Author: Communication Department

TRIAL International, alongside Foundation United Women and Foundation Lara, welcomes the Government of Republika Srpska’s decision to include victims of war torture in the public call for medical rehabilitation. This move aligns with the Law for Protection of Victims of War Torture and marks a significant step towards proper access to the rights of victims of war crimes.

Previously limited to disabled war veterans and families of fallen soldiers, this decision reflects a commitment to upholding human rights. Adrijana Hanušić Bećirović, Senior Legal Advisor at TRIAL in BiH, emphasizes the importance of this step, especially for victims of conflict-related sexual violence: “Three years ago, in our discussions, we noticed that victims have started articulating the need for medical rehabilitation as the consequences they are suffering due to trauma are becoming more prominent with age. Republika Srpska has made an important step forward in the region and we hope that Federation of Bosnia and Herzegovina, which also included this right in its newly adopted Law for the Protection of Civilian Victims of War, will also ensure implementation in practice without delays.”

The allocation of 500,000 BAM by the Ministry of Labor, War Veterans, and Disabled Persons’ Protection underscores the government’s support for victims. However, it’s crucial to ensure streamlined access to rights without administrative barriers, as highlighted by Gorica Ivić, Executive Director of Foundation United Women: “Gorica Ivić, Executive Director of Foundation United Women from Banja Luka, also welcomed the decision: “We hope that the victims will have an opportunity to use this right without additional administrative hurdles and that the status of victim of war torture will be enough to get treatment in institutions that also offer psychosocial support provided by professionals who have trauma-oriented expertise.”

Recent events have further underscored the need for rehabilitation and improved implementation of the Law for Protection of Victims of War Torture. Radmila Žigić from Foundation Lara emphasizes the importance of simplifying administrative procedures and extending deadlines for status applications: “We hope that access to rights will be obtainable without complicated administrative procedures. Also, we still haven’t lost faith that the deadline for status application will be extended for many victims of conflict-related sexual violence and other forms of torture. We expect that government in the RS will put forth the amendmends to the Law in 2024.”

The Regional Court of Bern-Mittelland has acquitted the authors of a report published by Public Eye and TRIAL International of the charges of “defamation and slander”, following a criminal complaint filed by Kolmar Group AG. Their investigation exposed the Zug-based trader’s involvement in the trade of gasoil from Libya between 2014 and 2015, when the country was in the midst of armed conflict. However, the legal tug-of-war continues: in a civil action in Zug, the company is claiming the unprecedented sum of $1.8 million in damages. These proceedings are emblematic of the growing pressure that journalists and NGOs investigating issues that are of public interest are facing in Switzerland.

© Robbie Vize, Creative Commons

In its ruling made today, the Bern court underlined the solidity and credibility of the investigative journalistic work undertaken by the three authors of the report “Libyan fuel smuggling: a Swiss trader sailing through troubled waters”, published in March 2020 by Public Eye and TRIAL International. The court found that they had fully met their journalistic obligations, relying on numerous sources, documents and experts. It also emphasized that the investigation conducted by the accused, which was done as part of their work for the two NGOs, was in the public interest. Both NGOs and the acquitted individuals welcome this important verdict. It confirms that investigating and exposing the truth is not an offence, but a pillar of our democracy. We remain determined to defend this principle, whatever the obstacles.

The result of over a year long investigation conducted in Switzerland, Malta and Sicily, the report documented the involvement of the Zug-based Kolmar Group AG in the trade of Libyan gasoil between 2014 and 2015, when the country was in the midst of a civil war. In particular, the investigators were able to trace the routes of three oil tankers from the Libyan coast that unloaded their cargo, on twenty-two occasions, into storage tanks rented by the Zug-based trader in Malta. According to documents obtained, these petroleum products were sold by a transnational gasoil smuggling network that misappropriated Libyan gasoil from a refinery controlled by an armed group involved in human rights violations. The subsidized fuel, intended for the local population was transported by Libyan fishing boats to oil tankers in that traveled to Malta.

In May 2020, TRIAL International filed a criminal complaint (“dénonciation pénale”) with the Office of the Attorney General (OAG), followed shortly thereafter by a communication from the Money Laundering Reporting Office Switzerland (MROS) referring to “an identical context”, according to the OAG. A criminal investigation against unknown persons for “suspicion of war crimes by plundering” (art. 264g, para. 1 let. c of the Criminal Code) was opened in November 2020 in connection with these facts. This investigation is still ongoing, as the OAG has recently confirmed.
Kolmar Group AG, which had never responded to the NGOs’ repeated questions and requests for a position statement prior to publication of the report, has since been much more reactive in the legal arena. In September 2023, the trader also filed a civil action for alleged violation of personality against Public Eye and TRIAL International, as well as the authors of the report, with the Zug Cantonal Court, thus massively increasing the pressure. The civil proceedings will continue in 2024 and 2025.

Such proceedings illustrate how, in Switzerland too, the courts are increasingly called upon to judge cases in which plaintiffs seek to have publications on subjects of public interest withdrawn. Other emblematic cases are likely to come before the courts, such as the forthcoming trial between SWISSAID and the Ticino gold refiner Valcambi. It is in response to this trend that the Swiss Alliance against SLAPPs was created, to raise awareness of the negative impact of these practices, which are extremely dangerous for freedom of expression and democracy.

On 6 November, three French investigative judges indicted former Congolese warlord Roger Lumbala Tshitenga for his alleged complicity in and conspiracy to commit crimes against humanity including murder, torture, rape, pillage and enslavement, including sexual slavery,  in the Democratic Republic of Congo (DRC) between 2002 and 2003. This  indictment is a historic step towards justice for survivors of mass atrocities in the DRC, The Clooney Foundation for Justice (CFJ), TRIAL International (TRIAL), Minority Rights Group (MRG), and Justice Plus said today.

This decision paves the way to the trial of Lumbala before the French Criminal court on charges of complicity in and conspiracy to commit crimes against humanity. Roger Lumbala was arrested in Paris in January 2021. Lumbala’s armed group, the Congolese Rally for National Democracy (RCD-N), and its allies allegedly committed these atrocities during a military operation called “Erasing the Board” in the provinces of North Kivu and Ituri. The operation’s aim was to take control of resource-rich areas in the eastern part of the country. Lumbala allegedly ordered some of the crimes and aided and abetted the RCD-N troops by providing supplies and by letting the soldiers under his authority violently attack the civilian population . Lumbala was later the country’s Minister of Commerce between 2003 and 2005.

In recent years, Congolese courts have made important strides in investigating and prosecuting grave crimes committed in the DRC in the last decade, but total impunity remains for the crimes committed before 2003.

Moreover, while the Second Congo War (1998-2003) claimed over one million lives, the DRC has taken no concrete serious steps to investigate its atrocities and hold those responsible to account. But this indictment means that there is sufficient evidence to try Roger Lumbala for complicity in crimes against humanity and conspiracy to commit crimes against humanity. The trial will be held in Paris, probably in 2025 .

“This trial would represent an unprecedented opportunity for Congolese victims, survivors and their communities,” said Daniele Perissi, Head of TRIAL’s Great Lakes program. “It will be the first-ever case before a domestic tribunal adjudicating the mass atrocities committed in the DRC during those years. It shows that there is nowhere to hide for perpetrators of such atrocities.”

Today, the security situation in the provinces of North Kivu and Ituri is alarming since the Congolese government has declared a state of siege to fight against the multiple armed groups occupying parts of the provinces. This military lockdown means the families of the victims and survivors of the RCD-N’s atrocities — in particular minorities and indigenous peoples, as well as survivors of sexual and gender-based violence — faced enormous obstacles and grave danger.

“The remarkable bravery exhibited by the survivors and their unwavering commitment to seeking justice has been the driving force in bringing this infamous militia leader to trial,” said Yasmine Chubin, the Legal Advocacy Director at CFJ’s The Docket initiative. “The evidence provided by the survivors, including their testimonies before the investigative judge, has played a pivotal role in propelling the investigation forward, ultimately culminating in the indictment.”

More than 20 survivors made the journey to France to testify in the investigation phase and were admitted to formally participate in the upcoming trial as civil parties. CFJ, TRIAL, MRG, and the DRC-based NGO Justice Plus, also all admitted as civil parties, have collaborated throughout the investigation to identify and support Congolese communities, victims, and survivors who are calling for justice and reparations for the crimes they suffered and willing to share their account with French judicial authorities.

Taking Lumbala to trial in France is possible because of the principle of universal jurisdiction, which allows countries to prosecute the gravest crimes regardless of where they were committed or of the nationality of the perpetrator or the victims. In France, universal jurisdiction can be applied to suspects who are residents and present in the country, even if they are foreign nationals. Lumbala is a long-time resident of France, where he had also sought asylum. Lumbala’s residence in France is what has given the French justice system grounds to investigate the crimes committed in the DRC.

This is the first universal jurisdiction trial for mass atrocities committed in the DRC by a Congolese national and one of few cases pending worldwide against a Congolese official who held a rank as high as minister.

“This is a huge moment for the indigenous Bambuti people who have suffered atrocities at the hands of the RCD-N; their voices will finally be heard on an international stage,” said Samuel Ade Ndasi, MRG Litigation and Advocacy Officer. “This decision sends a clear message that power and status cannot shield perpetrators from justice, no matter how much time has passed.”

“Lumbala’s trial in France represents the first glimmer of hope for Congolese victims of the Second Congo War who have been waiting for justice for over two decades”, said Xavier Macky, Director of Justice Plus. “It sends a strong signal to the perpetrators and will hopefully support the Congolese government’s implementation of its transitional justice strategy over past crimes in order to deliver truth, justice, and reparations to its population.”

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CFJ’s Docket initiative pursues perpetrators of international crimes and supports survivors seeking justice through the courts. In this case, CFJ is representing several victims, including survivors who have suffered rape and other sexual violence.

TRIAL has been working in the DRC for ten years with local offices in South Kivu and Kasai, providing support to victims of international crimes, collaborating with Congolese justice actors, and taking part in dozens of local trials.

MRG has been working to secure rights of minorities and indigenous peoples for more than 50 years. In partnership with Réseau des Associations Autochtones Pygmées du Congo (RAPY), in 2004 it published “Erasing the Board”, a crucial report on human rights violations against indigenous Bambuti in the Democratic Republic of Congo.

Justice Plus has been promoting human rights and good governance in the DRC for more than 25 years. In this case, Justice Plus has identified survivors in the DRC and supported them throughout their journey in France.

[For more information, please see a Q&A here]

During September and October 2023, TRIAL International trained hundreds of newly recruited magistrates in the investigation and prosecution of international crimes. This training follows the recruitment of 5,000 magistrates at the end of 2022, aimed at filling staffing gaps in the Congolese justice system.

Initial training for new Congolese magistrates

July 18, 2023 saw the start of the 3-month initial training offered by the Higher Council of the Judiciary (CSM), through the National Legal Training Institute (INAFORJ), to the first batch of 2,500 civilian and military magistrates recruited at the end of 2022 and due to take up their duties by the end of 2023. In this context, TRIAL International collaborated with the CSM and INAFORJ to include a 3-day session on the investigation and prosecution of international crimes in the curriculum of this initial training. TRIAL International ran this session during September and October 2023 in Kinshasa, Bukavu and Lubumbashi, the three locations the new magistrates could choose to attend their training.

Skills acquired in the fight against impunity for serious crimes

TRIAL International’s training session enabled magistrates to acquire the basic skills needed to investigate and prosecute perpetrators of international crimes. An analysis of Congolese legislation and the most recent national and international case law enabled participants to identify the legal elements of war crimes, crimes against humanity and genocide. The applicable criminal procedure was examined, as well as the admissibility and evaluation of evidence. Magistrates discussed the latest developments in the repression of international crimes in the DRC, as well as the challenges they will face in the field.

Strengthening the human resources of the Congolese justice system

Prior to recruitment at the end of 2022, the Congolese justice system was severely understaffed. Indeed, there were no more than 3,500 active magistrates in the country, i.e. four magistrates for some 100,000 people. This shortage was particularly acute in the country’s provincial areas, as working conditions were less complex in the cities. The recruitment of 5,000 civilian and military magistrates by the end of 2022 and their announced deployment between the end of 2023 and the year 2024 will help to remedy these shortages, in line with the objectives of the National Justice Reform Policy. It will be essential to further train these new recruits beyond their initial training, and to provide them with adequate financial resources as well as the equipment and logistics they need to carry out quality work and enforce justice for the benefit of the Congolese population.

The initial training program for magistrates is organized by the CSM through INAFORJ, with the support of the UNDP and other technical and financial partners of the Congolese government in the field of justice, including TRIAL International.

On Friday August 25, 2023, the Court of Appeal of Kasai-Central convicted a militiaman of crimes against humanity for the murder and beheading of three education inspectors, their driver and an advisor to the provincial minister. These atrocities were perpetrated at the height of the Kamuina Nsapu armed group’s insurrection in April 2017. This is one of the first trials for serious crimes held by the civil justice system in the country.

© TRIAL International

JURISDICTION (UNEVENLY) SHARED BETWEEN MILITARY AND CIVILIAN JUSTICE

Until 2013, the fight against impunity for international crimes in the DRC was placed exclusively in the hands of the military courts. According to international standards on human rights and the administration of justice, investigations and prosecutions of serious human rights violations should be carried out by the ordinary courts, due to the lack of independence and the political and hierarchical interference from which the military judiciary can suffer.

In 2013, the Congolese parliament passed a law extending jurisdiction over serious crimes to civil tribunals, in particular to the Courts of Appeal. Despite this legislation, civil courts have not yet taken up these cases, for which the military justice system continues to have a monopoly. Since 2013, more than 50 decisions have been rendered by the military courts whereas ordinary tribunals have only adjudicated two cases.

A MUCH-NEEDED BOOST FOR CIVIL COURTS

Faced with this lethargy, in recent years several partners of the Congolese justice system have systematically integrated civil magistrates into capacity-building activities. By the end of 2022, the Congolese government recruited 5,000 new magistrates who will strengthen the resources of the judiciary in the years to come.

In coordination with its partners, TRIAL International has been strengthening the technical and operational capacities of civil courts in particularly complex cases such as international crimes.

“The Kasai-Central Court of Appeal has demonstrated that the ordinary justice system has the capacity to shed light on serious crimes and sanction their perpetrators,” explains Guy Mushiata, TRIAL International’s national coordinator in the DRC. “We hope that this verdict paves the way for the civil judiciary to play its full role in the fight against impunity”.

AN EMBLEMATIC CASE IN KASAI-CENTRAL

Between 2016 and 2019, the Kasai region experienced a violent conflict between state security forces and numerous militias belonging to the Kamuina Nsapu insurgency. The civilian population, caught between the armed factions, suffered numerous atrocities, most of which are still unpunished. The Kasai-Central Court of Appeal was faced with an infamous case from this period. On April 30, 2017, a team of education inspectors charged with supervising the national baccalaureate exam had been intercepted in the locality of Bayamba (Kazumba territory, around 120 km from the provincial capital Kananga) at a blockade imposed by militiamen led by self-proclaimed general Kabue Ditunga. Three inspectors, the advisor to the provincial Minister of Education and their driver were killed and decapitated, their bodies never recovered.^

From August 20, 2023, the Court of Appeal dealt with the case in a mobile court trial held in Kazumba territory, where it heard the defendant Mulumba Kamuatoka Thomas, the victims’ families and several witnesses to the crimes. The court also viewed a video in which the defendant is seen celebrating the beheading of the inspectors with the other militiamen of the group.

At the end of the trial, the defendant was convicted of murder as a crime against humanity and of participation in an insurrectionary movement. The court awarded reparations of 100,000 US dollars to each of the five families of the victims who took part in the trial represented by a collective of lawyers supported by TRIAL International. The militiaman was sentenced to the death penalty. “The qualification of crimes against humanity clearly shows the seriousness of the acts perpetrated. However, we are concerned about the use of the death penalty as a punishment. Even if it is not applied in the DRC, TRIAL International considers the death penalty to be a violation of the right to life, as well as the right not to be subjected to cruel, inhuman or degrading treatment, a right recognized for every individual, regardless of the crimes committed”, emphasizes Daniele Perissi, Head of the Great Lakes Program.

At the UN Human Rights Council’s 51^st session, in October 2022, the Council extended the mandate of the Special Rapporteur on the situation of human rights in Burundi, which it established a year earlier, at its 48^th session. It expressed deep concern about ongoing human rights violations and abuses in Burundi and regretted the Burundian Government’s lack of cooperation with human rights bodies and mechanisms.

© Ian McKellar/Creative Commons

As serious human rights violations persist in Burundi and the Government has failed to hold per­petrators accountable or take the concerns raised by Burundian and international actors seriously, the Coun­cil should not relax its scrutiny. At its 54^th session (11 September-13 October 2023), it should extend the Special Rapporteur’s mandate for an additional year.

Additionally, the Human Rights Council should ensure that the Special Rapporteur is able to fulfil his man­date, as per resolution 48/16, to, inter alia, “monitor the situation of human rights in Bu­rundi, […] make recommen­da­tions for its improvement, [and] collect, examine and assess infor­ma­tion from all relevant stake­holders […], building upon the work of the Commission of Inquiry.” To fulfil these mo­nitoring and docu­men­tation functions, the Special Rapporteur requires adequate funding for at least one additional staff member, which the UN Secretary-Gene­ral should provide to him. (…)

In light of the ongoing grave human rights violations and abuses, the absence of sus­tai­na­ble progress on key human rights issues of con­­­­cern, including civic space, the risk of an escalation of violations, particularly ahead of the legislative elections in 2025 and presidential elections in 2027, concerns regarding the lack of independence of the National Independent Human Rights Commission (CNIDH), and the Govern­ment’s continued refusal to co­operate with the UN and regional human rights mechanisms, we believe that the Council should maintain its scrutiny of Burundi’s human rights si­tu­ation. (…)

At its upcoming 54^th session, the Council should adopt a resolution that:

• Extends the mandate of the Special Rapporteur on the situation of hu­man rights in Burundi for an additional year;
• Requests the United Nations Secretary-Gene­ral to provide the Special Rapporteur with the assistance and all resources necessary to fulfil his mandate
• Reaffirms that all States Members of the Human Rights Council should uphold the highest stan­­­dards in the promotion and protection of human rights, and urges all States that are can­di­­dates for the Human Rights Council Membership, including Burundi, to be mindful of these standards;
• Urges the Government of Burundi to fulfil its obligations under national law and international human rights law and to protect civic space, by respecting the rights to freedom of opinion and expression, peaceful assembly and association, upholding the rights of Human Rights Defenders, and crea­ting a safe envi­ron­ment for civil society organisations;
• Urges the Government of Burundi to cooperate fully with the Special Rapporteur, including by granting him access to the country and by providing him with all the information necessary to properly fulfil the mandate;
• Urges the Government of Burundi to constructively cooperate with the Office of the United Nations High Commissioner for Human Rights, in particular its regional office for Central Africa, and to present a timeline for the reopening of its country office in Burundi; and
• Urges the Government of Burundi to resume meaningful cooperation with African human rights bodies and me­cha­nisms, including the African Com­mission on Human and Peoples’ Rights.

In a ruling handed down on April 12, 2023, a Congolese court has, for the first time, exempted victims from the payment of an application fee which usually conditions their participation in the trial as civil parties. This decision, the first enforcement of a law passed in December 2022, represents a major step forward in improving access to justice for victims of mass crimes in the Democratic Republic of Congo.

© TRIAL International

A NEW LAW ON THE PROTECTION AND REPARATION OF VICTIMS OF SERIOUS CRIMES

The law promulgated on December 26, 2022, on the protection and reparation of victims of war crimes and crimes against humanity, has made it possible to abolish the application – as well as other court fees for these victims. This provision found its first concrete application in the judgment of April 12, 2023. It should be possible to invoke it in all future proceedings of this kind, thus eliminating one of the obstacles to victims’ access to justice.

Under Congolese criminal procedure rules, anyone wishing to take part in a criminal trial and thus have a chance of obtaining compensation for the crimes they have suffered must pay an initial fee to the court. This obligation is designed to discourage unfounded or abusive claims. However, victims of international crimes have often lost everything and find themselves in an extremely precarious financial situation. In most cases, it is simply impossible for them to mobilize these resources, which are essential if they are to participate in the trial and eventually obtain justice for the crimes they suffered.

ACCESS TO JUSTICE, A PRIORITY FOR THE CONGOLESE GOVERNMENT

Improving access to justice, particularly for the most disadvantaged, is one of the four priority objectives defined by the National Justice Reform Policy adopted by the Congolese government in 2017. In addition to a lack of information about their rights, the physical remoteness of jurisdictions and other structural dysfunctions of the Congolese justice system, victims encounter two financial obstacles when seeking justice: lawyers’ fees and procedural costs.

“By abolishing these procedural fees, the Kananga military court’s decision paves the way for many other victims of mass crimes in the DRC who remain in need of justice,” explains Daniele Perissi, TRIAL International’s Great Lakes Program Manager. “We hope that the Congolese government will ramp up its efforts to rapidly implement the other provisions of the December 2022 law, including the start of operations of the National Victims’ Reparations Fund.”

A NEW CONVICTION OF KAMUINA NSAPU MILITIAMEN

In its decision of April 12, 2013, the court found two new members of the Kamuina Nsapu militia led by Nsumbu Katende guilty of war crimes by murder, torture, hostage-taking, looting and destruction of property. They were sentenced to life imprisonment. The court awarded financial reparations ranging from $1,000 to $40,000 to the victims of these crimes who took part in the trial, represented by a collective of lawyers that TRIAL International supported.

In 2024, the Kasai High Military Court confirmed the defendants’ convictions on appeal, reducing their life sentences to 20, 15 and 10 years’ imprisonment respectively. It confirmed the charges of war crimes, the four crimes of murder, destruction of property, pillaging and hostage-taking, but did not uphold the crime of torture.

(Geneva, 16 August 2023) – The Swiss Federal Criminal Court (FCC) has ordered the Federal Office of Justice (FOJ) to issue an international arrest warrant for former Vice President Rifaat al-Assad in connection with the proceedings he has been facing since 2013 for his alleged role in the massive war crimes committed in the city of Hama in February 1982. TRIAL International calls on the Swiss authorities to swiftly indict and bring to trial the man nicknamed the “Butcher of Hama”, now aged 85.

After a lengthy investigation, criticized by TRIAL International for its delay, the Office of the Attorney General (OAG) finally issued an international arrest warrant for Mr. al-Assad in November 2021. At that time, Mr. al-Assad had just fled France, where he was a resident and had been sentenced to four years of imprisonment for various economic offences. In December 2021, however, the FOJ refused to issue the international arrest warrant.

In a ruling dated 19 July 2022 – kept confidential until now to ensure the effectiveness of the measure – the FCC ordered the FOJ to issue the arrest warrant for Mr. al-Assad, confirming the competence of the Swiss authorities to prosecute him and request his extradition to Switzerland.

For Benoit Meystre, legal advisor at TRIAL International, “It is to be welcomed that the prosecuting authorities have finally decided to request Mr. al-Assad’s extradition, although it is regrettable that we had to wait until his return to Syria before demanding he appear before the Swiss courts”.

As a reminder, TRIAL International filed a criminal complaint before the OAG against Rifaat al-Assad, uncle of current dictator Bashar al-Assad, in December 2013. The “Butcher of Hama” has since been under investigation for his alleged role in the massacres committed in February 1982. The Syrian Defense Forces, commanded by Mr. al-Assad, were guilty of executions, enforced disappearances, rape and torture on an unimaginable scale. According to various sources, between 10’000 and 40’000 people were killed in the span of only three weeks.

More than 40 years after the Hama massacre, TRIAL International believes that it is more necessary than ever that the OAG investigation be closed as soon as possible, so that a trial can be held in the near future. Given Mr. al-Assad’s advanced age, any further delay risks depriving the victims of a trial aimed at bringing them justice.

Read the FCC’s decision in French here.

(Sarajevo, August 1^st 2023) Three decades after the war in Bosnia and Herzegovina, the civilian victims of war finally got to witness a social and legal turning point in the society after a Proposal of the Law on the Protection of Civilian Victims of War in Federation of BiH was adopted. Children born of wartime rape were recognized as a special category with equal rights in the society. In addition, the rights of civilian victims of war, including victims of conflict-related sexual violence, have been defined and bolstered.

The adoption of this Law once again confirmed that the government needs to be in touch with real needs of all members of the society. Civil society organizations worked hard on this Proposal, together with victims’ associations, thus proving that cooperation of all pillars of society is needed to achieve results suited for a functioning democratic society.

TRIAL International was among the organizations that worked on the text of the Law. Ajna Mahmić, Legal Advisor at TRIAL International in BiH, commented on this historic step:

“This Law is a result of our joint effort towards recognizing and addressing the suffering of civilian victims of war in Federation of BiH. In addition to advancing the scale of the rights for survivors, this Law also sets strong foundations for encouraging empathy, understanding and reconciliation within our society. Although we waited for this Law for so many years, and even though it has its imperfections, we are looking forward to the changes it will bring.”

In addition to the recognition of status for children born of war, specific rights, such as co-funding of education and priority when enrolling into state higher education institutions, were included in the Law. A similar law was passed in Brčko District last year but had only granted a symbolic recognition of the status.

Alen Muhić, from the Forgotten Children of War association, welcomed the Law and shared his personal experience: “For me this Law is especially important. The first time I spoke up I was 9, and today I am 30 and a father to two boys. I’m glad that the day has come for representatives of the government to hear our voice, the voice of justice and equality. The moment the state stands next to you and shows you that it supports you with its laws and that you are an equal member of society, the fight against social stigma and discrimination becomes easier and more effective.” He added that we cannot have a system that supports war criminals and neglects the victims. “My sons cannot inherit this social stigma.”

Ajna Jusić, the President of Forgotten Children of War association, thank everyone for support, stating that the battle for rights of children born of war was long, but that they persevered. Last year, the government of Brčko District also adopted a similar Law, which recognized the rights of children born of wartime rape, but without any concrete benefits, such as medical care and education, which was addressed in FBiH Law.

In addition to the aforementioned, the Law also introduces some new benefits for civilian victims of war in FBiH, such as the right to priority medical care, including medical spa rehabilitation. Midheta Kaloper, President of the victims’ association Foča 92-95 welcomed these changes and thanked everyone who worked on the Proposal of the Law. “The fact is that we waited for too long, for thirty years. I am sorry that many of our heroines did not live to see this Law and get the rights that they deserved. I hope that the government will stop looking at us as social cases and that the rights outlined in the Law will be respected throughout the entire Federation of BiH.

The Law on the Protection of Civilian Victims of War comes into force on January 1^st of 2024 in FBiH.

On May 15^th 2023, the Military Tribunal of Uvira sentenced Munyololo Mbao, alias Ndarumanga, former leader of a faction of the Raia Mutomboki armed group in the Democratic Republic of Congo (DRC), to life imprisonment for crimes against humanity. Among the charges confirmed by the court is the crime of forced pregnancy, a world first before a national court.

© Trial International

The crime of forced pregnancy: a historic precedent before a national court

Despite its inclusion in the list of war crimes and crimes against humanity in the Rome Statute of the International Criminal Court (ICC) in 1998, it was not until 2021 that the crime of forced pregnancy was prosecuted by the ICC in the case of Dominic Ongwen, a former Lord’s Resistance Army fighter in northern Uganda.

Given the prevalence of reproductive violence in conflict settings, the specificity of the crime of forced pregnancy is its focus on women’s right to personal as well as reproductive autonomy and the right to a family. The definition of the crime requires the unlawful confinement of one or more women, forcibly made pregnant, with the specific intent of altering the ethnic composition of a population or committing other grave violations of international law.

Three women who suffered this fate were heard during the trial. “After I was kidnapped by Ndarumanga’s men in 2012 when I was a minor, I was imprisoned for two years. Ndarumanga himself used me as a sex slave and to cook food. He forced me to have sex many times and made me pregnant twice. I was abused by him and his men when I tried to escape and was forced to give birth to my first child in captivity”, a victim testified.

The Tribunal found that during the captivity of these three women, Ndarumanga intended to commit other serious crimes against them, including rape. This was sufficient to prove this crime against humanity, even in the absence of the intent to change the ethnic composition of a population.

“It was important for us to also consider the consequences of the crime on children born of rape and forced pregnancy. These children suffer particular harm that must be taken into account in order for them to be recognized as direct victims, so that the justice system is able to grant them adequate reparations, including measures to ensure access to education and appropriate socio-economic, medical and psychological support,” adds Chiara Gabriele, TRIAL International’s Senior Legal Advisor in the DRC.

This is the first time a national criminal court has recognized the crime of forced pregnancy as an international crime.

Justice for the victims at the end of the trial

In order to try the crimes committed by Ndarumanga, the Uvira Military Tribunal held a mobile court hearing in Mwenga, close to the 121 victims who had filed as civil parties in the case. The trial took place from May 8 to 15, 2023, and allowed the judges to hear from dozens of victims and witnesses to the events.

At the end of the trial, the court found Ndarumanga responsible for crimes against humanity by murder, torture, rape, sexual slavery, forced pregnancy, imprisonment and other inhumane acts. The warlord was sentenced to life in prison and financial compensation was awarded to all victims. The Congolese state has not been recognized as liable for the crimes in question.

TRIAL International supported the documentation of the crimes committed by Ndarumanga and accompanied the lawyers of the civil parties in the proceedings.

“We welcome this favourable verdict. Victims’ rights have been affirmed by the conviction of Ndarumanga. We believe that the Congolese State should have also been sanctioned jointly with the defendant for failing to protect its population during the long period of commission of the crimes. Nevertheless, this case represents a very important step forward in the fight against conflict-related sexual violence by recognizing the crime of forced pregnancy,” stated Daniele Perissi, TRIAL International’s DRC Program Manager.

Civilian population victimized by systematic crimes for more than 10 years

The Raia Mutomboki, or “angry citizens” in Swahili, are local self-defense movements that have structured themselves into armed groups and operate in South Kivu province. These groups began to grow in 2011 in response to attacks on the population by the Rwandan militia FDLR (Forces démocratiques pour la libération du Rwanda), facilitated by a security vacuum caused by the restructuring of the Congolese army.

The “Ndarumanga” faction of the Raia Mutomboki fought for control of several areas in the territories of Walungu and Shabunda by carrying out repeated armed attacks between 2012 and 2021, sometimes against other armed groups present in the region and other times in coalition with other armed groups against the Congolese army. During these attacks, numerous abuses were committed against the civilian population.

Following his arrest in November 2021, Ndarumanga’s crimes were the subject of a judicial investigation by the military prosecutor that led to his indictment in August 2022 for crimes against humanity.

TRIAL International’s work on this case is conducted within the framework of the South Kivu International Criminal Justice Task Force, an informal network of international actors who collaborate to support the work of Congolese courts in the investigation and prosecution of mass crimes in the DRC.

At the initiative of Member of Parliamentary Assembly of Bosnia and Herzegovina Saša Magazinović and with the support of TRIAL International in BiH, a proposal to abolish the practice of buying out under one year-long prison sentences in war crime cases has been referred to the Parliamentary Assembly of BiH.

© Pavel Danilyuk

“A recently published investigative article once again directed the attention of the public to this problem and highlighted the fact that cases like these also happen in front of Court of Bosnia and Herzegovina. In the past five years, eight convicted war criminals, whose sentences were up to one year-long, replaced their prison sentence with a fine,” stated Saša Magazinović.

In July of 2020, United Nations Committee on the Elimination of Discrimination against Women (UNCEDAW) issued a decision against BiH, in which they, among other things, asked the country to ensure that convicted war criminals are not exempted from sanctions through legislative means, including lowering of prison sentences and replacing them with monetary fines. According to the Criminal Law of BiH, a day in prison can currently be replaced with a 100 BAM (around 50 EUR) fine. The same amount is prescribed by the Criminal Law of the Federation of BiH and Brčko District, while the Criminal Code of Republika Srpska states that one day in prison can be exchanged for 50 BAM (around 25 EUR) when prison sentences are less than 12 months long.

“TRIAL International welcomes this proposal and hopes for a positive answer from the Parliamentary Assembly. For many years, the professional community has emphasized the need to abolish the practice of replacing prison sentences with fines in cases of war crimes. Such a step forward would lead to the end of a practice that is neither fair nor moral, and would align with the purpose of punishment, which is reflected in the social condemnation of war crimes and aims to provide satisfaction to the victims of these crimes,” stated Adrijana Hanušić-Bećirović, senior legal advisor of TRIAL International.

Bosnia and Herzegovina’s Parliamentary Assembly will debate the proposal during its upcoming session. These changes, if adopted, would not require funding from BiH’s institutions, especially considering the fact that these would not lead to further spending.

TRIAL International wishes to submit a Public Comment to the Oversight Board replying to the following issue: How Meta should approach preserving content depicting potential war crimes, in relation to case number 2023-004-FB-MR, referred to the Board by Meta in March 2023, and concerning the “Armenian prisoner of war video”

© TRIAL International

Public Comment submitted by TRIAL International 

TRIAL International strongly believes in the importance of preserving content depicting potential international crimes in order to facilitate ongoing and future investigations and prosecutions. Taking into account the specific facts of the case, which include potential acts of torture and other human rights violations, TRIAL International wishes to bring to the attention of the Board the following general recommendations:

• Meta should develop and implement a specific policy on preserving and archiving content depicting potential crimes under international law – i.e. gross violations of international human rights law and serious violations of international humanitarian law. Meta policy should not only refer to war crimes, as mentioned in the Oversight Board question, but encompass also content that might be relevant for the other core crimes codified in the Rome Statute of the International Criminal Court (ICC), i.e. genocide, crimes against humanity and aggression. Moreover, pursuant to international law, this list should also include the crimes of torture, enforced disappearance, extrajudicial execution, and slavery, even when committed as stand-alone crimes and according to the definitions provided in the relevant international legal instruments.
• Meta policy must be in accordance with, and informed by, relevant principles of international human rights law, international humanitarian law – in case of a link to an armed conflict –, international criminal law and any other bodies of law applicable to the situation at hand, including relevant privacy laws and data protection regulations. The policy should be applicable to all the contexts where Meta operates and international crimes are allegedly being committed. It should not be the object of a specific external request but be applied automatically in an independent and impartial manner.
• Meta policy must provide clarity over criteria of identification, removal and archiving of relevant content depicting potential international crimes and, where appropriate, its supply to judicial authorities or any person or group with a legitimate interest in such contents. Although the removal of certain type of content has important reasons – including allowing Meta to protect users, not facilitating the commission or repetition of violent acts and preventing (re)traumatization – permanent deletion by the company might result in the loss of important evidence. Therefore, TRIAL International joins other human rights organizations calling on Meta to timely preserve content depicting international crimes and all information associated with the said content, including metadata – retaining chain of custody.
• Following recommendations made by multiple actors, including human rights organizations, Meta should help develop or participate to digital evidence lockers or other types of archiving mechanisms preserving potential evidence of international crimes for investigation and prosecution purposes. Those mechanisms must be in accordance with human rights, privacy laws and other applicable data protection regulations.
• In preserving the relevant content, it is necessary to bear in mind that prosecution of international crimes often happens several years after the crimes have been committed and can take place outside the country of commission, for instance pursuant to the principle of universal jurisdiction. Therefore, a number of national prosecuting authorities might open investigations over crimes committed in those contexts. Moreover, international mechanisms, permanent or ad-hoc, might be created to deal with specific situations involving the commission of international crimes, including investigative (such as UN Commissions of Inquiry, Fact Finding Missions, Independent Investigative Mechanisms etc.), judicial (such as international and hybrid Courts and Tribunals) and quasi-judicial (such as Truth Commissions and other transitional justice institutions) mechanisms. Considering the increasing importance of open source gathered content in those proceedings (see for instance the Arrest Warrant in the al-Werfalli case at the ICC, largely based on open source evidence), it is fundamental that Meta not only responds to specific requests, but proactively collaborates with law enforcement agencies, in accordance with human rights standards, and the different international justice mechanisms, including those with the specific mandate to collect potential evidence of the commission of international crimes.
• Moreover, Meta should engage with civil society organizations documenting international crimes and gross human rights violations in an optic of collaboration. Meta should provide those organizations with a focal point in order for them to request specific content to be preserved if needed and/or access to specific archived content – in accordance with applicable laws and subject to specific conditions and purposes. The collaboration might be mutually beneficial as civil society organizations could share relevant information alerting Meta over situations of potential international crimes that might require specific attention.

Conclusions

In conclusion, TRIAL International recommends that Meta approaches the preservation of content depicting potential international crimes by:

• Implementing an independent and impartial policy, in accordance with, and informed by, applicable laws – including international human rights, humanitarian and criminal law;
• Being transparent over criteria of identification, removal, archiving of relevant content and its supply as potential evidence;
• Establishing or participating to independent mechanisms preserving potential evidence of international crimes for sharing purposes with relevant authorities and dealing with requests of access to, and supply of, the relevant contents;
• Proactively collaborating with law enforcement agencies and international justice mechanisms;
• Engaging in a mutually beneficial cooperation with civil society organizations documenting international crimes.

About TRIAL International

TRIAL International is a non-governmental organization fighting impunity for international crimes and supporting victims in their quest for justice.

TRIAL International takes an innovative approach to the law, paving the way to justice for survivors of unspeakable sufferings. The organization provides legal assistance, investigates and litigates cases, develops local capacity and pushes the human rights agenda forward. Over the past 20 years, TRIAL International has represented over 6,500 victims before national, regional and international bodies and trained more than 2,400 lawyers, human rights defenders, judicial actors, journalists and members of civil society on international human rights protection mechanisms, victim representation and the investigation and prosecution of international crimes.

On March 1, 2023, three militiamen from the Raia Mutomboki Bralima armed group were convicted by the Military Tribunal of Bukavu (South Kivu province) of crimes against humanity. The three defendants were sentenced to between ten and twenty years in prison for murder, rape, sexual slavery, torture and other inhumane acts.

The court also condemned them to pay reparations ranging from 1’700 to 4’000 USD to the twenty victims represented at the trial. The Congolese State was found responsible and was ordered to pay for all the psychological and medical support required by victims still suffering from the consequences of the aforementioned acts.

© TRIAL International/Daniel Perissi

The Raia Mutomboki in South Kivu

The Raia Mutomboki are local self-defense movements organized into armed groups operating in eastern DRC, particularly in South Kivu province. These groups developed between 2011 and 2012 in response to the takeover of mining centers and attacks on the population by the Rwandan militia FDLR (Democratic Forces for the Liberation of Rwanda) that were facilitated by a security vacuum caused by the reorganizing of the Congolese Army.

The expansion of these self-defense movements attracted members of the political and military elite. Several national army commanders have defected to join them and have contributed to their development by recruiting local youth and taking control of major mining concessions and other natural resources.

Several dozen Raia Mutomboki groups have operated in South Kivu in recent years. Coalitions have sometimes formed but were short-lived as each group has its own structure and ambitions.

Repeated attacks between 2017 and 2021

In 2016, the Nindja region in the territory of Kabare experienced political tensions following the death of its local traditional chief and the struggle for his succession. The Raia Mutomboki Bralima group decided to get involved in the conflict by supporting one of the contenders for the position.

During the years 2017 to 2021, the militia launched repeated attacks against the civilian population of multiple villages in the territory of Kabare. During these attacks, the militia stripped all victims captured, burned the population’s houses, looted their livestock, abducted women and girls who were raped and enslaved.

The judicial process

Local NGOs had documented the crimes committed by the Bralima group and other militias operating in the same territory and had submitted criminal complaints to the justice authorities. Because state forces were not stationed in these areas, the individuals responsible for these crimes were only arrested after intense clashes and a collective surrender of several militiamen to the local base of the UN peacekeeping mission in DRC (MONUSCO) in 2021.

Of those who surrendered, three individuals were identified as active fighters belonging to the Bralima group and were recognized by the victims as being among those directly responsible for the crimes. Following additional investigations conducted between 2022 and early 2023, the prosecuting authorities sent the three defendants to trial that was held by mobile court in Walungu in February.

TRIAL International supported the Congolese NGO that documented the crimes and supported the victims so that they could participate in the trial, as well as coordinated the work of the lawyers’ collective that represented the victims as civil parties throughout the judicial process.

“The victims’ lawyers, supported by TRIAL International, obtained the separation of two ongoing judicial proceedings against two different factions of the Raia Mutomboki militia. This facilitated the corroboration of the criminal responsibility of the three defendants who were members of the Bralima armed group while establishing the responsibility of the Congolese state for not preventing the commission of crimes in this part of the national territory. We will work to ensure that the crimes committed by other factions of the Raia Mutomboki movement are brought to justice in accordance with the law,” said Ghislaine Bisimwa, TRIAL International’s legal advisor in the DRC.

This verdict comes in the wake of other trials conducted by the Congolese justice system against Raia Mutomboki leaders in recent years, including the Kokodikoko case in 2019 and the Hamakombo case in 2020. There are several ongoing proceedings involving other Raia Mutomboki groups.

TRIAL International’s work on this case is conducted within the framework of the South Kivu International Criminal Justice Task Force, an informal network of international actors who collaborate to support the work of Congolese courts in the investigation and prosecution of mass crimes in the DRC.

In the last five years, eight individuals sentenced to one-year imprisonment for war crimes replaced their sentences with a fine. Three judgments were pronounced and decisions on replacement with a fine were made by the Court of Bosnia and Herzegovina (BiH), two by the Cantonal Courts in Zenica and Bihać each, and one by the Basic Court in Brčko District. Eight individuals convicted of war crimes therefore bought their freedom for BAM 292,000 – or BAM 36,500 per person, which was made possible by the existing criminal codes.

In the three judgments of the Court of BiH, the following indviduals were sentenced to one year in prison: Sead Velagić, as co-perpetrator of inhumane treatment of two prisoners at the “Ivan Goran Kovačić” Elementary School in Livno; Miroslav Perić, for inhumane treatment of a minor prisoner of the “Vojno” camp near Mostar; and Goran Pavković, who as an accomplice participated in the torture of the victims by harming their naked bodies with an electric baton, beating them with his legs and hands, as well as with a baton on all over their bodies,  for crimes against prisoners of war in Prozor. The three men bought out their prison sentences.

Both the Cantonal Courts in Bihać and Zenica found that a one-year sentence, which can be replaced with a fine, is appropriate for war crimes against the civilian population and war crimes against prisoners of war. The court in Zenica sentenced Atif Krkalić to one year in prison for abusing civilians in the Police Station in Tešanj and Sead Dizdarevic for torturing civilians to extort confessions and information, inflicting severe physical and mental pain on them. The Bihać Cantonal Court sentenced Sefer Dervišević to one year in prison for abusing, torturing and humiliating civilians, mainly women and the elderly, in the municipality of Cazin, and Zlatko Hušidić for crimes against prisoners of war. All of them bought out their prison sentences.

The Basic Court in Brčko District sentenced Niko Brnjić to one year in prison for war crimes against the civilian population and his sentence was replaced with a fine. According to the Court in Brčko, he was convicted because he “failed to exercise his duty” as he failed to report a subordinate whom he knew had committed a criminal offence. Brnjić was the commander of the 108^th brigade of the Croatian Defence Council (HVO) for Bosanska Posavina during the attack on the village of Bukvik, on the territory of the pre-war municipality of Brčko in September 1992, and he was accused of watching a subordinate member of the Prijedor company murder a wounded Serbian civilian.

In two cases, the Municipal Court in Banja Luka dismissed the convicts’ requests for a replacement of imposed prison sentences with a fine, but did replace them with an alternative measure of community service.There have been no such replacements of a prison sentence with a fine in the remaining 14 cantonal or district courts.

Prison sentences of 12 months can be bought out according to the four criminal codes in BiH. According to the BiH Criminal Code, a day of imprisonment can be exchanged for BAM 100, the Criminal Codes of the Federation of BiH (FBiH) and the Brčko District stipulate the same amount, while the Criminal Code of the Republika Srpska (RS) provides that a day of imprisonment is worth BAM 50.

According to earlier data of the OSCE Mission to BiH, from 2006 to 2016, prison sentences were replaced by fines in four cases – three at the Cantonal Court in Bihać, and one at the Cantonal Court in Zenica.

The OSCE Mission to BiH singled out two cases at the Cantonal Court in Bihać against two men convicted of rape and attempted rape of minor girls during the war as particularly problematic. In both cases, a plea agreement was concluded, followed by one-year prison sentences and payment of BAM 50,000 for non-pecuniary damage to the victims. Both men requested replacement of their one-year prison sentences with a fine – which meant they did not spend a single day in prison.

We cannot speak of justice in these cases, says Aleksandra Petrić, Lawyer at the United Women Banja Luka, but we can speak of rigid regulations that can and must be amended.

“For the purpose of protecting the victims and the trust that they are asked to show for objectivity, impartiality and proportionality of the punishments, and given the gravity of the crimes committed and, above all, the long-term consequences that crimes, particularly of sexual violence, have on the victims, it is important to work on reforms of the criminal protection system by introducing exemptions to the possibility of replacing a prison sentence of up to one year with a fine for criminal offences of sexual violence,” she adds.

Neither Fair nor Moral

Urgent amendments to criminal codes are needed, says Adrijana Hanušić Bećirović, Senior Legal Advisor at TRIAL International, in order to make it impossible to replace prison sentences with fines in cases related to crimes against humanity and against values protected by international law.

“We, as a society, also need to reconsider this kind of practice in cases of other criminal offences that deserve similar guarantees of adequate punishment,” she notes.

In the meantime, she says, pending the legislative amendments, we should continue stressing these problems on different occasions and in reports, and encourage discussions and opinion exchanges about the practice in various expert consultations of judicial stakeholders.

“I must point out that the cases of rape and attempted rape of minors during the war were met with an extremely critical attitude of colleagues, who qualified it as a threat to the very purpose of punishment. As a result of the steps taken by TRIAL and by the OSCE Mission to BiH, as far as we know, there has been no further development of this practice in recent years,” adds Adrijana Hanušić Bećirović.

When applying the legal mechanism of replacing imprisonment with a fine in case of perpetrators of criminal offenses whose nature is such that the application of this mechanism cannot be justified, then, according to Božidarka Dugonjić, Judge of the FBiH Supreme Court, such situations can only be prevented by amendments to the criminal codes in BiH – i.e., explicit provisions that will exempt certain criminal offences to which, irrespective of the envisaged or imposed punishment, this mechanism will not be applicable.

“This would not entail the change of practice, but a change of the legal solution. At the same time, those cases in which a prison sentence was replaced with a fine – even though they were crimes that by their nature are such that the application of the mechanism is not justified – cannot be viewed as court practice, since they constitute rare exceptions, and not a rule,” she explains and stresses that her answers to the questions are not a formal legal opinion, nor do they represent legal positions she would hold in any legal case.

Mira Smajlović, a retired Judge of the Court of BiH, who worked on war crimes trials at the state level Court for 16 years, says that substituting a prison sentence for a fine in cases of war crimes is neither fair nor moral. She believes that this topic should be actively discussed, that awareness should be raised among the general public, and that the judges in such cases must be aware that the pronounced sentence “may tomorrow become a fine.”

“We need to talk about how moral it is, how fair it is, yes, it is in accordance with the law, but is it fair, is it moral – one does not exclude the other, one complements the other, so let us think in that direction. Therefore, first, we should focus on the public and second, we may have some brave judges who will, respecting the principle of fairness, interpret that a rigid norm does not correspond to social reality, which in our country is such that the victims are marginalised, especially victims of war crimes.”

Unlike the RS and FBiH criminal codes, the BiH Criminal Code, as Aleksandra Petrić points out, provides for exemptions to replacing prison sentences of up to one year with a fine with respect to criminal offenses against the integrity of BiH and criminal offenses related to terrorism.

“With this, the legislator sends a clear message that offences exist for which it is considered inappropriate to apply this mechanism. In addition, by selecting the exempted offences, the legislator clearly defines what is of priority importance to the system and the society,” she states.

In 2017, exemptions were introduced into the BiH Criminal Code for offenses for which the replacement mechanism does not apply. These are offences against the integrity of BiH and offences of terrorism, financing of terrorist activities, public incitement to terrorist activities, training for terrorist activities, and organising a terrorist group. War crimes, unfortunately, were not included in these exemptions.

The amendments were proposed by the then state-level MP of Serb Democratic Party, Aleksandra Pandurević, and included offences against the integrity of BiH, to which offences related to terrorism were added by the Constitutional and Legal Committee of the state-level Parliament. Both Houses of the BiH Parliamentary Assembly accepted the amendments to the BiH Criminal Code. That same year, however, the amendment proposed by MP Šefik Džaferović to completely abolish the possibility of replacing a prison sentence with a fine was not accepted.

It is evident, says Judge Mira Smajlović, that the proponents or the legislators are not sensitive and do not recognise this problem, that is why the public should put it on a pedestal and talk about the fact that it is shameful that prison sentences for war crimes are replaced by fines.

“Well, I guess that the legislator, the Minister of Justice, one of the proponents or someone else– just look at how many decisions the High Representative imposed – could make a decision in the direction of exempting war crimes from this replacement mechanism,” she says.

Božidarka Dugonjić, Judge of the FBiH Supreme Court, notes that, from the perspective of criminal legislation in BiH, if the courts have a legal obligation to replace a prison sentence of up to one year with a fine when so requested by the convicted person, the courts cannot be “criticised” for doing so because they act in accordance with the law.

“However, from a moral point of view, it is clear that for certain types of criminal offences, due to their very nature, the application of this mechanism is not justified, therefore, it is the duty of the legislator to address this,” she adds.

TRIAL International started cooperating with a number of sensitised MPs in the FBiH Parliament to draft a proposal of amendments to the article of the FBiH Criminal Code with the aim of preventing the replacement of prison sentences with fines for crimes against humanity and against international law. TRAIL is proposing an amendment to Article 43a of the FBiH Criminal Code, which stipulates this mechanism.

According to Adrijana Hanušić Bećirović, Senior Legal Advisor at TRIAL International, amendments to criminal legislation can contribute to the achievement of the purpose of the sanctioning policy that includes community’s condemnation of perpetrated offences, the preventive function, and strengthening citizens’ trust in the judicial system.

“Preventing this kind of practice also means abolishing the risk that some victims will again be deprived of a unique opportunity to achieve some form of satisfaction and that they will be subject to re-traumatisation that they did not deserve. In the end, it sends a clear message to the society as to how the system views and handles the offences from the 1990s – that left a deep mark on the lives of so many citizens of BiH,” she adds.

 

What is the Purpose of This Practice?

In the practice of BiH courts, prison sentences of up to one year are most often imposed, inter alia, for minor physical injuries, petty theft, traffic offences, endangering safety, negligent work, conclusion of a harmful contract, economic crimes. However, the problem arises when the most serious crimes against international law are punished with these sentences.

The mechanism of replacing a prison sentence with a fine does not constitute a judgment; it falls under the enforcement proceedings where the legislator envisaged the possibility that a prison sentence of up to one year can be replaced with a fine. This norm, as Judge Mira Smajlović explains, did have its justification, particularly with respect to property crimes.

“The state probably identified an economic interest, firstly, to fund the budget, and secondly, to unburden prison capacities so that the state does not have to support these individuals. It has a purpose for property offences. However, when the Code was being passed, the idea was that the courts will assess in which situations the option would be appropriate. The gravity of the offence was to be taken in consideration, as well as the circumstances of the offence – and that made sense. What happened in society for the legislator to decide to abolish the discretion of the court and to only leave the option for the convicted person to say: yes, I want my prison sentence to be replaced with a fine, and why was this done, I do not know. Most probably, the people who amended the law decided on this,” she says.

Therefore, according to the existing criminal legislation in BiH, the courts are obliged to replace a prison sentence of up to one year with a fine, at the request of the convicted person – if such a request is submitted, the court has no legal option to reject it.

This would all make sense in property offences, however, as Judge Smajilović adds, the proponent of the law failed to appreciate the implications it could have in case of other criminal offences.

Božidarka Dugonjić, Judge of the FBiH Supreme Court, adds that the mechanism of replacing a prison sentence with a fine is not a problem, but an efficient solution for short-term prison sentences (up to one year) to be bought out instead of served in penal institutions.

“Multiple effects are achieved, among which are the unburdening of penal and correctional institutions and the reduction of budgetary expenses for prisoner support and, on the other hand, there is the inflow of funds into the budget. This mechanism is applied in judiciaries of all modern democratic states also because, inter alia, the perpetrators of “petty” offences (sanctioned by more lenient punishment) cannot even complete the overall resocialisation program implemented in penal facilities while serving a short prison sentence,” she explains.

Although, as she says, there is a generally negative attitude of the public about the possibility of replacing prison sentences with fines, mainly due to lack of information about the conditions under which this mechanism is applied, we should be clear that this mechanism in the criminal legislation has its justification, which the European Court of Human Rights, as well as the BiH Constitutional Court, confirmed in their decisions.

“Problems in the application of this mechanism can arise where there are no legal criteria to restrict its application to a certain type of criminal offenses, as is the case in BiH; therefore, if there is a legal possibility of reducing the prison sentence to one year, it follows that the mechanism can be applied in case of perpetrators of more serious offences or perpetrators of offences sanctioned by more lenient punishment but of such nature that the application of this mechanism invalidates the purpose of punishment (rape, fornication, sexual intercourse by abuse of position, sexual intercourse with a child, etc.),” Dugonjić explains.

The problem arises, adds Judge Smajlović, in war crimes cases – the most serious criminal offences according to international law – which deserve the most severe criminal sanctions and the strongest social condemnation.

“And then these are reduced to a single economic category – which really requires us to think about it. It is the Code, it is the norm, but from the perspective of fairness and morality, it simply cannot stand the test. It is impossible to reduce a war crime to an economic category, to replace the punishment with an amount of money. It is incompatible, it is a violation of humanitarian law. I am taking here the position of the victim, our law failed to properly address that position,” she warns.

What Is the Message to the Victims?

According to Adrijana Hanušić Bećirović, Senior Legal Advisor at TRIAL International, the fact that prison sentences can be bought out in war crimes cases has a detrimental effect on the victims of those specific crimes, but also on the broader community of war crimes victims. In this way, she says, their confidence in the judiciary is directly undermined, because it suggests that even those who have committed the most serious crimes and have been sentenced for them, can, if they have the means, buy their freedom and thereby avoid the sanction even for the most heinous acts.

“The victims are thus deprived of the opportunity for satisfaction, as one of the reparation measures to which they are entitled to by international standards, and which, inter alia, can be achieved by appropriate punishment for the perpetrator of the crime. Without such satisfaction, and with additional disappointment due to the possibility of replacing the sentence with a fine, the process of rehabilitation and the attempt to integrate such an experience into their life is greatly hampered,” she adds.

Aleksandra Petrić, Lawyer at the United Women Banja Luka, says that the imposition of lenient sentences in war crimes cases sends a message to victims that these are acts constituting lesser social danger, that they do not produce serious consequences for the victim and society as a whole, which is disproportionate to the nature of war crimes.

“With lenient sentences, there can be no social condemnation of the crime, no achievement of justice that the victims expect, so that they feel that they are important to society and that society and the judicial system condemn what they had to survive,” she states.

Aleksandra Petrić reminds that victims of war crimes have been living on the margins of society for decades after the war in BiH, and their basic human rights are not a priority for public institutions.

“Prosecuting and convicting perpetrators of war crimes primarily brings the victims a sense of recognition of their suffering, confirmation that they experienced and survived horrors, that people believe them, that someone is guilty and will be held accountable for the crime they survived. The possibility of “buying out” war crimes sends the message that their suffering and its consequences are negligible and unimportant and that the rights of the perpetrator are more important than the suffering and pain of the victims. It is socially unacceptable and immoral,” she clearly states.

By replacing imprisonment with a fine, as former Judge of the Court of BiH Mira Smajlović says, we are telling the victims that their suffering is practically trivialised, that money can buy everything, including someone’s psychological suffering. She believes that the BiH society should, considering that it has come out of war, have a special sensitivity towards the victims.

“In general, every victim, especially victim of wartime sexual violence, should be protected, without any option of someone having money to be able to buy their freedom.” I think it is a very bad message to the victims,” says Smajlović.

She reminds that many convicted persons prosecuted at the Court of BiH receive financial help from several associations under the pretext that they provide them with this assistance for defence in criminal proceedings.

“Those funds may be coming from taxpayers, because they are probably financed from the budget. And when you think they use them to buy freedom – it is one thing to defend oneself in court and have a fair defence, and it is another thing when the Court makes a decision to exchange the sentence with a fine. It is trivialisation and not a good message for the victims. In the end, the economic aspect, the financial category, is predominant in our society and that we are not sensitive to someone’s suffering and the fact that not everything should be payable with money,” concludes Smajlović.

Author: Marija Arnautović

This article is the result of the author’s cooperation with TRIAL International in BiH.

This material is completely or partly financed by the Swedish development aid and The Kvinna till Kvinna Foundation. The Swedish development aid and Kvinna till Kvinna do not necessarily agree with the opinions expressed. The author alone is responsible for the content.

On the 12^th anniversary of the first assassination attempt on the late Audace Vianney Habonarugira, who was killed in a second attempt four months later, the complainant NGOs in the case make public the African Commission’s decision establishing that Mr Habonarugira’s death was the result of an act by Burundian State agents coupled with the latter’s inaction.

©TRIAL International / Landry Nshimiye Bujumbura_Radio Publique Africaine

7^th March 2023 – ACAT-Burundi, APRODH, FOCODE, FORSC and TRIAL International all welcome the African Commission on Human and Peoples’ Rights’ decision (hereafter the African Commission) in the case of the late Audace Vianney Habonarugira.

Habonarugira, a former demobilised colonel of the Forces nationales de libération (FNL), had been threatened on several occasions before being subjected to an assassination attempt by Burundian State agents on the 7^th March 2011. After falling into a coma, he was released from hospital only in late June 2011 and began living in hiding, still wanted. However, this did not save his life. Tricked by an impostor who had given him an appointment on the 14^th July 2011, he was found dead the next day. His body had bullet wounds.

The judicial investigation opened in Burundi into the assassination attempt never led to concrete results. The same applies to the alleged investigation into his extrajudicial execution. “It is evident that no effective and impartial investigation has been carried out by Burundian authorities,” says Armel Niyongere, President of ACAT-Burundi. “Through its decision, the African Commission urges Burundi to finally carry out a thorough investigation into the execution of the late Habonarugira and the other violations he suffered,” continues Niyongere.

“The African Commission also clearly states that the family of the late Habonarugira was itself a victim of psychological torture,” argues Vital Nshimirimana, President of FORSC, “and is entitled to adequate and sufficient reparation”.

The African Commission even goes a step further. “It calls on Burundi to put in place mechanisms to combat widespread impunity for extrajudicial executions and violations of the right to life,” explains Pierre-Claver Mbonimpa, President of APRODH. “This is an important result for us, as the Commission recognizes that the case of the late Habonarugira is far from being an isolated one in Burundi,” states Mbonimpa.

Indeed, extrajudicial killings of current or former opponents of the Burundian government and other politically motivated assassinations have continued since 2011, as shown in numerous reports on the human rights situation in Burundi. In most cases, neither the direct perpetrators nor the masterminds behind these crimes have been prosecuted.

“This is why an institutional response that goes well beyond this emblematic case is necessary,” indicates Pacifique Nininahazwe, President of FOCODE. “In this regard, the African Commission also requests the Burundian authorities to adopt all necessary measures to guarantee that such events do not recur, all while ensuring the full implementation of the 2016 Law on the Protection of Victims, Witnesses and Other Persons at Risk,” adds Nininahazwe.

In its decision on the Habonarugira case, the African Commission also revisits the recommendations it made in the report on its 2015 fact-finding mission in Burundi and calls for their implementation. At the time, the African Commission had recommended “the establishment of a special tribunal in Burundi with the support of the international community whose mandate would include holding the perpetrators of human rights violations and other abuses criminally accountable” (unofficial translation). This recommendation is still very relevant but has never been implemented. Since then, the International Criminal Court (ICC) opened an investigation – which is still ongoing – into serious crimes committed in Burundi between 2015 and 2017, a time frame which can be extended if certain conditions are met.

“A strong message against impunity in Burundi has been sent by the decision of the African Commission,” concludes Pamela Capizzi, Head of Pool of Legal Expertise for TRIAL International. “The Burundian authorities must now demonstrate goodwill by promptly implementing the recommendations addressed to them and by committing themselves to a credible and sustainable justice process”.

The African Commission’s decision is attached (only available in French)