Female Victims Only? Casting Doubt on the Prosecution of Forced Marriage in Ongwen’s Case

Author: Laura Nacyte*

In December 2016, the trial against Dominic Ongwen, a former commander of Uganda’s rebel Lord’s Resistance Army (LRA), commenced before the Trial Chamber IX of the International Criminal Court (ICC). Remarkably, the defendant is the first person at the ICC to face the charge of forced marriage. The latter was brought in addition to other charges of sexual and gender-based crimes, including rape, sexual slavery, enslavement, and forced pregnancy. Although not a separate offence under the Rome Statute, forced marriage is prosecuted as an ‘other inhumane act’, a crime against humanity, pursuant to Article 7(1)(k). Continue reading

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Witness Protection and the ICT in Bangladesh

Written by: Umme Wara, Lecturer of Law, Jagannath University

The free and truthful participation of witnesses to testify before the Court largely depends on the protective and security measures provided by the concerned Court in any crimes Tribunals as witnesses always have some reasonable fear to be suffered furtherance by the defense party. Since 2010, when Bangladesh started the trial of war criminals the security issue of those who testify became an imperative issue to be determined through relevant national instruments and international experiences. In this regard we will look in to the measures for witness and victim protection in other international and hybrid tribunals as well as the International Crimes (Tribunals) Act (ICT), 1973 which can be referred to the proposed law on victim and witness protection as further edition.

The witness and victim protection and support provisions of international and hybrid criminal tribunals: The Statutes of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the International Criminal Court (ICC), the International Criminal Tribunal for Rwanda (ICTR), the International Tribunal for the former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL), and the Special Tribunal for Lebanon (STL) inserted provisions for victims and witness protection where the Rules of Procedure and Evidence provided policies to implement those provisions of the statutes effectively. For example, Article 68 of the Rome Statute on the International Criminal Court provides that “the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means,” noting that these measures should be implemented in particular in the case of a victim of sexual violence. This statutory provision regarding in camera proceedings is implemented through specific sections of Rules 72, 87, and 88 of the Rules of Procedure and Evidence.

Among other functions, these rules define the appropriate use of in camera proceedings consistent with the statute. They also lay out the in camera procedure to consider relevance or admissibility of evidence related to consent in alleged crimes of sexual violence and the specific procedures, including notice requirements, for requesting in camera proceedings and other available measures.

Provisions guaranteeing the victim and witness protection and applying explicit language conditioning these protective measures on the accused’s right to a fair trial are common to all statutes. For example, the statutory language may specify that the measures cannot be prejudicial or that they must not be inconsistent with the rights of the accused.

Summary of approaches to victim and witness protection in different statutes and Rules of Procedure and Evidence:

In order to properly understand the protections that the ICT affords to witnesses, it is important to look at the approaches taken by the other existing international criminal tribunals.

ECCC approach: is a very broad directive that proceedings shall respect the rights of victims and the accused and that the Court shall take measures to protect victims and witnesses. (See specifically Article 33, and Rules 12, 24, 25, 29, and 60).

ICTY and ICTR approach: has a directive that proceedings shall respect the rights of victims and the accused and that the Court shall take measures to protect victims and witnesses. It also contains an explicit provision that victim and witness protection measures shall be incorporated in the Rules of Procedure and Evidence adopted by the judges. (See specifically Articles 14, 19, and in particular Article 21 of the ICTR statute, Articles 15, 20, and in particular Article 22 of the ICTY statute and Rules 34, 53, 69, 70, 75, 77 and 79,ICTR and ICTY )

SCSL approach: the rights of accused to a fair and public hearing are subject to witness protection measures. It also provides for establishment of Victim and Witness Unit offering protective services. It specifies that consideration should be given to employment of prosecutors and investigators experienced in gender-related crimes. (See specifically Articles 15, 16, and 17 of the statute, and Rules 34, 69, 70, 75, and 79)

STL approach:  the rights of accused to fair and public hearing subject to witness protection measures. It provides for establishment of Victim and Witness Unit offering protective services and for participation of victims in proceedings. It provides for access to victim compensation. There is an explicit provision that victim participation and victim and witness protection measures shall be incorporated in the Rules of Procedure and Evidence adopted by the judges. (See specifically Articles 12, 16, 17, 25, and 28 of the statute and Rules 50, 51, 52, 93, 116, 133, 137, 139, 159, and 166).

ICC approach: Comprehensive statutory provisions establishing Victim and Witness Unit and specifying victim and witness protection obligations of Prosecutor, pre-trial chamber, and trial chamber provide protective measures, particularly in cases of sexual violence. Also includes provisions on victim participation, reparations, a victim trust fund, and specific provisions for the protection of victims involved in requests for assistance. (See specifically Articles 43, 53, 54, 57, 64, 75, 79, 87, and in particular Article 68 of the statute and Rules 16, 17, 18, 19, 43, 72, 76, 81, 87, 88, and 112)

ICT: Though the 1973 Act does not contain any provision regarding witness and victim protection, the Rules of procedure has been amended in June 2011 where the term “Victim” has been defined (Sub Rule 26 in Rule 02) as a person who has suffered harm as a result of commission of the crimes under section 3(2) of the International Crimes (Tribunals) Act, 1973.” Besides, under the new Chapter VIA, a new Rule 58 A(1) has been inserted on Witness and Victim Protection which says “[t]he Tribunal on its own initiative, or on the application of either party, may pass necessary order directing the concerned authorities of the government to ensure protection, privacy and well-being of the witnesses and or victims. This process will be confidential and the other side will not be notified”. Sub Rule 02 inserted arrangements of accommodation of witnesses or victims and other necessary measures regarding camera trial and keeping confidentiality as necessary where violation of such undertaking shall be prosecuted under section 11(4) of the Act.

The success of these protective measures is yet to be proved especially with regard to the sexual violence witnesses. Besides holding the camera trial, the Tribunal should take other protective measures so that the witnesses come forward more to testify before the Tribunal.

Lastly, the proposed national law on victim and witness protection addresses many significant needs of members of this vulnerable group, and acknowledges the importance of support mechanisms that address physical, psychological, and economic wellbeing of victims and witnesses who will testify before the Court. However, the proposed legislation does not provide comprehensive measures compared to those provided by international and hybrid criminal tribunals. So if we want to ensure the safety and security for witnesses of any crime in future, we need to take certain guidelines from the international and hybrid tribunals which are consistent and feasible to the present socio-economic context of Bangladesh.

Why it may be time for Truth and Reconciliation for the STL and Lebanon

WRITTEN BY: SEVANE TADEVOSSIAN[1]

In this post I explore the question of whether the Special Tribunal for Lebanon (STL) could benefit from the establishment of a Lebanese Truth and Reconciliation Commission (TRC). The establishment of a TRC may be particular useful with regards to its (1) legitimacy, (2) outreach, and (3) rule of law.  To understand the very mixed and complex cultural background where a new tribunal is trying to settle in, it is crucial to have an understanding of the specificity of Lebanon. Indeed, the country has suffered a violent civil war which started in 1975 and lasted more than ten years. Lebanon was occupied by Syria starting in 1982, and Syrian troops were finally withdrawn in 2006, following UN Resolution 1559. However, Syria kept powerful influences in Lebanon through the Hezbollah, a Shia party.[2] There is a multitude of religious groups linked to political parties in Lebanon, the main ones being the Sunni Muslims, the Shia Muslims, the Maronite Christians, the Greek Orthodox, the Druze, and so forth.[3] It is in such a fragile and diverse context that the Special Tribunal for Lebanon (STL) is trying to bring justice and stability to the country.

On 14 February 2005, a suicide car bomb killed the former Lebanese Prime Minister Rafiq Hariri and 22 others persons. In response, the United Nations (UN) Security Council (SC) created on 7 April 2005 the International Independent Investigation Commission (UNIIIC) to investigate this terrorist attack. Following these investigations, the UN, in cooperation with the Lebanese government, decided to sign an agreement (the Agreement[4]) to create a Special Tribunal for Lebanon. The latter has a mandate to indict the perpetrators of the 14 February 2005 attack, as well as the perpetrators of eventual subsequent attacks as long as they would be linked to the first attack and would resemble it in terms of its methods and motives. Unfortunately, political killings are very common in Lebanon, thus increasing expectations that the STL finally will help with the peace restoration within the country.

The Special Tribunal for Lebanon is the last tribunal to have entered the world of international criminal justice. It differs from other similar instances due to its uniqueness, both because of its structure and its mode of functioning. However, the existence of the STL is hotly disputed because of its partial inactivity five years after its entry into force, and especially because of its very poor reception by the Lebanese population.

Legitimacy

One of the main issues of the STL is the debate on why it was established, i.e. questions regarding its legitimacy, as some critics have justifiably stated that the STL is the incarnation of selective justice in the sense that it is only created to find truth and justice for a Prime Minister. Where the STL’s legitimacy, and de facto credibility, is most exposed within the Lebanese population itself and this fact contributes to hindering national reconciliation. Undeniably, the STL divides the population into two camps: for and against the STL.[5] Sunnis and Christians, who form the “March 14 movement,” support the STL, placing high hopes in it to fight against impunity and finally see an end to political assassinations in Lebanon.[6] For both the Sunnis and the Christians, the STL has a symbolic value. On the contrary, the “March 8 coalition,” consisting of the Shia parties Amal and Hezbollah, vehemently oppose the existence of the STL because they suspect it of being an instrument of foreign political powers.[7] Thus, the STL is facing many challenges to its general acceptance by the Lebanese population, particularly owing to the local perceptions from a historical and political context tinged with a long recent civil war.[8] Its legitimacy is flawed, as notes Sheikh Mohamed Hussein Fadlallah:

“How can this tribunal achieve legal results and establish judicial rights when it is rejected by a large segment of the Lebanese population and by Syria? How can its resolution be implemented without creating tension? When we see that the states pushing most for this tribunal are the US, the UK and France, the big question is whether their aim is really to bring the truth or to introduce their interests in the region through it?”[9]

Therefore, I believe it is fundamental for the STL to clearly face the fears and allegations of its critics, first, in order to be able to carry out its mandate thoroughly, and second (if not above all), to calm the tensions it has created within the Lebanese population. Indeed, I think that beyond its mandate, is it also the STL’s duty to bring peace to Lebanon as the mandate of the STL is basically an order to establish justice and peace, albeit limited to the Hariri case but implicitly to the rest of the country as well, knowing the implications of the Hariri case.[10] Besides, the Security Council (SC) established the STL at Lebanon’s request. Therefore, it means that the Lebanese government is searching for specific goals within the convention signed with the SC. Indeed, the SC granted the Lebanese government’s wishes by agreeing to a convention, but the true desire of the government was not only tied to the Hariri case: it was a national plan to find justice. And there is no need to look too deeply into the matter to come to the conclusion that it was made with a view to bring violence and impunity to a halt in order to finally achieve peace and security (the involvement of the SC under Chapter VII of the Charter makes it even more obvious).

At the end, the true issue comes down to ownership. Only the feeling of ownership of the STL by the Lebanese population will establish its much desired acceptance, legitimacy, and credibility. As one scholar stated, “the question of ownership of the tribunal is the decisive question. First and foremost, such a tribunal has value only to the degree in which societies see it as an essential component to clarify past crimes and to rebuild trust in the institutions and improve the rule of law. This being said, the work of a criminal tribunal – even when it is highly successful – is a long process. Nuremberg trials have been perceived from 1946 to the mid-sixties at being a tribunal of victors. It has taken a generation in order that the legacy of the Nuremberg trials became part of the German ethos. To believe that the Hariri Tribunal will be a quick fix to create a common narrative among Lebanese would be a major mistake.”[11]

It tastes bitter to admit that these comments made in 2007 turned out to be true and continues to be so to this day.

Outreach

Outreach is widely connected to legitimacy. Indeed, without a good outreach policy, no explanation can be given concerning legitimacy or further concerns, thus keeping the STL misunderstood. But from this misunderstanding also stems the lack of credibility, the possibility of political manipulations, and so forth. Therefore, it is completely in the STL’s interest to develop outreach towards the Lebanese population, and to be at service for any questions or concerns the Lebanese might have, as at the end of the day, the STL was established to bring justice, peace and stability to the country. And no peace and stability can be maintained in Lebanon if its own population has serious reservations and legitimate doubts about the most important symbol of justice in the country. Even if the STL has developed a strong social media network and its representatives have tried to integrate an international response to its issues, it seems like all these efforts are not enough to justify and convince the Lebanese population on its results, and most importantly on its future existence. Lebanon can get inspired by the process in Sierra Leone where their TRC launched a “sensitization phase” of its program and work in 2002. Again, there is plenty of room for improvement of the STL’s outreach.

Legal culture against impunity: gaining respect for the rule of law

The STL could benefit a great deal from a Lebanese TRC. If a tribunal, i.e. the STL in our case, is the place where the rule of law is to be respected and implemented, it may not have an impact outside of the tribunal. Indeed, resulting from the meager outreach work of the STL, the lessons learned and the principles and values defended in the tribunal may not always be available for the other legal practitioners, let alone the population. It would be very useful and helpful for the Lebanese to set up an institution that would aide them on the workings of the STL, in terms of both its strengths and weaknesses: learn from its mistakes, construct from its successes. In my opinion, the Lebanese rule of law as well as Lebanese themselves would have a lot to gain from such a mechanism: a place where information and updates would be shared, and legal strategies could be discussed; a place where the STL jurists could exchange views with Lebanese jurists, the nationals learning from the internationals, and vice-versa. Indeed, it is not only up to the international jurists to train the local jurists, but maybe to even greater benefit the domestic Lebanese jurists could explain to the internationalized branch of the STL (the STL being a “hybrid” tribunal, i.e. a mix of local and international staff) the local legal culture and norms.

But in case of such an institution never seeing the light of day… could it be possible that local jurists as well as the Lebanese population both simultaneously and mutually strengthen respect for the rule of law via a TRC? If so, this would be a revival of the Lebanese will to fight against injustice. A TRC could be the perfect place where the STL would extend its work outside the persons concerned by its mandate, hence my belief that a TRC could be an interesting tool for the STL and the Lebanese situation as a whole.

The Special Court for Sierra Leone and its TRC

The TRC in Sierra Leone was established on July 7 1999, after the signing of the Lomé Peace Agreement (1999). The TRC “has been established through an act of Parliament by the government of Sierra Leone, [but it] will be an independent body. The commission was later enacted in 2000 by the President and Parliament.”[12] The TRC in Sierra Leone has two main goals: to investigate the violations, and to restore human dignity to the victims. Its specific mandate is the following: “to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone, from the beginning of the conflict in 1991 to the signing of the Lomé Peace Agreement; to address impunity, to respond to the needs of victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered.”[13]

Vargas states that “it is clear that the TRC is not a judicial body; however, since there is a Special Court for bringing to justice those who were the most responsible of violations during the war, the TRC can focus then in a catharsis to promote reconciliation and reduce conflict over the past and not necessarily in finding who the guilty are. The TRC is a fact finding body but with the additional responsibility of setting up a follow-up process to put the country together once more.”[14]

The Moroccan TRC

The Moroccan TRC, called the Instance Equité et Réconciliation (IER), was created on 7 January 2004 by King Mohamed VI to investigate human rights violations such as disappearances and arbitrary detentions that took place between 1956 and 1999 in Morocco. Besides bringing justice to the victims of these violations, part of its mandate is to produce a report on these violations and to suggest various forms of compensations and reparations to the victims. King Mohamed VI further asked the IER to formulate recommendations to help Morocco in preventing the repetition of such crimes.[15] However, some criticism was leveled since grave human rights violations such as torture were not in the TRC mandate. Such criticism is what the STL is currently experiencing on its selective mandate.[16]

Building Bridges Between Mechanisms

Building bridges by making links between mechanisms that have worked and the possibility of creating a TRC is where such a realization might be judged as realistic or not. It could be achieved by relying on concrete measures, tying theory to practice with some guidelines to follow and guarding against repeating mistakes using previous experiences.

Sierra Leone did not refrain from establishing a TRC despite the existence of a special court. Even if it meant that more money was to be spent in the judicial field and that some sectors would lack funding, the government chose to implement a second institution for the quest of truth and justice. No doubt, Sierra Leone was acutely aware that the prolonged division within the population and the feeling of fear, frustration and injustice would bring nothing positive to its future. For Sierra Leone, the resolution of the conflict had no cost. In the end, it is after all a matter of priorities, of which choices to make. I think that Sierra Leone did choose correctly. Lebanon should, for its own sake, take inspiration from Sierra Leone and not be stopped by the existence of the STL. Indeed, judicial apparel was established in Lebanon. However, when it comes to its efficiency, criticisms are being made. Hence the urgency to find some solutions and suggest a complement to its work.

Then, why not base the Lebanese example on the Sierra Leone case? After all, they both have special courts and Sierra Leone still established a TRC despite the existence of a tribunal similar to the STL. Vargas claims that both institutions, i.e. the SCSL and the TRC,   “were created to address, in their own particular way, the same events, and are functioning at the same time. At the end, what it is meant is to answer if this transition process can lead to both: peace and justice.”[17] In addition, Lebanon can get inspired by the process in Sierra Leone where the TRC launched a “sensitization phase” of its program and work in 2002. Again, there is plenty of room for improvement of the STL’s outreach.

Each situation is unique and different. Therefore, I think that it is essential to first identify the challenges and issues, and then proceed with the best solutions fitting this and only this situation. The application of an ICT everywhere is not the answer, and the Lebanese example is the proof. It is important to include the work of not only psychologists, but sociologists and political scientists (in order to understand the sensitive issues in the region) to have a holistic approach and a vision as a whole. Indeed, if only jurists are involved in a process as huge as peace-building and reconciliation, no wonder the system is not working, as law and justice represent a part of the process. Maybe the most vivid example of such a mistake was in Iraq.[18]

CONCLUSION

There are quite a few unsolved issues with regards to the STL in Lebanon. Impunity and justice are still ongoing every day that passes by in which nothing is done to put a halt to them. It seems that Lebanon itself is unable to cure its own wounds, but this country managed to put its ego to one side and bluntly reached out to the international community for help. Thus, it is now the international community’s duty to provide relief in solidarity to the Lebanese population. The Lebanese population plays such a central role in the weight given to any political decision that this is why focus has to be made on the outreach of the STL. The STL needs the population’s support in order to fully complete its mandate. Therefore, its acceptance by the Lebanese is key.

Also, it is essential to keep in mind that the consequences of this tribunal are not limited merely to the legal field, but also apply to every aspect of Lebanese life. Indeed, if there is so much controversy around the STL, it is not because jurists are debating it all over the world. It is because its symbol has repercussions and meaning for everyone, not only in Lebanon, but also beyond Lebanese borders. It instills fear because it is the living proof that justice can be enforced by the SC in any situation, even for only one death. And then looms another fear: what kind of justice is that? Such darkness and misunderstanding generate violent reactions and understandable concerns. It is now up to the STL to face these fears, and I propose that it does so through its outreach and, why not, through a coordinated TRC? However, a TRC may not be the most appropriate option, and therefore further analysis of other forms of mechanisms is needed. No matter what form that mechanism would take, the key word is ownership, as without it any type of institution will fail in its task to make the population connect with the tribunal.

There is something more to be done in Lebanon. For the reasons exposed throughout this research paper, I think the establishment of a TRC that would complement and support the STL’s work is a viable idea. Hence, this eventuality could be explored by experts of transitional justice. To anticipate the Lebanese expectations and reactions, a referendum among the population could serve as a barometer of the reception of such an idea. Now is the time to put into full action the machinery of justice and to put all the chances on the tribunal’s side for the STL to work efficiently. As the former Prosecutor of the ICC Luis Moreno Ocampo states, “silence has never helped or protected victims. Silence only helps the criminals.”[19] Therefore, it is about time that the STL’s silence on the suffering of the Lebanese population ceases, and that finally a mechanism such as a TRC echoes the unheard victims’ voices.


[1] The author is a graduate of the UNICRI 2012, LLM program in International Crime and Justice. You can email the author for more information: sevane.tadevossian@gmail.com

[2] Corm, Georges, “Le Liban contemporain, Histoire et société”, p.302

[3] Corm, Georges, “Le Liban contemporain, Histoire et société”, p.27

[4] The Agreement between the UN and the government of Lebanon for the establishment of the Special Tribunal for Lebanon (in the « Annex » section of this paper)

[5] See interview with Fatima Sara, Elias Mirza and O. and Iloubnan.com, « Le Tribunal Spécial, un instrument pour susciter les tensions à l’intérieur du Liban », posted on http://www.iloubnan.info/politique/interview/id/48016/titre/Le-Tribunal-sp%C3%A9cial,-un-instrument-pour-susciter-les-tensions-%C3%A0-l-int%C3%A9rieur-du-Liban

[6] See interview with O. and Wierda, M., Nassar, H., Maalouf, L., “Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon” in Journal of International Criminal Justice, pp.1066

[8] See Corm, Georges, « Le Liban contemporain, Histoire et société » et « L’Europe et l’Orient, De la balkanisation à la libanisation, Histoire d’une modernité inaccomplie »

[9] Wierda, M., Nassar, H., Maalouf, L., “Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon” in Journal of International Criminal Justice, pp.1074

[10] See “Extracts” §2

[11] Hazan, Pierre, “Truth-Seeking and Justice in Lebanon and its Repercussion on the Conflict” in Expert Paper “Workshop 9 – Justice Mechanisms and the Question of Legitimacy: Concepts and Challenges”, p.5

[12] Vargas Juarez, Raúl, “The relationship between the Special Court and the Truth and Reconciliation Commission in Sierra Leone : issues of transitional justice”, p.23; see also Romano, Cesare P.R., Nollkaemper André, Kleffner Jann K., “Internationalized criminal courts and tribunals : Sierra Leone, East Timor, Kosovo, and Cambodia”

[13] Truth and Reconciliation Act (2000), section 2 (b)

[14] Vargas Juarez, Raúl, “The relationship between the Special Court and the Truth and Reconciliation Commission in Sierra Leone : issues of transitional justice”, p.25

[15] Human Rights Watch, “La commission marocaine de vérité : Le devoir de mémoire honoré à une époque incertaine”, p.2

[16] See section  « A mandate of selective justice » of this research paper, p.9

[17] Vargas Juarez, Raúl, “The relationship between the Special Court and the Truth and Reconciliation Commission in Sierra Leone : issues of transitional justice”, p.2

[18] Hazan, Pierre, « La paix contre la justice ? », p.124

[19] DVD “The Reckoning, the Battle for the International Criminal Court” de Pamela Yates (2009)