Communication Department, Author at TRIAL International

Over the past several years, sexual violence against males has periodically reached the headlines (Guantánamo, Sri Lanka…). Despite this recent spate of exposure, many male victims remain shrouded in silence, reluctant to come forward due to stigma. Kyle Delbyck, legal consultant for TRIAL International’s BiH program, examines the situation.

The number of males raped during the conflict in BiH is still unclear. A recent Amnesty International report estimated that 3,000 men and boys had been subjected to sexual violence in detention camps.

As the report specifies, because “men are less likely to report such crimes or speak out about them in public, the number is likely higher”. Under-reporting in BiH largely stems from stigmatization.

The sexually “impenetrable”

BiH society is patriarchal, with men positioned as dominant, sexually impenetrable beings. As such, the rape of a male transgresses gender norms, carrying emasculating, stigmatizing connotations.

Certain domestic war crimes cases reflect societal biases regarding sexual violence against males.

Avoiding the word “rape”

Under international law, rape is defined as the invasion of a person’s body with a sexual organ or object. Forced anal sex, forced vaginal sex, and forced oral sex therefore constitute rape, no matter the gender of the parties involved.

In wartime detention camps, it was not uncommon for guards or other officials to compel male prisoners to engage in oral or anal sex. These crimes clearly fulfill the legal criteria for rape.

Prosecutors and courts, however, have intermittently shied away from qualifying the sexual violence in detention camps as such. Instead, in a number of camp cases, perpetrators have been convicted of torture or inhuman treatment.

Take Mladen Milanovic, for example. The Accused, a guard in Vogosca, ordered two prisoners to strip naked and have intercourse. Notwithstanding the clear sexual component of the crime, the Supreme Court of FBiH classified the offense as inhuman treatment. Cases such as Milanovic reflect judicial actors’ continuing discomfort with the concept of sexual violence against males, helping to perpetuate the culture of shame and silence.

Tackling the issue on all levels

The stigmatization of wartime sexual violence against men—whether in the courtroom, the home, or the halls of government— is rooted in broader prejudice. Consequently, education that combats archaic societal norms is imperative. Only with the baseline acknowledgment that men can be raped will stigma begin to decrease.

Verdicts that recognize sexual violence against males for what it is are therefore valuable. The BiH authorities should establish trainings for judges and prosecutors on the appropriate characterization of these crimes. While stigmatization must be tackled on all levels, judicial actors have an important role to play.

A campaign has launched in support of the Responsible Business Initiative. The participating organizations, including TRIAL International, call on supporters to hang flags from their windows. Get involved in the campaign!

Making multinationals accountable

TRIAL International has been fighting for years against the impunity of corporations in the field of human rights. Unfortunately, proceedings such as those against Argor-Heraeus SA and Caterpillar remain isolated cases and fail to stamp pour impunity.

In 2015, a project launched to inscribe into Swiss law a due diligence clause for corporations. The initiative wishes to impose binding rules on multinationals for the protection of human rights and the environment, and across their whole spectrum of activities.

Popular support and dismissal from the Federal Council

The 120’418 signatures-strong initiative was filed on 10 October 2016. In September 2017, the Federal Council recognized the worthiness of its objectives but ruled it was going too far: it recommended the Parliament to dismiss the initiative without proposing an alternative project.

In June 2018, the Parliament will adopt a position on the initiative. Support for the latter must be made as visible as possible.

Its growing success is impressive: since its launch, the initiative has gone from 66 to 97 supporting organizations, and over a million private members, or 1/8 of the Swiss population!

Flags against impunity

A campaign is now launching to show the strength of the initiative. Its objective: 10’000 flags hanging from windows and balconies across the country, by the beginning of summer.

Take action for the campaign and order now flags against impunity! (the form in is French)

Why TRIAL International support the initiative

The full brochure on the initiative (in French)

Colonel « Marocain » was found guilty of sexual slavery, rape, looting and attack against civilians in DRC. An additional proof that justice can move forward in DRC, tempered by the dismissal of several victims from the proceedings.

On Saturday 28 April 2018 in Kalehe – some 70km from Bukavu – the Military Court of South Kivu has condemned the Lieutenant-Colonel Maro Ntumwa, known as “Marocain” to 20 years imprisonment. His crimes: to have organized or authorized war crimes and crimes against humanity as head of a local militia, from 2005 to 2007. Marocain’s superior had already been condemned by the same Court in 2014.

More information about Marocain’s crimes

“This condemnation is another important signal in the fight for justice in Eastern DRC” said Daniele Perissi, Head of the DRC program at TRIAL International. “The Congolese judiciary has proved its determination to sanction the authors of grave crimes, even when the events occurred more than 10 years ago.”

VICTIMS AT THE HEART OF THE PROCEEDINGS

This verdict marks the end of the trial before the Military Court of South-Kivu, held from 13 to 28 April 2018. The hearings took place in Kahele, close to the crime scenes and thereby facilitating access to victims and evidence.

Another positive outcome of the trial is the allocation of reparations for a dozen victims – 2’000 to 5’000 USD each. Sadly, several other victims were dismissed and will be unable to receive compensation.

The second downside is the rejection of the Congolese State’s civil responsibility. The judges did not retain the argument that the authorities had failed to prevent the crimes and protect the population against Marocain’s militia.

All these questions will be reviewed in last instance by the High Military Court in Kinshasa since Marocain immediately appealed the judgment rendered by the Military Court of South-Kivu.

WHAT HAS BEEN TRIAL’S ROLE IN THE CASE?

As a member of the Task Force for International Criminal Justice, TRIAL International has contributed to the case in various ways:

Documentation: taking part in documenting missions, coaching lawyers in charge of gathering evidence, financing additional medical and DNA tests
Supporting victims: registering victims’ stories, providing information and coaching to local NGOs, and free legal assistance through the group’s lawyers
Legal strategy: continuous support and coaching of the victims’ lawyers, technical expertise to analyze evidence, implementation of the legal strategy

TRIAL will continue to support and provide legal assistance to the victims of these crimes until the end of the proceedings so that they will be able to effectively access compensation.

More information about TRIAL’s actions in DRC

In its ruling of 27 April 2018, the Geneva Court of justice ruled that Erwin Sperisen was an accomplice in the execution of seven prisoners at the Pavon prison in 2006. The former Chief of Guatemala’s National Civil Police was sentenced to 15 years in prison. TRIAL International welcomes the verdict, which represents an important step in the fight against impunity for State crimes.

The Geneva Court of justice found the Swiss-Guatemalan binational Erwin Sperisen guilty of having participated in extrajudicial killings in Guatemala in 2006. The accused had been given a life sentence by a lower court in June 2014 for seven murders perpetrated in the Pavon prison. The Court of justice, on appeal, also sentenced him to life, but for ten counts of murder, adding three additional executions committed in the Infiernito prison in 2005. In June 2017, the Federal Court quashed this ruling and ordered a retrial, validating however many damning facts established by the Court.

In the ruling of 27 April 2018, the Court of Justice of Geneva found Erwin Sperisen criminally responsible for contributing to an operation organised in 2006, aimed at taking back control of the Pavon prison, during which seven prisoners were summarily executed. The Court found that Erwin Sperisen had acted as an accomplice in the murder of the seven detainees, after hesitating to find him fully responsible as a co-author. The Court however did not establish Erwin Sperisen’s responsibility for the killings committed in the Infiernito prison in 2005, hence acquitting him of these charges.

Erwin Sperisen was thus found guilty of complicity in the execution of seven detainees placed under the State’s protection, and was sentenced to 15 years in prison. The plaintive, the mother of one of the murdered prisoners, was awarded CHF 30 000 as compensation.

Philip Grant, director of TRIAL International, reacted to the ruling: “This verdict demonstrates the healthy functioning of our institutions, and gives hope to victims as well as to individuals and organisations committed to the fight against impunity in Guatemala.”

TRIAL International welcomes the fact that the Geneva authorities conducted the trial to its end, fulfilling their responsibility in providing justice to victims of the gravest human rights abuses.

Overview of the Sperisen case

Erwin Sperisen
Born on 27 June 1970, Erwin Sperisen is of Swiss and Guatemalan nationality. Between August 2005 and March 2007, as chief of the National Civil Police (NPC) in Guatemala, he was tasked with leading and ensuring the correct functioning of the country’s different police forces. In 2007, he resigned and went to live in Geneva.

Context
In 2006, an operation was organised in order to regain control of the Pavon prison, located near Guatemala City. Over 3000 agents of the NCP, army and prison authorities were mobilized. During this operation, seven inmates were found, arrested and then executed. The crime scene was covered up to give the impression that these deaths were the result of an armed confrontation.

Chronology of the case

Beginning of 2008: After discovering his presence in the country, Swiss NGOs lodged criminal legal proceedings against Erwin Sperisen at the Public Prosecutor’s Office.

2009: TRIAL International and the OMCT lodged a second complaint against Erwin Sperisen in front of the competent Swiss authorities.

August 2010: Guatemala issued an international arrest warrant against Erwin Sperisen.

August 2012: Erwin Sperisen was arrested on the orders of the Geneva prosecuting authorities and detained in Champ-Dollon prison.

June 2014: The Criminal Court of Geneva found Erwin Sperisen guilty as co-perpetrator in six murders and as direct perpetrator of another during the events that occurred in Pavon prison. He was sentenced to life imprisonment and appealed.

July 2015: The Appeals Chamber confirmed the sentence of life imprisonment and condemned Erwin Sperisen for the seven murders committed in Pavon prison. Furthermore, it found him guilty of the murder of three fugitives in the Infiernito prison. Erwin Sperisen appealed this decision before the Federal Court.

June 2017: The Federal Court annulled the decision of the Geneva Court of Appeals and ordered a retrial. However, it recognised that extrajudicial killings were committed by the police forces.

April 2018: The Geneva Court of Justice sentenced Erwin Sperisen to 15 years imprisonment.

The Bukavu military court has sentenced a Congolese policeman to 20 years of prison for raping two minors. The girls were assaulted while they were detained at the police station.

On 24 March 2017, Désirée, Victoire, and Renée (real names withheld), all three aged between 12 and 14 years old, were arrested and detained at Bidagwa police station. The first was accused of stealing a phone charger, the other two under suspicion of complicity.

Two policemen were at the station, including Mr. Mulumeoderwa Bahimba Muhiganya, nicknamed “Kadogo”. During the night, while his colleague was asleep, Kadogo went to see the detained. Under the guise that her parents had arrived, he took Désirée out of the cell and raped her. He then did the same to Victoire. Renée managed to escape him, shouting. As the policeman assaulted Désirée a second time, his colleague woke up and realized that the policeman was with the child.

The victims’ unfailing courage

The next day, the head of the police station was informed of the events and he took the three minors to the Katana medical center so that they could be examined. On the same day, Kadogo was arrested, taken into custody, and then transferred to the central prison of Bukavu. He managed to escape from there on 28 July 2017, shortly before the trial started.

The defendant’s function, a representative of the public authorities, could have deterred the young girls and their families from seeking justice. However, displaying unfailing courage, they agreed to face all the obstacles, including being stigmatized.

TRIAL International supported the victims in their quest for justice from April 2017. The organization helped gathering evidence, including the victims’ age and their movements, and collected testimonies. The latter, read to the audience, were essential in preventing further questioning to the young girls, which would have been highly traumatizing for the victims, already very vulnerable.

A victory and another battle

On 10 April 2018 and despite Kadogo’s absence, the garrison military court found him guilty of raping the minors. The court sentenced him to twenty years in prison and ordered his immediate arrest. The Democratic Republic of Congo was found jointly and severally liable for paying 5,000 dollars to each plaintiff by way of damages.

This verdict is a victory for the victims, but other difficulties are already taking shape. Indeed, to date the Congolese State has never paid the compensation due to victims of sexual violence.

For Patient Iraguha, DRC legal advisor at the Bukavu office, a new legal battle now awaits TRIAL and its partners: “We must ensure that the compensation is paid and the sentenced policeman is arrested to prevent the verdict from being a dead letter. Impunity must be fought and stopped through concrete measures.”

The third trial of Erwin Sperisen will open on Monday 16 April 2018 in Geneva. TRIAL International is confident it will shed a light on the role of the former head of the Guatemalan police, who is accused of 10 extrajudicial executions.

This new episode follows the Federal’s Tribunal quash of the Geneva Court of Justice verdict in July 2017. This decision had not acquitted the accused, and on the contrary confirmed several points against him, notably:

The murder of seven detainees at the Pavon prison had been planned. In no way were they the result of an armed confrontation.
In an attempt to cover the deeds, the crime scene had been manipulated to make it look like a confrontation.
No investigation followed the death of the detainees.
The mother of a victim was confirmed as a plaintiff in the proceedings.

TRIAL International regrets that these facts are once against put into question, in a campaign aiming at delegitimizing the role of justice.

TRIAL International hopes that the hearings opening on 16 April will unfold serenely, in full respect of the rights of all parties, and that they will confirm the criminal responsibility of Erwin Sperisen.

A coalition launches its project of a civil institution: based on the model of the tribunal, it aims to create a space of dialogue to denounce mass crimes.

After the civil war in Democratic Republic of Congo (DRC), access to justice remains problematic for mass crimes victims. To address this issue, in 2015, Milau Rau created and filmed a unique civilian tribunal: a secure public space where victims, perpetrators and stakeholders can discuss openly.

Inspired by this success, a group of Congolese and European lawyers, human rights activists and journalists are launching a crowdfunding campaign. Their project is to set up new civil tribunals, document their processes and advance the fight against impunity in DRC.

Building lasting peace

TRIAL International supports this campaign, which echoes its activities in DRC: reinforcing local capacity and taking mass crimes cases in front of domestic and international courts.

For Daniele Perissi, head of DRC program: « Dialog is essential for transitional justice. Giving a voice to victims is a first step toward justice and a prerequisite for a lasting peace. »

Read the press release
The campaign website

In an open letter published today, 15 Non-Governmental Organizations are calling upon the EU and the UN to ensure that accountability and justice for victims will be at the forefront of any discussions surrounding the “future of Syria” at the “Brussels II Conference”.

Dear United Nations Secretary-General,
Dear High Representative of the European Union for Foreign Affairs and Security Policy,
Dear Commissioner for Humanitarian Aid and Crisis Management,
Dear Commissioner for Enlargement and European Neighbourhood Policy,
Dear Commissioner for International Cooperation and Development,
Dear Political and Security Committee Ambassadors,

Ahead of the 24-25 April “Brussels II Conference”, the undersigned international and Syrian Non Governmental Organisations call on the European Union and the United Nations to ensure that accountability for atrocities in Syria and justice for victims be integrated as a central concern of the discussions on the “future of Syria”.

Seven years into the conflict, the near total absence of accountability for grave violations of human rights and humanitarian law and of redress for victims have further entrenched the culture of impunity that arose over decades of repression in Syria. This impunity is one of the root causes of the conflict. Any conference to discuss the country’s future must not brush aside the question of accountability for crimes committed in Syria.

Impunity is affecting all Syrians inside and outside of Syria and will have severe long-term consequences if not addressed urgently. Impunity for past and present crimes gives a blank check to perpetrators and abusers to continue committing serious human rights violations and violations of international humanitarian law, and threatens to undermine popular trust in any judicial system reconstructed from its repressive forebears. Feelings of injustice and the absence of redress will result in frustration and in a fertile soil for extremism; they will prevent the rehabilitation of victims and the restoration of trust and confidence in new state institutions and in the rule of law.

Furthermore, the sense of persistent injustice that accompanies total impunity will prevent Syrians who have fled their country from voluntarily returning.

The UN General Assembly’s creation of the International, Impartial and Independent Mechanism for Syria mandated to collect and analyse evidence of crimes for the prosecution of those responsible for the most serious crimes is an important step towards combating impunity for grave violations of international law and towards accountability. Likewise, ongoing investigations and proceedings before national justice systems in some European Union member states, including those based on universal jurisdiction, have provided a much-needed source of hope for accountability and justice in the absence of more comprehensive solutions.

Much more must be done to overcome impunity and bring justice to victims for the overwhelming magnitude of atrocity over the past seven years. Criminal accountability and other transitional justice measures must be an integral part of peace discussions. More must be done to protect and support victims, whose voices and interests should be at the core of justice and accountability efforts. More must be done to support Syrian civil society organisations engaged in documenting crimes, engaging with victim communities, participating in peace negotiations, and working to build a peaceful Syria on a foundation of justice.

While the UN-led political process has a major role to play in this area, funding efforts discussed during the Brussels II Conference should also integrate these objectives. In addition to the essential areas of economic development, social integration, and support for youth and education, any planning for Syria’s future must incorporate justice and upholding victims’ rights as a central element.

Concretely, our organisations call on the European Union and United Nations to ensure that:

the Brussels II Conference includes a meaningful discussion of the issues related to accountability and justice, both in the 24 April thematic discussions and the 25 April ministerial meeting;
discussions during the 24 April thematic part of the Conference be held in presence of all relevant stakeholders, including Ministers and UN representatives;
a clear process be identified to transmit the results of these thematic discussions and those of possible side events on accountability into the Ministerial discussions on 25 April; and that
the Brussels II Conference final conclusions integrate the recommendations that will be made in the area of accountability and redress for victims, and that immediate action be made in order to translate them into concrete actions during the implementation phase of the pledges.

Looking forward to your reply, we remain at your disposal for further information.

List of signatories:

Euromed Rights
European Centre for Constitutional and Human Rights (ECCHR)
Impunity Watch
International Center for Transitional Justice (ICTJ)
International Federation for Human Rights (FIDH) No Peace Without Justice (NPWJ)
Open Society Justice Initiative (OSJI)
PAX
REDRESS
Syrian Center for Media and Freedom of Expression (SCM)
Syrian Network for Human Rights (SNHR)
Syrians for Truth and Justice (STJ)
TRIAL International
Violations Documentation Center in Syria (VDC)
World Federalist Movement-Institute for Global Policy

Sarajevo, April 3, 2018 – Non-governmental organization TRIAL International welcomes the decision of the Constitutional Court of BiH on the violation of the right to property and the right to a fair trial of victims of war crimes regarding the order to pay costs of Attorney’s Offices in compensation proceedings.

At a session held on March 22, 2018, the Constitutional Court of BiH adopted S.A.’s appeal against the decisions of the Supreme Court of Republika Srpska and Banja Luka District Court regarding the costs of the proceedings. The Constitutional Court found that ordering the victim of wartime rape to pay the costs of Republika Srpska Attorney’s Office in a trial against this entity, aimed at achieving compensation for the harm she suffered was a disproportionate and excessive burden on the appellant. This was determined to be a violation of the right to property and the right to a fair trial as provided for in the Constitution of BiH and the European Convention on Human Rights and Fundamental Freedoms.

S.A. was raped multiple times by the member of the Army of Republika Srpska in July of 1992. For the last eight years, TRIAL International has been providing free legal aid to the survivor which, in 2013, resulted in the conviction of the perpetrator before the Doboj District Court. After her compensation claim before the civil court in Banja Luka was rejected based on the statute of limitations and she was ordered to pay 3000 BAM of court fees, TRIAL International hired the lawyer Nedžla Šehić to represent her. This was a strategic case in protecting human rights of victims of war crimes and in March 2017 an appeal was submitted to the Constitutional Court of BiH resulting in the abovementioned decision.

“This is a very significant step for the appellant, a victim of wartime sexual violence whom this decision directly relates to, as well as for other victims of war crimes who are in a similar situation. Now the responsibility lies with the ordinary courts in BiH, and we expect them to by implementing those standards finally take away the unacceptable and excessive burden from the victims of sexual violence, former camp detainees and families of missing persons.”, said Adrijana Hanušić Bećirović, Senior Legal Adviser at TRIAL International Office in BiH.

She noted that, for a long time now, the victims of war crimes in BiH have been faced with a problem of certain local courts imposing high court fees to the survivors who had initiated compensation claims in civil proceeding but had them dismissed based on statute of limitations. Unfortunately, this contributes to further retraumatization of victims of war, who are oftentimes marginalized and deeply traumatized from the war. They live in a constant fear of having to pay the fees, which can often lead to suicidal thoughts.

For a long time, TRIAL International has been carrying out a series of strategic activities addressing the systemic problem victims of war have been facing. This includes publishing a legal analysis of the implications the Judgment of the European Court of Human Rights in the case of Cindrić and Bešlić v. Croatia might have on the imposition of court fees in BiH, sending out a joint letter to solve this issue on behalf of more than 40 civil society organizations and victims’ associations to all relevant institutions in BiH, and informing European and international bodies about the need to address this problem.

CASE ANIL CHAUDARY V. NEPAL

Anil Chaudhary was a 15-year-old boy when he was shot and killed by security officers. Since then, his parents have relentlessly sought justice. On the 28 March,14 years after Anil Chaudhary’s death, TRIAL International brought the case before the United Nations Human Rights Committee (HRC).

THE CASE

Anil Chaudhary was born in the District of Bardiya and belonged to the indigenous ethnic group Tharus.

On March 15 2004, Anil Chaudhary was cycling with his neighbor Ram Prasad Chaudhary towards the village of Fattepur, where he lived at that time. On their way, the boys were intercepted by a group of approximately 200 security officers.

Some officers tied the boys’ hands behind their backs and questioned them about potential links with the Maoist guerrilla. They subjected the two minors to verbal assault and physical abuse. They then dragged them to a nearby canal, where they continued the beatings. One officer then fired a mortal bullet at Ram Prasad Chaudhary. Anil Chaudhary witnessed the extrajudicial killing. He was subsequently questioned and ill-treated for half an hour, before being killed by three bullets shot in the back of his head.

THE QUEST FOR JUSTICE

Over the past 18 years, Anil Chaudhary’s parents have tried to obtain justice and redress.

They repeatedly submitted complaints to different Nepalese authorities, to no avail. After many attempts, the Police has allegedly registered a criminal complaint (“first information report”), but has refused to provide them with any information.

To date, no one has been held accountable for Anil Chaudhary’s death, and his family has not received adequate compensation for the harm suffered.

Having exhausted all domestic remedies and with the help of TRIAL International, Anil Chaudhary’s parents turned to the HRC on 28 March 2018.

The case is currently pending.

ALLEGED VIOLATIONS

It is alleged that Anil Chaudhary is a victim of arbitrary arrest, torture and extra-judicial killing by Nepalese security officers, in contravention of Articles 6, 7 and 9 of the International Covenant on Civil and Political Rights.

These violations had an allegedly discriminatory ground based on his ethnicity and were aggravated by the fact that he was a minor at the time of the events.

TRIAL International request the HRC, to establish that Nepal violated Anil Chaudhary’s rights, and is under the obligation to, among others, investigate into his death, hold the perpetrators accountable and provide his parents with adequate compensation.

United Nations recognizes Nepal’s responsibility on the torture and extra-judicial killing of Anil in it’s decision of the 20th of May 2022

The HRC found that Anil was subjected to an arbitrary deprivation of liberty and extra-judicial execution and that he was targeted as a young boy, member of the Tharu indigenous community. Nepal has failed to fulfil its positive obligations and the investigations conducted have not been adequate and only served to foster impunity. This has been facilitated by a flawed legislation, especially when it comes to the applicable statute of limitations with regard to torture.

Anil’s parents have been considered also victims of violations by the State, on the one hand because of the fear and anguish experienced and fostered by the lack of adequate answers on their son’s death and, on the other hand, because they’ve been subjected to threats and harrassment and the reputation of their son has been affected as he has been labeled as a terrorist.

All the above, translates in the recognition that Nepal violated arts. 6 (right to life), 7 (prohibition of torture) and 9 (right to personal liberty) read alone and in conjunction with arts. 2.3 (right to an effective remedy), 24.1 (rights of the child) and 26 (prohibition of discrimination) of the International Covenant on Civil and Political Rights with regard to Anil.

Nepal also violated arts. 7 (prohibition of torture), read alone and in conjunction with art. 2.3 (right to an effective remedy) and art. 17 (right to privacy and family life) of Anil’s parents.

The HRC indicated that Nepal must:

– investigate on the events, identify those responsible, prosecute and sanction them. The results of the investigations must be made public.

– provide to Anil’s parents psychological rehabilitation and medical treatment free of charge.

– provide adequate compensation to Anil’s parents.

– issue an official apology to Anil’s parents and build a memorial in Anil’s name, to restore his and his family’s name.

– amend domestic legislation, especially with regard to the applicable statutes of limitation for torture.

CONTEXT

This case must be read in the context of the 10 years long internal armed conflict that opposed the Nepalese government and the Communist party of Nepal-Maoist, during which arbitrary arrest, torture and extrajudicial killings were practiced on a systematic basis.

The events took place in the District of Bardiya which was particularly affected by the conflict. Tharus indigenous, including women and children, were often associated with the Maoist guerrilla and targeted by security forces.

Read the press release of the HRC decision

An oral statement to the Human Rights Council (HRC) on March 13 reports an alarming observation of human rights violations in Burundi. Indeed, these violations continue to be committed in Burundi in complete impunity.

Following the adoption of a draft revision of the Burundian Constitution, a true campaign of terror was initiated in order to force the population to vote “yes”. This draft revision would particularly enable Pierre Nkurunziza to court two new seven-year mandates.

In the face of this situation, ACAT-Burundi and SOS-Torture/Burundi, supported by the CCPR Centre, FIACAT, OMCT and TRIAL International have invited the concerned bodies to work towards finding crisis recovery solutions.

Read the statement (in French)

Beyond training lawyers, it soon became apparent capacity-building should extend to judges, prosecutors and policy-makers to ensure lasting change.

TRIAL International has been committed since its beginning to building bridges with local experts and stakeholders. In 2011, it added a string to its bow and initiated capacity-building programs for lawyers and human rights defenders in BiH, Burundi, Kenya and Nepal.

Ranging from day-long workshops to individual coaching stretched over a year, all trainings were designed to create a ripple effect, whereby more actors were able to support victims in their quest for justice.

Insufficient change

It soon became clear, however, that reinforcing only one link of the judicial chain was not enough. “The lawyers we had trained raised highly innovative arguments in Court, but they were sometimes rejected because they were unfamiliar to the judges”, explains Philip Grant, Director of TRIAL International. “Likewise, some victims’ claims were not backed up by sufficient evidence, and so the perpetrators could not be held accountable.”

To answer that problem, TRIAL International gradually developed trainings for various actors of the judiciary. From gathering evidence to establishing legal strategies, from interviewing victims to mobilizing international jurisprudence. The organization adopts a holistic approach to improving legal proceedings for victims.

Making the system more victim-friendly

In Bosnia and Herzegovina, stigma remains strong for wartime survivors – including in the courtroom. TRIAL International has conducted trainings and published manuals to sensitize judges, prosecutors and lawyers to the unspoken hurdles preventing victims from seeking justice.

Many victims still fall through the mesh of the complex Bosnian legal system. Using a combination of advocacy and litigation, TRIAL International has obtained significant victories to ensure they could more easily access their right to justice and to reparations.

Gathering strong evidence

Collecting evidence in secluded, potentially dangerous locations is a common challenge for the Congolese prosecuting authorities. With a territory spreading over 2 million square kilometers and limited means, accessing the crime scene is all but a given. TRIAL International’s staff in DRC has been helping with investigations in mass crimes cases. In the iconic Kavumu case, NGOs and experts have unanimously agreed that the strong forensic evidence was key to the conviction of the accused.

To sustain its efforts to build strong investigations, TRIAL International has also launched an innovating program to use video as evidence. “Filming victims’ testimonies anonymously and in familiar settings can be less traumatic, and probably yield better results. Footages from the crimes scene, surroundings, etc. also puts their story into context, adding a compelling level of detail” explains Daniele Perissi, Head of the DRC program. Launched in 2017, the project has now been rolled out to train prosecutors as well as lawyers.

Empowering civil society

Other less immediate actors have a strong role to play in human rights cases: NGOs, victims’ groups and even the media can bring substantial leverage – or cause substantial harm. In Nepal, trainings and workshops have been delivered regularly to members of the civil society, including journalists, local NGOs and even victims who have turned advocates themselves.

“Everyone should be aware of their rights, because they are a weapon against injustice” concludes Lucie Canal, interim Head of TRIAL International’s Nepal program. “We hope that our workshops can help victims’ leaders gain knowledge to lead the way to justice for all Nepalese.”

This morning, the Grand Chamber of the European Court of Human Rights (ECtHR) dismissed a torture victim’s request that his host country grant him access to court to claim reparations from his torturer. However, it leaves the door open for future developments. TRIAL International, which supported Mr. Naït-Liman in his quest for justice for almost 15 years, regrets a missed opportunity to reinforce victims’ rights in the fight against torture.

The Grand Chamber of the ECtHR handed down its final ruling on the Naït-Liman case. Mr. Naït-Liman alleged that Switzerland had violated Article 6 § 1 of the European Convention on Human Rights, which guarantees the right to access a court to assert one’s rights. The facts date back to April 1992 when Mr. Naït-Liman, a Tunisian national who has since become a Swiss citizen, was arbitrarily detained and tortured for 40 days by the Tunisian authorities. Having obtained asylum in Switzerland and unable to seek justice in his country of origin, Mr. Naït-Liman, with the support of TRIAL International, filed a civil case before Swiss courts in 2003 against his torturer, former Tunisian Interior Minister Abdallah Kallel. The complaint aimed to secure reparations for the material and moral damage Mr. Naït-Liman endured. The case went all the way to the Swiss Federal Court before being submitted to the ECtHR.

After being initially rejected by the Court in 2016, the case was referred to the Grand Chamber for final judgment. This morning, the Grand Chamber recognized that Switzerland had a large margin of appreciation in the manner in which it regulates access to its courts, and considered that the restrictive approach of the Swiss courts did not exceed this margin. However, it commended “the efforts by States to make access to a court as effective as possible for those seeking compensation for acts of torture.” Importantly, the judgement does not close the door on future developments in this dynamic legal field. On the contrary, it invited the 47 States of the Council of Europe “to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture.”

This is the first time the Court considered such a question. Mr. Naït-Liman’s lawyer, François Membrez, notes: “The fact that Mr. Naït-Liman’s request was examined by the Court’s Grand Chamber is an undeniable step forward. We must now rely on the courage of other victims to go as far as Strasbourg so they may participate in the development of the jurisprudence.”

TRIAL International observes that in spite of a number of European States’ firm stance to combat torture, barriers to victims’ rights remain. “Given the impossibility of seeking justice in the country where the torture occurred, judicial authorities of the host country must allow victims of torture to submit their claims for reparation. We call on European countries to take action to ensure that the protection they afford to refugees victim of torture also extends to legal remedies,” adds Philip Grant, Director of TRIAL International and counsel for the applicant before the Court. Mr. Naït-Liman also reacts to the verdict: “my fight belongs to all victims of torture who don’t know where to turn to find truth and reparation. Europe ought to play its role in breaking the cycle of impunity and victimisation.”

CHRONOLOGY OF THE CASE

April 1992: While living in Italy, Mr. Abdennacer Naït-Liman is arrested and handed over to the Tunisian authorities. For forty days, he is arbitrarily detained and submitted to diverse forms of torture.

1995: Mr. Naït-Liman is granted asylum in Switzerland.

July 2004: With the support of TRIAL International, Mr. Naït-Liman begins legal proceedings aimed at securing compensation for the injuries he sustained as a result of the torture.

September 2005: The Geneva Tribunal rules that the petition is inadmissible.

September 2006: The Geneva Court of Justice rejects Mr. Naït-Liman’s appeal.

October 2006: Mr. Naït-Liman appeals to the Swiss Federal Court, wanting them to acknowledge that an “emergency jurisdiction” exists in Geneva, as permitted by the Federal Code in private international law.

May 2007: The Swiss Federal Court rejects the appeal because of an insufficient connection.

November 2007: Mr. Naït-Liman submitts an application to the ECtHR, asking it to recognize that he suffered a violation of the European Convention on Human Rights.

June 2016: By a vote of 4 to 3, the European Court of Human Rights narrowly rejects his application. The Court recognizes that Switzerland had the right to limit Mr. Naït-Liman’s access to civil proceedings.

November 2016: A panel of judges accepts the request of Mr. Naït-Liman and TRIAL International for the case to proceed to the Grand Chamber of the Court.

June 2017: The Grand Chamber of the Court holds a public hearing.

March 2018: The Grand Chamber of the Court renders its final verdict rejecting Mr. Naït-Liman’s request.

Universal jurisdiction is here to stay. In their annual report Make way for justice #4, TRIAL International and its partners FIDH, ECCHR, REDRESS and FIBGAR illustrate the international momentum towards accountability through 58 cases, involving 126 suspects.

126 MADE ACCOUNTABLE FOR THE GRAVEST CRIMES

Rarely has the fight against impunity been so dynamic. In 2017, countries in Africa, Europe, North America and Latin America have tightened the net on war criminals by resorting to universal jurisdiction.

This principle enables States to prosecute alleged authors of international crimes such as genocide, war crimes, or crimes against humanity, regardless of their nationality or where the crime was committed.

To overcome the specific challenges of universal jurisdiction, a wide number of States have set up specialized war crimes units (WCU). Last year alone, these units reportedly investigated, prosecuted or brought to justice 126 suspects of the gravest crimes.

Many more investigations are ongoing. “States who commit sufficient means to specialized units are leading the fight against impunity today by turning the word justice into action” says Valerie Paulet, Trial Watch coordinator and author of the report.

STRENGTHENING THE MEANS TO FIGHT AGAINST IMPUNITY

The Make way for Justice #4 report also points to these achievements’ prerequisites. Strong WCUs have in common sufficient resources and staff and enjoy a high degree of autonomy as well as specialized and diversified State expertise from departments such as the police or immigration.

In contrast, the United Kingdom has, for instance, merged its WCU with counter-terrorism and the work of Swiss’ WCU is weakened by having to share its resources with the mutual judicial assistance’s unit.

Philip Grant, TRIAL International’s director, underlines the need for improved coherence and efficiency in investigating and bringing to justice universal jurisdiction cases. “Prosecution of war crimes requires sufficient resources and independence. States that are lagging behind in implementing universal jurisdiction must step up efforts to equip prosecutors accordingly.”

Discover the report

Learn more on Universal Jurisdiction

What is universal jurisdiction?
Read Make way for Justice #3 (2017)
Read Make way for Justice #2 (2016)
Read Make way for Justice #1 (2015)

The Human Rights and Justice Centre (HRJC) will improve access to justice for victims of human rights violations in Nepal such as torture, enforced disappearances, extrajudicial executions and sexual violence.

TRIAL International has been working on Nepal since 2009. Recognizing the need for a stronger in-field presence, it has now established its first litigation center in Kathmandu.

The HRJC will provide free legal support and representation services to victims, regardless of their background, or religious or political affiliation. It will litigate cases both domestically and internationally, a rare feature in the Nepali landscape.

An innovating and participative approach

Staffed exclusively by locals, The HRJC will work with a network of trusted Nepali lawyers, all of whom have received special training by TRIAL International.

“The HJRC is designed as a hub for human rights lawyers, victims and activists” explains Ranjeeta Silwal, Human Rights Coordinator. “All cases are selected and analyzed by the HRJC, before being assigned to the most adequate lawyer on its roster. A HRJC legal advisor – specialized in human rights issues – will follow the case throughout the proceedings, in synergy with the appointed lawyer and the victim”

The HRJC will also aim to empower local actors, from lawyers to victims themselves. It will provide specialized trainings and coaching to lawyers, but also legal assistance to NGOs working on documentation and litigation. Additionally, the HRJC organizes regular empowerment workshops for victims, so that they can better understand their rights and be more involved in the proceedings.

Fostering broad cooperation

Finally, the HRJC believes that a culture of human rights in Nepal must also be built at a structural level. It will therefore lobby domestic authorities for fairer laws and policies, with a particular focus on implementing decisions of the United Nations human rights bodies.

The Centre will be helped in its mission by broad range of partners in Nepal and outside, such as other non-governmental organisations, diplomatic bodies, and individual experts.

“It is consistent with TRIAL’s ethos that we build bridges and work collaboratively. All actors fighting impunity in Nepal must come together to bring about lasting change” concludes Helena Rodríguez-Bronchú Carceller, Head of the Nepal program at TRIAL International.

Lenin Bista was recruited at the age of 11 by the Nepali Maoist guerilla. After suffering from war, violence and humiliation, he is now campaigning for his rights and those of his peers.

In August and November 2017, the Human Rights and Justice Centre (a partner organization of TRIAL International) organized, in Kathmandu, a training* for former Nepali child soldiers. Lenin Bista attended this training to gain knowledge on various documentation techniques and advocacy at the international level.

Read Lenin Bista’s illustrated story: “It feels like a scene of a war movie, but it was my life”

*The project is supported by the German Embassy in Nepal

Doctor Mukwege founded Panzi Hospital in Bukavu in 1999. Since its inception, more than 50’000 women, including the young victims of Kavumu, have been able to receive treatment. He discusses this case that left such a strong mark.

How did you feel when minors from Kavumu, all victims of the same modus operandi, began to rush to receive treatment in your hospital?

The influx of these raped children came as a great shock for the whole medical team and myself. Impenetrable barriers had been breached: impunity had conceived the unspeakable.

The trauma was deep for all of us in the operating room. It was the first time that I saw the whole team burst into tears. Even those who ordinarily express their emotions with restraint could not resist. It was very painful to see these innocent children suffer as a result of human stupidity, in a context without protection, without justice, in brief: without recourse.

Can you tell us a little bit more about the work carried out by local experts in DRC and the role that they played?

Local actors played a very important role, starting with our paralegals who did not succumb to the threats stemming from the executioners and their accomplices. For each case, they would warn our legal clinic and our mobile team would then undertake dangerous trips in order to collect the victims and bring them to Panzi Hospital. They are the ones who gathered the first information pertaining to incidents, by documenting and collecting pieces of evidence.

How did you proceed at the hospital level?

The holistic care was meticulously undertaken. Practically, the hospital conducted: a general physical examination, a physical damage examination with scientific photographs, a psychological evaluation and the draft of a medical certificate. Frequently, as the children arrived within 72 hours, a prevention kit for HIV and sexual transmitted diseases was immediately administered. The surgical treatment would follow thereafter, according to the location of the injuries and their severity.

These cases were subject to two scientific publications from us on the international level as we were facing situations that had never been previously published*.

We continue the medical and psychological monitoring, considering that to this day, scientific literature does not tell us what the future will hold for these women, on the sexual, fertility and psychological levels. This follow-up work is crucial for the future of these children, even after the verdict.

What were the major difficulties throughout the course of this investigation which ultimately lead to a historical trial?

The executioners almost had an immunity status in society. They were untouchable. And anyone who resisted to this state of affairs risked paying for it with their life, with no consequence whatsoever for the executioners. We must not lose sight of the fact that there were murders, men’s deaths in this case.

As a consequence, members of V-Men**, my team and myself, went to Kavumu to sensitize men concerning this plague. So they would engage themselves against the omerta, the gossip, the corruption.

It was our duty to counter this general sense of fear felt by the population whenever they had to express themselves on the subject.

Did another case affect you in such a manner throughout the course of your career?

The assassination of my patients and staff at the Lemera Hospital in 1996.

They were harmless, like the children…

*Classification of rape-induced urogenital and lower gastrointestinal lesions among girls aged 5 years or younger. Published in the « Journal of Gynecology and Obstetric »

Treatment of rape-induced urogenital and lower gastrointestinal lesions among girls aged 5 years or younger. Published in the « Journal of Gynecology and Obstetric »

** Movement in favour of gender equality, launched 10 years ago in New York. Doctor Denis Mukwege sponsors the movement V-Men DR Congo