazidi victims continue to suffer from the effects of ISIL violence. We are aware that perpetrators of sexual violence in conflict and their ‘organisations’ are financed through the global financial system, which is the reason we have been advocating since the publication of our first report last year (‘Finance for Restorative Justice’)2 for frozen assets and financial penalties imposed for breaches of sanctions. Additionally, we believe counter-terrorist financing legislation should be used to fund reparations for victims of sexual violence in conflict.
Too often reparations do not reach those who are entitled to them, as the perpetrators are often indigent, the states responsible for reparations do not have sufficient resources, or donations from the international community are not commensurate with the scale of the crisis. It is our contention that the global counter-terrorist financing and financial sanctions frameworks can be used to fill this gap. There are significant sums which accrue to domestic treasuries every year for breaches of sanctions regimes, and none of that reaches the victims themselves.
The international community has also been under an obligation to freeze assets of individuals and entities supporting ISIL since the Security Council unanimously passed resolution 2253 (2015). This resolution reaffirmed the obligation that all states must take steps to ‘prevent and suppress the financing of terrorist acts and refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts’.
In the UK, we are aware that over £100,000 of ISIL assets remain frozen. In August 2020, the United States State Department seized ‘millions of dollars, over 300 cryptocurrency accounts all related to the criminal enterprise’ of ISIL and other groups. However, despite numerous designations and orders to freeze assets and confiscate sums, there is little accountability or transparency around the effectiveness of Member State actions. There is still questions over what will happen to those assets going forward or whether they will be frozen perpetually, despite the immediate need for financial support for victims of ISIL and other entities and individuals who commit gross human rights violations.
To give full effect to the rights of victims to reparations an obligation must extend to financing those reparations, as confirmed by the authorising effect of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (‘Basic Principles’). The primary obligation is owed by the perpetrators and states where the offending conduct has occurred. However, all states have a duty to guarantee reparations where there is a nexus to the offences, particularly where the state has frozen assets or has issued fines to entities for breaches of counter-terrorist financing regimes or sanctions regimes which have been enacted as a result of human rights breaches. This is especially pertinent if, as is the case, those monies are then used to fund domestic budgets rather than assisting victims.
With the support of the expertise of specialist litigation and financial crime experts, we are now building the advocacy platform to take this forward with state members of the Global Counter-Terrorism Forum and Global Coalition against Da’esh. If there are sanctions experts willing to engage on a pro bono basis, the author would invite readers to be in touch.
1 United Nations, International Day for the Elimination of Sexual Violence in Conflict, Secretary General’s Message (19 June 2021), available at www.un.org/en/observances/end-sexual-violence-in-conflict-day/messages.
2 Hogan Lovells, ‘Finance for Restorative Justice’ (January 2020), available at www.hoganlovells.com/en/news/hogan-lovells-calls-for-reparations-for-victims-of-sexual-violence-in-conflict; and ‘Finance for Restorative Justice Volume II’ (June 2021), available at www.hoganlovells.com/en/news/hogan-lovells-launches-second-restorative-justice-report-for-victims-of-sexual-violence-in-conflict.