TRIAL International welcomes a verdict of the Supreme Court of Nepal which continues its decision of restricting amnesty, pardon and withdrawal of mass human rights abuse cases.
On 27 April 2020, the Supreme Court of Nepal rejected a petition by the Nepali government to review its earlier verdict in the case of Suman Adhikari v. Nepal Government.
Rendered on 26 February 2015, the initial verdict was a landmark in the transitional justice process in Nepal. It recognized that the 2014 Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act went against international standards of transitional justice. Subsequently, the Supreme Court had ordered the government to amend it. To this day, it remained dead letter.
“Another step to evade the real issue”
It has been 14 years since the Comprehensive Peace Accord was signed. However, since then the government has only taken questionable steps, from not amending the laws to making political appointment of commissioners in the two transitional justice bodies. Requesting the Supreme Court to review its decision was yet another attempt to delay the already-stalling process.
“The request filed by the Nepal Government to the Supreme Court was another step to evade the real issue: accountability for mass human rights violations” said Cristina Cariello, Head of TRIAL International’s Nepal program. “We are delighted that the Supreme Court held its ground and reaffirmed the importance of fair and efficient transitional justice mechanisms.”
In addition to the Supreme Court, the United Nations High Commissioner for Human Rights, national and international bodies, civil society organizations and the victims themselves have called on the government to ensure that Nepal’s domestic legal framework is consistent with international human rights standards.
The trial against Anwar Raslan and Eyad al-Gharib, two former officers of the Syrian government’s security apparatus opened on 23 April 2020 at the Higher Regional Court in Koblenz, Germany. The two men stand accused of crimes against humanity. This is the first trial in the world to judge state torture in Syria.
TRIAL International and Amnesty International welcome the opening of the trial of two former officers of the Syrian General Intelligence Services. “An important step towards justice“, according to the two organisations. Anwar Raslan is on trial on charges of torture, rape and aggravated sexual violence. Eyad al-Gharib is accused of complicity in some 30 cases of torture.
“This trial is a historic step in the struggle for justice for the tens of thousands of people unlawfully detained, tortured and killed in Syrian government’s prisons and detention centers“, said Alain Bovard, lawyer and spokesperson for Amnesty International’s Swiss section. “This would not have been possible without the bravery and sacrifices of Syrian survivors, families of victims, and scores of other individuals and organizations who have relentlessly pursued justice and truth, often putting their own lives at risk in doing so“. The organisations would like to pay special tribute to the work of the German organisation ECCHR, and the Syrian organisations SCLSR and SCM.
CROSS-BORDER TRIAL
Based on the legal principle of universal jurisdiction, this trial places Germany among the pioneers in the fight against impunity. Indeed, the investigation carried out by the German authorities is not limited to the two defendants alone, but on the serious violations committed by Bashar Al-Assad’s regime as a whole. In other words, the evidence gathered by the German investigators may also serve as a database for future prosecutions against other leaders of the Syrian regime. It cannot be excluded that this evidence will also be shared with the prosecuting authorities of other countries upon request.
“We hope that this precedent will inspire other jurisdictions to use universal jurisdiction,” said Philip Grant, executive director of TRIAL International. The organization that fights against impunity publishes an annual report on universal jurisdiction, in which the crimes committed by the two defendants figure prominently. “This trial is the embodiment of a principle that is undeniably gaining momentum, and may continue to do so. Universal jurisdiction is a concrete and tangible tool that could be used much more to bring justice to the victims of the worst atrocities“.
A BENCHMARK TO BE FOLLOWED, ALSO IN SWITZERLAND
The two organizations also call on States to follow the example set by Germany in initiating similar proceedings against individuals suspected of international crimes, including by providing their specialized units with sufficient resources, both human and financial.
Switzerland too, has an important role to play in the fight against impunity. The Office of the Public Prosecutor of the Confederation has a unique opportunity to make progress in another pending Syrian case, filed by TRIAL International in 2013. It has been more than six years since proceedings against Rifaat al-Assad, the uncle of the Syrian President, have been underway. “Only a few witnesses have been heard in these proceedings, which should be conducted expeditiously and efficiently given the age of the defendant, his role and the importance of the case,” said Jennifer Triscone, legal advisor at TRIAL International. One of the reasons for this is the understaffing of the authorities in charge of prosecuting international crimes. And undoubtedly a lack of political will.
Georges was arbitrarily arrested in Burundi and tortured during his time in detention. TRIAL International has taken his case to international bodies, so that his executioners can finally be held accountable for their actions.
Since April 2015, Burundi has witnessed a horrific escalation of violence and numerous human rights violations against opponents to the government or people perceived as such. Georges (real name withheld) was one of the many victims of this escalation of violence.
Arrested and forcibly taken away by state agents, he did not have the time to understand what was happening to him. At the police office, he was forced to lie on the ground with his stomach face-down. He was also insulted and forced to “confess” his allegiance to an armed group of the opposition. Although George denied this, it did not stop his executioners from beating him.
The beginning of a long suffering
During his two weeks in detention, Georges suffered the worst abuses: incarceration in unhealthy conditions, deprivation of food and visits, torture sessions… State agents even broke his bones before denying him the necessary care.
When Georges was finally presented to the judicial authorities, more than two weeks after his arrest, he had still not seen his lawyer. The marks of the torture he had endured were still visible. Despite this, Georges was placed in pre-trial detention before receiving a heavy sentence for “participation in insurrectional movements”.
At the mercy of further abuses
Since then, Georges has remained incarcerated in Burundi. Despite his complaint for ill-treatment, nothing has changed. Although an investigation into his case had been opened after several months, no action ensued. As a result, Georges remains at the mercy of further abuses in prison and his bone fracture, which he suffered as a result of the torture sessions, continues to cause him pain.
To end this nightmare, TRIAL International is pleading his case at the supranational level. The case is ongoing.
Despite the significant progress made in recent years, many survivors of wartime sexual violence still continue to face stigmatization in Bosnia and Herzegovina (BiH). A training for prosecutors and judges, organized by TRIAL International, addressed stereotypes and stigmatization that survivors encounter during criminal proceedings and showed participants how to avoid them.
“According to research, for one reported rape there are 15 to 20 unreported cases. The reasons behind this statistic include the length of court proceedings and short sentences for perpetrators, both of which lead victims to distrust the judicial system”, said Milanko Kajganić, Prosecutor at the Prosecutor’s Office of Bosnia and Herzegovina.
Sexual violence victims face a number of challenges in coming forward to speak about the crime. For instance, societally imposed and internalised feelings of shame and blame and concern that the public will judge them. However, discrimination does not stop there – this pattern continues in the courtroom as well, said Kajganić. These stereotypes are perpetuated through questions asked in court, the language used in verdicts, the characterisation of crimes, the admission of certain evidence, the imposition of protective measures, and the acquittal of perpetrators.
“The whole process can be very difficult for the victim and can lead to retraumatization. That is why preparation and support are crucial for the witness. They need to be encouraged”, said Andrea Masic, a psychologist at the Court of Bosnia and Herzegovina.
Awareness-raising induces positive change
Such discriminatory stereotypes undermine the victims’ dignity and credibility and constitute an egregious interference with their brave decision to report the crime. Still, there is progress, said Božidarka Dodik, judge at the Supreme Court of Federation of Bosnia and Herzegovina.
“This is evident from the comments and reactions of judges and prosecutors attending trainings. We can also see it in court decisions rendered between the start of the workshops and up until now“, said Dodik.
Still, the problem of stigmatisation does not end with the final verdict. Even if victims obtain the satisfaction of seeing their perpetrators convicted, they must live and deal with the stigma outside the courtroom. It is thus vital that all sectors of society work to improve the position of sexual violence survivors. Every individual and institution need to get involved in stigma alleviation.
A message from Philip Grant, Executive Director
Dear friends,
In the last few weeks, our everyday life has been profoundly impacted by the coronavirus pandemic. In addition to the sanitary crisis, an unprecedented economic crisis is raging – jeopardizing the mission of many non-governmental organizations.
This crisis affects many people and we are aware that you are often solicited – maybe even directly impacted yourself. I was therefore hesitant to send you this message. But I cannot bear the idea that victims who have suffered so much in the past are once again pushed into the background.
The needs reported from the field are urgent: “The anxiety-inducing context revives the psychiatric disorders of certain survivors, but they are denied healthcare because hospitals are overwhelmed” explains my colleague Selma Korjenic in Bosnia and Herzegovina.
There is no beating about the bush: the next few months will be extremely hard for TRIAL International. Our team will stay on the side of victims and committed to their quest for justice. But we cannot do it without your support.
What could a Serbian grandmother, a Congolese child and a former beauty queen from The Gambia possibly have in common? All three, much like thousands of other victims around the world, have suffered conflict-related sexual violence. In Africa as in Europe, to dare to come forward, speak out and denounce such crimes is a true act of courage.
Survivors of sexual violence face deep-rooted stigma. It may occur at a personal level or within the family or community, but also at an institutional level, in the judicial system. Feelings of guilt and shame fueled by many widespread misconceptions often discourage victims from talking about their experience. Despite how difficult it is to testify, TRIAL International is fighting to ensure that conflict-related sexual violence does not go unpunished.
Stigma within communities
In the Democratic Republic of the Congo (DRC), survivors who dare to speak out about sexual violence can face disastrous consequences. Often, married women are repudiated by their husbands and rejected by their whole family. In a country where social services are virtually non-existent, and where family solidarity is a matter of survival, victims are left vulnerable and without resources. For fear of ending up without neither material nor emotional support, many victims prefer to remain silent.
The stigma is partly based on the idea that sexual violence is degrading for the victim, not for the attacker. The burden of shame is thus borne by the victims – men and women who are considered defiled. Women risk not being able to marry, while men, their virility undermined, suffer unabated stigma and shame.
Marginalized within their own communities, with no income, shelter or moral support, victims of sexual violence require special protection and holistic support: medical care, psychological support, financial assistance, and more. When victims are willing, TRIAL International and its local partners help them take part in legal proceedings.
Institutional stigma: the case of Bosnia and Herzegovina
In the 1990s, more than 20’000 women and several thousand men were raped in Bosnia and Herzegovina during the war. As the country continues to battle with its own past, a report published by TRIAL International reveals the stereotypes institutionalized in the judicial system. The most common ones include the idea that the victim must physically resist his or her attacker and that the victim shares a part of the responsibility for the abuse suffered.
Such myths permeate the actions of judges, prosecutors and lawyers in Bosnia and Herzegovina – as undoubtedly elsewhere as well. Often subconsciously, they perpetuate the stigmatization of sexual violence survivors and discourage victims who may have hoped for justice from taking action.
Stereotypes creep as far as into the choice of words used to describe the attack. In their judgments, courts may sometimes refer to sexual violence as “an attack against the woman’s honor” or “the worst thing that could happen to a woman”, which emphasizes the idea that the act defiles the victim. Time and again, it is the victim’s honor that is attacked, not that of the culprit. Such expressions, though they may be intended to highlight the seriousness of the crime, instead feed the stigma directed at victims.
Moving toward greater justice
At institutional level, raising the awareness of legal practitioners and human rights defenders is key to providing victims with comprehensive and reassuring support. That is why TRIAL International organizes many training sessions on the subject, in both Africa and Europe.
Moreover, court victories that condemn the perpetrators of sexual violence send a strong message. In some cases, such as that of Fatou Jallow, the former beauty queen from The Gambia, denouncing the crime publicly also eases dialogue, encourages other victims to speak out, and helps change mentalities.
The latest Universal Jurisdiction Annual Review (UJAR) salutes the rise of universal jurisdiction cases worldwide. It also highlights an alarming legal trend: the prosecution of mass atrocities as terrorism, and not international crimes.
In 2019, the use of universal jurisdiction has grown exponentially. The past year has seen an unprecedented number of cases based on this legal principle: 16 countries have ongoing prosecution, 11 accused are currently on trial and over 200 suspects could soon be, too.
Since universal jurisdiction is now a well-established legal practice, the debate has now shifted from whether to use universal jurisdiction to how. And a potentially harmful trend is looming…
Charges of terrorism or international crimes?
The fight against terrorism has become a political priority for many governments, and prosecutions under terror charges are also on the rise. Unfortunately, given the limited resources, this happens at the detriment of prosecutions for international crimes.
A detail? Not at all. The consequences are very real: the breadth of the prosecuted crimes is reduced, because charges of terrorism are less inclusive than charges of war crimes, crimes against humanity or genocide. What is understood as “terrorism” also diverges widely from one country to another.
“Terrorism does not have a single, internationally recognized definition” comments Valerie Paulet, Editor of the UJAR. “Contrary to genocide, torture, enforced disappearance or war crimes, no international treaty circumscribes terrorism clearly. Each State has come up with its own definition, often influenced by current affairs and public opinion.”
Distinct legal bases
Another consequence is that victims have a less prominent role in the proceedings: terrorism is an attack on a State, not individuals. A hard truth to accept for man survivors, for whom access to justice is a step towards closure.
The lack of consensus on the definition of terrorism has another, more insidious consequence. It opens the door to State arbitrariness, whereas treaties codifying international crimes (such as the Convention against Genocide or the Geneva Conventions) are grounded in collegial decision-making upholding the highest standards. Put differently, the present tendency could weaken the foundations of international law, instead of reinforcing it.
The unprecedented willingness from States to punish the worst atrocities is highly positive. Now, the authorities must not cave in to political pressure and limit prosecution to terrorism charges. With the support of civil society and rooted in compelling international norms, they must prosecute crimes against humanity, war crimes and genocide for what they are. No more, no less.
The Universal Jurisdiction Annual Review is TRIAL International’s main legal publication. It has been researched and written by Valérie Paulet, in collaboration with REDRESS, the European Center for Constitutional and Human Rights (ECCHR) and the International Federation for Human Rights (FIDH). It benefited from the generous support of the City of Geneva, the Oak Foundation and the Taiwan Foundation for Democracy.
Between 2014 and 2017, The Gambia exported nearly 163 million US dollars-worth of rosewood, a rare and precious tree species, to China. During this time, Westwood, a Gambian company presumably owned by Swiss national Nicolae Bogdan Buzaianu and former Gambian President Jammeh, had the exclusive license to export rosewood. The timber it exported was illegally felled in neighboring Casamance where the separatist armed group has been fighting the Senegalese army for decades. TRIAL International filed a criminal complaint with the Swiss Office of the Attorney General against Mr. Buzaianu accusing him of having pillaged conflict timber.
According to the criminal complaint (dénonciation pénale) filed by TRIAL International, Swiss businessman Nicolae Bogdan Buzaianu’s company was involved in the pillaging of precious rosewood from Casamance between 2014 and 2017. During this period, Westwood Company Ltd – which, according to TRIAL International’s findings, Mr. Buzaianu co-founded with former Gambian President Yahya Jammeh – had a monopoly on the export of rosewood, a precious tropical wood from The Gambia. But with Gambian rosewood nearly depleted since 2011, most of the timber was actually imported from Casamance, a region in southern Senegal that borders The Gambia. For several decades, large areas of this region have been under the control of the separatist armed group, the Mouvement des forces démocratiques de Casamance (MFDC).
“Exploiting natural resources from a conflict zone is a war crime that must be punished. Without the pillaging of natural resources, many armed groups would have no means of financing their wars’, said Montse Ferrer, Senior Legal Advisor and Corporate Accountability Coordinator at TRIAL International. ‘Despite numerous documented cases of pillage, not a single conviction has been made since the end of World War II.’”
TRIAL International filed a criminal complaint for pillage against Mr. Buzaianu in Switzerland with the Office of the Attorney General (OAG) in June 2019. ‘We have waited until today to go public because we wanted to give the Swiss prosecutorial authorities sufficient time to review the evidence and, as the case may be, take decisive action against Mr. Buzaianu. We are hopeful that these steps have been taken and that the OAG is investigating the matter’, she added.
LOGGING THAT BENEFITS AN ARMED GROUP
Some estimates suggest that Senegal loses the equivalent of 40,000 hectares of forest per year, several dozen hectares of which are lost due to the illegal exploitation of rosewood in Casamance. This selective deforestation has led to a decrease in rainfall and increased desertification in the region. It has also led to conflicts between rebels and communities who can no longer use the forests for sustainable livelihoods.
Illegal logging of precious woods is problematic, as it undermines reforestation efforts in the region. According to the International Institute for Environment and Development (IIED), “in the village of Koudioube, the restoration of the community forest has helped to overcome conflicts.” Illegal logging has stopped, fruits and wildlife are abundant, and local people are once again able to sell forest products. Communities that used to fight each other are now working together.
A large share of the trafficking and logging has been taking place directly in the territory controlled by the MFDC for almost thirty years. ‘Westwood’s illegal activity is all the more serious because it contributed to an illegal timber trade that has historically financed the MFDC. Equally striking is that this trade has had such a negative impact on the lives of local people contributing directly to the deforestation of the region’, said Jennifer Triscone, Legal Advisor at TRIAL International. The armed group exercises de facto control over the precious wood industry by issuing logging authorizations and transport permits, and by ensuring the security of the latter. The rebels also illegally exploit and sell precious hardwood timber to finance their armed struggle: an illegal trade fueled by demand from the global tropical hardwood market.
Reported cases of Covid-19 are on the rise. As anti-contamination measures are enforced across the globe, TRIAL International is doing its utmost to maintain its activities while ensuring the safety of its workers, partners and beneficiaries.
Our organization has swiftly adapted to keep up its mission: fighting impunity for international crimes and bringing justice to victims. TRIAL International is aware that its beneficiaries rely on its support, perhaps more acutely than in normal times. Our primary obligation remains to serve them to the best of our ability.
In conformity with local directives, TRIAL International has implemented a number of measures to ensure its staff can keep working in safe conditions:
TRIAL International’s staff in Geneva work from their homes. Events and meetings with outside partners have been postponed.
TRIAL International’s staff in Sarajevo (Bosnia and Herzegovina) work from their homes. Events and meetings with outside partners have been postponed.
Consultants in other parts of Europe work on a reduced-hours basis.
The staff of TRIAL International’s sister structure in Katmandu (Nepal) work from their homes as of 23 March 2020. Events and meetings with outside partners have been postponed.
TRIAL International’s offices in Goma and Bukavu (Democratic Republic of the Congo) function as usual, with reinforced hygiene and anti-contamination measures. All travels within the country are suspended and meetings with third parties are limited to the strict minimum. A consultant has been mandated to help the local staff prepare, should the situation worsen.
All field missions are postponed until further notice.
An emergency focal point has been designated, should staff members present early symptoms of Codiv-19. Official guidance and updates are sent to all staff members daily.
In spite of our best efforts, external factors have inevitably resulted in the postponement or downscaling of some activities: closure of domestic tribunals, modifications of the judicial and political calendars, restricted movements of people, etc. We count on your understanding for these circumstances beyond our control.
In these difficult times, we are convinced that solidarity is more important than ever: we thank you for your trust and support, which enable us make a positive change for the most vulnerable. We hope that you and your close ones all staying healthy and vigilant.
We will update this page regularly to reflect the latest evolutions. In the meantime, if you have any questions, please write to info@trialinternational.org
Best wishes,
The TRIAL International team
In a searing, angry reckoning of a book, Christina Lamb, Chief Foreign Correspondent at The Sunday Times, exposes the unheard stories of women victims of conflict-related sexual violence. Her research includes the Kavumu case (DRC), in which TRIAL International took part.
Christina Lamb has worked in combat zones for over 30 years and has seen many atrocities. Her latest book, Our Bodies, Their Battlefield: What War Does to Women, is an effort to amplify the voices and stories of women in war. It is a call to bring justice against the perpetrators of war rape, and a demand not to turn away from hard truths.
“Rape became an international war crime in 1919, yet the International Criminal Court has not made one single conviction and the issue continues to be marginalized” says Lamb. “Rape and war have a long and painful history and today, the story hasn’t changed. Rape is a cruel, insidious and growing part of war, used against hundreds of thousands of women – often as part of barbaric military strategy.”
A harrowing example from DRC
Among many other examples, Christina Lamb’s book revisits the crimes committed in Kavumu (DRC) and the role TRIAL International and its partners played to bring the perpetrators before justice.
The chapter opens with a harrowing account of the repeated rape of very young children, and the parents’ powerlessness to stop them. It then describes how actors came together to build a case and bring it to court, from Nobel Peace Prize Denis Mukwege to the NGOs Physicians for Human Rights and TRIAL International.
“One problem was that, because of their young age, the brutality of the crime and the fact it took place in the dark, only one of the children could identify her perpetrator. No evidence had been taken at the time and in some cases three years had passed. However, through small details – such as the size, language and clothing of perpetrators – they were able to establish some important connections.” (From Our Bodies, Their Battlefield, p. 342)
Although the case ended with a positive verdict, Lamb emphasizes the irrevocable trauma the young victims still suffer. Some families still feel endangered, despite the main culprit’s arrest.
The mother of a raped girl recalls: “I was very happy when those people were convicted and I hope they stay forever in jail, but since that day my daughter is always sick, complaining about womb pain. I don’t think she will have a good future as everyone knows what happened to her.” From Our Bodies, Their Battlefield, p. 344)
By shedding a light on the families’ situation post-trial, Lamb makes a fundamental point: what happens after a verdict, especially access to reparations, is an often-overlooked aspect of justice.
Yet reparations are fundamental to victims’ reconstruction, both symbolically and physically. For the girls of Kavumu, they may make the difference between a life of dignity and one as outcasts. TRIAL International remains involved with the affected families to help them obtain the reparations ordered by the court.
The controversial Chetnik rally, which was supposed to take place in Visegrad on 13 March has been called off by the authorities, following a ban on public gatherings in an attempt to prevent the spread of the coronavirus. Even if the 2020 edition is postponed, TRIAL International strongly condemns the gathering of the Ravna Gora Movement, as it publicly incites hatred and causes fear among citizens, especially returnees.
Particularly problematic is the fact that this rally is being held in Visegrad, a city where some of the most horrific war crimes in the last war were committed, including the massacres, rapes, burnings and torture of civilians. Such gatherings evoke the horrible memories of the war for the survivors in Bosnia and Herzegovina (BiH).
“These associations and rallies promote fascist ideologies, and consequently, national and religious hatred by creating an atmosphere of discord and intolerance”, stated Lamija Tiro, Legal Advisor to TRIAL International in BiH. “The BiH Criminal law offers the possibility of punishing such acts, but there has been no concrete response from the judicial institutions. We still lack any real action that would prosecute the organizers of such events and ultimately ban such associations.”
In a context where it is accepted that a dormitory is named after Radovan Karadžić, where displaying photographs of convicted war criminals in public assemblies or establishing associations and organisations bearing the names of war criminals is not considered to be worthy of a conviction, TRIAL International strongly opposes these expressions of denial. The organization has recently taken a stand on this issue by publishing Calling War Atrocities by Their Right Name, in partnership with Forum ZFD.
TRIAL International urges local, entity and state authorities to prevent the Ravna Gora Movement from gathering. The organization also advocates to the Prosecutor’s Office of Bosnia and Herzegovina, in order to speed up the process of taking adequate measures on the criminal charges that were filed following the same gathering last year.
Torn apart and bled dry since the fall of Colonel Gaddafi, Libya is a paradise for smugglers. TRIAL International and Public Eye uncovered business transactions in 2014 and 2015 between the Swiss trader Kolmar Group AG and a network of Libyan gasoil smugglers whose leaders are facing trial in Sicily.
Despite several requests, Kolmar Group SA did not answer the questions asked by Public Eye and TRIAL International prior to publication. It has now, however, requested a right of reply to this report, which is published here. TRIAL International is not a member of the media of a periodic nature. TRIAL International maintains its presentation of the facts.
TRIAL International and Public Eye spent over a year investigating the highly problematic activities of Kolmar Group AG in Switzerland, Malta and Sicily. From spring 2014 to summer 2015, the Zug- based trader received over 50,000 metric tons of gasoil from Zawiyah refinery in Libya. The refinery’s perimeter was under the control of the Shuhada al Nasr brigade, accused by the United Nations of the exploitation and abuse of migrants. We were able to track three vessels transporting 22 shipments of gasoil from off the coast of Libya to storage tanks rented by Kolmar in Malta.
The Swiss company received the gasoil from a network of individuals with questionable reputations: Fahmi Ben Khalifa, previously condemned of drug trafficking in Libya, and his Maltese partners Darren and Gordon Debono, who chartered the tankers. We obtained a copy of a bank statement which shows that Kolmar transferred over USD 11 million to the small Maltese company Oceano Blu Trading Ltd from 18 June to 22 July 2015. At the time, the company was managed by Darren Debono. A number of gasoil shipments were delivered to Kolmar’s storage units during the same timeframe.
In March 2016, the UN panel of experts on Libya identified Fahmi Ben Khalifa as the head of one of the most active gasoil smuggling networks in the country. It was a very lucrative business – since the fall of Gaddafi, Libya has imported refined petroleum products to satisfy its domestic needs. These products are heavily subsidised, meaning the smugglers can divert and re-sell them abroad at a huge profit.
In fall 2017, the Sicilian Guardia di Finanza dismantled the network as part of its ‘Dirty Oil’ operation. Fahmi Ben Khalifa, Darren Debono and Gordon Debono are currently facing charges for ‘transnational conspiracy to launder gasoil of illicit origin and fraud’. The trial is ongoing in Syracuse, Sicily. During their investigation, the Italian police identified Kolmar as a ‘close partner of Gordon and Darren Debono’. The Zug-based company however has not been investigated by the Italian authorities. Despite numerous requests for comment, Kolmar did not answer our questions.
The case illustrates how certain Swiss traders are willing to make profit off the back of highly risky situations. While the civil war was raging in Libya and armed groups were fighting over control of the oil sector, Kolmar did not hesitate to do business with an obscure Maltese company that had no experience in the oil sector. And yet the oil sector was aware that Libyan gasoil was being smuggled and knew the role that Malta played in the business. Swiss companies must be prevented from offering a commercial outlet – either through negligence or complicity – for ‘dirty’ commodities obtained illegally or by violating human rights. It is therefore vital to subject firms to binding due diligence requirements.
The denial of genocide, the Holocaust, crimes against humanity and war crimes is used by a growing portion of the political class in Bosnia and Herzegovina (BiH). It is time to adopt a regulation to prohibit this kind of discourse in the public sphere. TRIAL International and ForumZFD open the debate with their new report, presented in Sarajevo on 25 February 2020.
In BiH, it is common for war crimes to be denied, minimised or even justified in public discourse. Perpetrators – even those who have been convicted – are publicly glorified without any punishment. Nationalist rhetorics glorifying these crimes and their perpetrators is more widespread than ever and now dominate the public discourse. So much so that some leading political elites openly dare to support them.
Negationism is not a fatality
ForumZFD and TRIAL International are convinced that hate speech has no place in the public sphere, and that a legal framework should prohibit Holocaust denial. The two organisations are publishing Calling War Atrocities by their Right Name, a report that hopes to initiate a dialogue on the importance of regulating public speech on the most serious crimes. A round table discussion with the author of the report, representatives of the Sarajevo Faculty of Law, associations and the Director of the Balkan Investigative Reporting Network brought together over 100 people on 25 February 2020.
“ForumZFD and TRIAL International draw attention to these occurences, which unfortunately happen every day in our society. They wish to encourage a constructive conversation on this topic. Public discourse must change radically”, said Selma Korjenić, Head of the TRIAL International office in BiH. In November last year, she had addressed the United Nations Security Council on this issue.
No impunity for hate speech
Legislation prohibiting and sanctioning denial of genocide, the Holocaust, crimes against humanity and war crimes would fight an entrenched culture of impunity.
“We sincerely believe that every society should face its past, however painful it may be. However, it is not enough, since even when war crimes are being tried in court, they are denied in public. That is how the conflict continues” said Judith Brand, Director of the forumZFD in BiH. She added that parallel work in the fields of education, culture, media and activism is the basis for the process of adequately addressing this issue.
A message from Daniele Perissi, Head of Great Lakes Program
Dear friends,
How can a country lift itself out of the vicious circle of violence? What can be done for communities paying a high price for it? Unfortunately, these are the questions facing the people of Kasaï in the Democratic Republic of the Congo (DRC). This region bordering Angola, although rich in natural resources, is one of the poorest and most violent in the country.
Between 2016 and 2017, recurrent violence has caused the death of more than 3’000 people whose bodies were found in more than 80 mass graves. Thousands of cases of torture and rape have also been reported. Most of those responsible for these crimes have not yet been prosecuted, as the victims distrust the existing judicial system and fear stigmatization. These components interfere with the justice process, enabling these atrocities to occur with impunity.
This year, TRIAL International in partnership with Physicians for Human Rights (PHR) is for the first time working in this region to fight against the scale and gravity of the crimes committed. This collaboration at the judicial and medico-level allow us to build bridges between law and medicine in order to better support the victims of international crimes. Despite the differences in the mandates of our organizations, they work together to ensure inclusive support for victims.
As Head of the Great Lakes Program at TRIAL International, I am very moved to be able to launch this new project in Kasaï and thus extend the fight against impunity in the DRC. Over the next three years, we aim to support hundreds of victims on the way to justice and reparations. At the same time, we will train a wide range of local actors in Kasaï in order to strengthen their capacity to use the mechanisms of the fight against impunity.
We simply could not do this lasting work without your support, and our successes are also part of your success. On behalf of the entire TRIAL International team, I thank you for your generous support in 2019 and hope to welcome you as one of our loyal partners again this year!
The African Commission and Court on Human and People’s Rights are regional mechanisms to protect the fundamental freedoms of individuals on that continent. TRIAL International is exploring whether they could represent hope for victims in Burundi.
It is no secret that the judicial system in Burundi is inefficient to say the least. The International Criminal Court (ICC) opened an investigation on the country in 2017, deciding that its complementarity assessment was satisfied – in other words, that there was a need for the Court to intervene to supplement the domestic justice system.
With this view, TRIAL International has focused its litigation on behalf of Burundian victims on the supranational level in the recent years. Its trainings to local lawyers and human rights defenders also insist on methods to bring cases before UN and regional bodies. One of the latter is the African Commission on Human and Peoples’ Rights (ACHPR) and its complementary body, the African Court on Human and Peoples’ Rights (hereafter “African Court”).
The ACHPR was established in 1987 to ensure the protection and promotion of the African Charter on Human and People’s Rights. Like 53 other States, Burundi is party to the African Charter and therefore recognizes the authority of ACHPR decisions. But these decisions are comparable to those delivered by United Nations organs: quasi-judicial and, ultimately, without enforcement mechanisms. Burundi has ignored quasi-judicial decisions from other bodies in the past, and no more than political pressure can be marshalled to push Burundian authorities into action.
The African Court complements the mandate of the ACHPR. It can deliver judgments condemning State parties, if they are found to violate human rights. Unfortunately, the possibility for survivors to bring a case before the African Court is not automatic: Additional formal recognition from the State in question is necessary. Burundian victims – individuals and NGOs – have no access to what is arguably the strongest hope for litigation in the region.
Back channels exist to seize the African Court
In spite of this fact, there is a way to bring a State before the African Court even if it does not recognize its jurisdiction. The African Commission itself may refer a case to the Court, circumventing the impossibility for victims to do it themselves.
TRIAL International has been exploring this possibility and has submitted several cases to the ACHPR which could be eligible for referral to the African Court. The road is long and sinuous: complex legal threshold must be satisfied and, ultimately, the ACHPR holds discretionary power over case referrals. But the endeavor is worth the effort: “To our knowledge, the African Court has never examined a case relating to Burundi” says Head of Burundi activities Pamela Capizzi. “To see a case opening would already be a great step forward for the victims. And if the judges ultimately condemn Burundi, it will add considerable weight to the claims of Burundian and international NGOs denouncing the rampant impunity.”
In the fight against impunity, NGOs have a fundamentally different, and often complementary role to that of institutional or academic actors. How does this complementarity work? And what does it mean for victims’ rights to justice, truth and reparations?
Civil society undeniably plays an important and growing role in the fight against impunity, from denouncing crimes to creating and improving legal frameworks for prosecution and mobilizing the public against the authorities’ inaction. Paradoxically, given they operate on budgets well below those of the “official” actors of international justice, NGOs also have more varied and numerous avenues for action. Here is a brief review.
Gathering evidence and testing alternative procedures
Firstly, let’s examine the role of NGOs in the constitution of cases. In recent years, a new category of non-state actors has emerged, specializing in the gathering of evidence, the documentation of crimes, the collection of testimonies, or even the location of suspects.
The NGO eyeWitness, with whom TRIAL International collaborates, has, for example, developed a smartphone app to record evidence of crimes, all the while ensuring their traceability and admissibility in court.
Secondly, NGOs have the flexibility to draw upon the complementary nature of the legal means of action themselves. The fight against international crimes is not always best served by traditional criminal trials. Civil, administrative or constitutional procedures may be more effective, or simply be the only ones available.
By way of example, think of the administrative customs dispute over the delivery of dual-use goods. The export of suspect chemical components to Syria, despite the international embargo on such components, is a recent case in point.
The rise of universal jurisdiction
The third axis in which NGOs play a great role is the triggering of new domestic cases through universal jurisdiction. This principle has received renewed attention in recent years, mainly as a result of the international community’s inability to provide the slightest judicial response to the horrors committed in Syria. Our Universal Jurisdiction Annual Review (UJAR) lists, for 2018 alone, 150 investigations and 17 trials based on this principle.
In the majority of these cases, it was NGOs that tracked down the suspects, investigated the cases, reported them to the authorities, and often defended the victims at trial. It is not wrong to assert that, without NGOs, universal jurisdiction would have remained an interesting legal concept, whereas today it is one of the greatest legal instruments in the fight against impunity.
Beyond criminal trials
The last axis, perhaps the least developed so far, concerns the complementarity of the different legal claims made by the victims. The fight against impunity is very widely perceived through the prism of criminal trials alone. However, in their interactions with victims, NGOs must frequently meet their expectations in more subtle manners.
Affected persons may well prefer, temporarily or permanently, not to take part in the criminal process… without renouncing their other claims such as truth, reparations, and protection against future violations. NGOs are arguably the first, often with the support of the academic world, to try to promote the extension of the scope of the fight against impunity to legal claims other than the sole right to criminal justice. TRIAL International, for example, is fighting to advance the right to reparations. This is often a neglected but very important aspect for victims, which goes beyond compensation.
We should also think about opening up a new range of action, rarely addressed as yet, aimed at preventing the promotion of a soldier suspected of violations, or at punishing a judge or doctor covering up acts of torture or enforced disappearances.
There are so many other ways of intervening, from public denunciations to amicus curiae, that it would be tedious to go through them all. Suffice it to recall here that NGOs, in the field of combating impunity, work at many levels other than just that of actual cases. Without this fundamental work, it is clear that international criminal justice would be far less effective than it is today.
This op-ed is excerpted from Philip Grant‘s presentation at the Fifth Days of International Criminal Justice at the Université Panthéon-Assas (Paris) on 31 January 2020.
Portraits of volunteers #7
Since 2018, twelve volunteers have taken on the specific mission of translating TRIAL International’s website news. To thank them for their invaluable commitment, the “Portraits of volunteers” series gives them the floor. In this final episode, Marine Bloch looks back on her volunteering and her professional curriculum in criminology.
I have been a volunteer at TRIAL since March 2017. It was a friend from my Master’s program, herself a volunteer at the time, who told me about it. But I already knew the NGO since 2011, through my studies at the University of Geneva. My faculty was actually a stone’s throw away from TRIAL’s office!
From the very start, I was able to state the number of hours I could dedicate to TRIAL. The workload therefore fits very well in my timetable.
Where do you work at the moment?
I currently live in Montreal and work at the International Centre for the Prevention of Crime (ICPC). I also support the coordination of the Network for Exchange and Support for Local Actions, whose mandate is to support and improve local initiatives against bullying, sexual exploitation, street gangs and radicalization.
Originally from Switzerland, I completed my Bachelor’s degree in International Relations at the University of Geneva. It was during an academic exchange at the University of Montreal that I discovered a passion for criminology. I therefore pursued a Masters in Criminology and Security Law at the University of Lausanne.
Before taking up my present job, I interned as an Analyst at the French Centre for the Monitoring of Delinquency and Criminal Responses (Observatoire national de la délinquance et des réponses pénales, or ONDRP), where I specialized in homicides and their statistical classification. I also worked as a community worker with the Official Youth Foundation, a Swiss organization that hosts and supports young adults in difficulty.
On a more personal level, my interests are as eclectic as they are changing. One day an improvised painter, I can be a professional skier the next.
Do you think your volunteer experience could be useful in your career?
My experience as a volunteer translator has already proved a professional asset. In my current position, I sometimes have to translate documents or correct the translations of team members.
Which aspects of TRIAL’s mission are you most interested in?
As first responders, actors in the field are a crucial part of the action chain. Because they are in touch with local populations, they are best placed to assess the cross-cutting nature of local issues. That is why the trainings TRIAL delivers to various actors involved in the fight against impunity (lawyers, prosecutors, journalists and NGOs) seem to me an essential part of its program’s success. Concerted action between local networks and TRIAL International is a great and sustainable set-up.
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