Communication Department, Author at TRIAL International

Caritas was raped at the age of ten. In an unusual turn of events for Burundi, a trial took place… unfortunately under unfavourable conditions.

The Facts

In Burundi, holding a trial against a member of the military is rare enough to warrant praise. As a general rule, men in uniform enjoy total impunity. Perhaps this time the facts were too overwhelming to turn a blind eye: a raped minor, the accused caught red-handed, and several witnesses…

For once, the legal machine swung into action. In six years of work on the country, this is the first time that a case led by TRIAL resulted in a trial at the national level. Given the inertia of the Burundian justice system, TRIAL’s cases are most often brought before regional institutions or UN bodies.

“The case was thoroughly examined by the police and the prosecutors”, rejoices Mr B.N., a lawyer trained by TRIAL International and the victim’s legal representative. “We had great hopes that Caritas (real name withheld) would obtain justice.”

Unfortunately, optimism was short-lived. From the very outset of the trial, the number of irregularities only increased.

Proceedings

Among other anomalies, Mr B.N. has been cut off several times when he attempted to support the allegations of the public prosecutor. When he requested that the judge ask the accused and the defence witnesses certain questions, the judge refused, promising that observations could be submitted at the end – a promise that was never fulfilled.

What is worse, discussions took place between two defence witnesses and the accused. After being heard, witness X consulted outside the courtroom with witness Y, also on the side of the defence. Only afterwards did the latter appear before the judges. Similarly, witness Y was allowed to speak to the accused in open court. Such practices seriously hamper attempts to establish facts because the accused and the witnesses are able to match their testimonials.

“Despite our protests, the judges minimised these gestures. The witness and the accused were heard nevertheless: both gave a new version of the facts. All of this happened right in front of the judges”, Mr. B.N. said, astonished.

Decision

Despite the irregularities in the proceedings, TRIAL hopes that the verdict will vindicate the young victim and punish the culprit. It is high time the Burundian justice system adopted a firm stance against crimes committed by the military.

“Caritas is only ten years old. She deserves justice and reparation”, says Pamela Capizzi, Legal Adviser and Head of TRIAL International’s Burundi project. “If the Burundian justice system is unable to respond to the need for justice of young Caritas, it does not deserve its name”.

The verdict is expected in the coming weeks.

A UN decision and years of lobbying have been necessary for Alma M. to uphold her rights. Now, at last, she has received tangible acknowledgment of her sufferings.

What can be worse than experiencing the enforced disappearance of a loved one? Experiencing it, and then remaining in limbo for two decades, neglected by the authorities. This is what happened to Alma M. (real name withheld) in BiH.

Her husband was a member of the military when he was forcible disappeared. His family last saw him alive in August 1992, and had never known what happened to him. Now at long last, their right to reparation has been enacted.

For the first time since her husband was disappeared, Alma M. has received the pension she is entitled to: a happy conclusion to a long and exhausting battle.

A funeral and monetary reparation

Alma M. had been navigating arcane bureaucracy for years when she turned to TRIAL for help. Together, they brought her case before the United Nations Human Rights Committee (HRC).

In 2015, the Committee recommended that BiH established the truth about Mr. M.’s disappearance, bring those responsible to justice and redressed his wife accordingly. Since HRC decisions are not self-enforcing, relentless lobbying followed at the domestic level. Throughout it all, TRIAL stayed at the side of Alma M.

Now, thankfully, her life has taken a turn for the better. Last year, the mortal remains of her husband were found near Sarajevo. He finally received a dignified funeral, and his family now have a place to commemorate their loss.

Now, the payment of a monthly pension – an entitlement for the families of missing persons – acknowledges the wrongs she has been through. The sum she will receive from now on will considerably improve her dire living conditions.

UN decisions a paper tiger?

These improvements are significant steps forward, but not the end of the battle. In fact, the HRC also recommended both that the widow should receive adequate compensation and that the murderers of Alma’s husband were brought to justice. At present, they still enjoy complete impunity.

TRIAL International encourages BiH to fully implement the HRC’s decisions – not just for Alma M., but also for the 11 other families who still await its decision to translate into concrete change.

Read more about TRIAL’s work to enact HRC decisions.
Read more about enforced disappearances.

An op-ed by Daniele Perissi

Could the ordeal of Lemera’s victims finally end? An unrelated case before African Commission on Human and Peoples’ Rights may disentangle their situation in unexpected ways.

2009, in the village of Lemera, South Kivu. Seven women, two of which are pregnant, are raped by Congolese soldiers.

November 2014. The NGO REDRESS files a complaint with the African Commission on Human and Peoples’ Rights (ACHPR). The victim they represent, S.A., was also raped by soldiers.

What do these two events have to do with each other? Perhaps surprisingly, the case of S.A. could be instrumental in obtaining reparations for the victims of Lemera – and many others.

Shedding a light on DRC’s shortcomings

Today, TRIAL submitted an amicus curiae to the ACHPR on the S.A. case. Meaning literally “friend of the Court”, an amicus is a document submitted by an expert outside a legal procedure to guide the judges in their decisions.

There are numerous factual parallels between S.A. and the women in Lemera: they both concern the rape of destitute women in remote villages by the army. In both cases, Congolese courts have granted the victims reparations. And in both cases, despite the judicial ruling, they received absolutely nothing.

TRIAL turned every stone to obtain reparations at domestic level. Two years and thousands of dollars later, all avenues are exhausted and the women have still not received a penny. Their file is blocked at the Ministry of Justice.

This frustrating experience proves the impossibility to obtain compensation from the State, even in the presence of a judicial ruling – supporting REDRESS’ argument before the African Commission.

Reparations are a right, not a privilege

If the African Commission ruled in favor of S.A., it would formally acknowledge the shortcomings of the Congolese justice system. This, in turn, could prompt the national authorities to step up their efforts and redress both S.A. and the victims of Lemera.

This is TRIAL’s first amicus curiae and it embodies one of the NGO’s key fights: the right of victims to access reparations. This vital step towards closure often goes sidelined, and nowhere is it truer than in DRC. With no victim of sexual violence ever redressed, it is high time S.A., the Lemera women and countless other victims obtain their due.

Daniele Perissi, Head of the DRC program
@DPerissi

In other countries too, TRIAL fights with victims so they can get redressed. Read about our successes in Bosnia and Herzegovina and in Nepal.

An op-ed by Philip Grant

President Trump’s support for torture goes against everything TRIAL International fights for.

In a recent television interview, the new President of the United States (US) unambiguously defended the use of torture against suspected terrorists. Referring to ISIS atrocities, he argued that “we have to fight fire with fire”, concluding that waterboarding – a torture method simulating drowning – was instrumental to making the US safer.

Mr. Trump’s bid to keep torture “within the bounds of what you’re allowed to do legally” is all but a trickery: torture is never legal – and has not been for a long time.

An unbreachable international ban

Arguing that torture may, in some circumstances, be legal rests on the dangerous assumption that its use can be “moderate” or “proportional”. But no: torture is the most profound violation of an individual’s moral and physical integrity. It tolerates no half-measures. If “minor” mistreatments are allowed, where is the threshold set? Could so-called “emergency scenarios” justify torture? Such trade-offs are murky water indeed and the downslide all too quick. History abounds with examples thereof.

This is why torture has been unequivocally prohibited in many international treaties: The Convention Against Torture, the International Covenant on Civil and Political Rights and the Geneva Conventions, to name but a few. The US is party to all of them.

Even beyond international treaties, torture has long-since been considered as jus cogens: a fundamental, overriding principles of international law, from which no derogation is permitted. Subsequently, the ban on torture applies to all States without exception – even those that have not ratified international treaties relating to this crime.

So even if Mr. Trump signed the US out of all treaties it is now party to, the fact would remain intact: torture is illegal. No matter where, no matter how, and no matter against whom.

Torturers will be punished

TRIAL International fights torture and other international crimes daily, by ensuring its authors are brought to justice. The recent arrest of Gambia’s ex-Minister Ousman Sonko proves that those who resort to – or condone – torture, regardless of their rank, can be prosecuted and punished.

In 2011, when former US President George W. Bush announced his visit to Geneva, TRIAL was contacted by NGOs working on behalf of torture victims in Guantanamo. The organization lent its legal expertise to prepare a criminal complaint against Mr. Bush, who shortly after cancelled his trip. Today, just like in the past, there can be no double measures: Mr. Trump will be held accountable too.

I sincerely hope that the new President will reconsider his support for torture. In the meantime, civil society organizations – starting with TRIAL – will keep fighting for the right of every individual to integrity and protection. We will not give way to fear and will stand firmly on the side of justice.

Philip Grant, Director
@PhilipGrant40

Join the fight: donate to TRIAL today.

Sarajevo, 27 January 2017 – Today, the NGO TRIAL International submits a complaint to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) on behalf of a war rape survivor. In the submission, TRIAL International demands the prosecution and adequate punishment of those responsible for the crime, the formal recognition of the survivor as a civilian victim of war and reparation measures.

When she was raped in a Bosnian village in 1995, the victim immediately reported her rape to the police, and then again in 2009 to the BiH Prosecutor’s Office. In addition, numerous letters were sent to judicial and police institutions demanding the prosecution of the perpetrators. To this day, however, no one has been identified, let alone punished for the crime. TRIAL International is now bringing the case before the UN so that the survivor can finally uphold her rights.

“The state of BiH has to acknowledge its responsibility for the violation of the rights of the applicant and issue an official apology. Furthermore, it has to take an array of measures in order to rectify this violation, such as criminal prosecution of those responsible for this crime,” stated Adrijana Hanušić Bećirović, Senior Legal Adviser at TRIAL International.

The many violations of the Convention on the Elimination of all Forms of Discrimination against Women, described in TRIAL’s submission, reflect the systematic failure of the State of BiH to protect the rights of wartime sexual violence survivors.

Victims’ way to justice is long and arduous

Many other wartime rape survivors are still waiting for justice to be done. Troublingly, laws on remuneration for wartime victims treat differently certain survivors based on their place of residence; the survivor in the CEDAW case is one such individual. In addition to the fact that she has been denied justice, she has been deprived of her right to monthly remuneration and other forms of social protection.

To ensure that such violations will not be repeated, TRIAL International calls on BiH to amend existing legislation so that wartime sexual violence survivors have equal access to social protection and reparative measures, regardless of where they live. This particular demand is targeted at Republika Srpska (RS), which must change its laws to create a special social protection category for survivors of sexual violence. In addition, RS must abolish restrictive time limits for submitting requests for damages and other forms of redress.

TRIAL’s complaint to CEDAW also refers to the need to adopt measures to further improve the status of war rape survivors, such as the adoption of the Strategy on Transitional Justice, the Programme for improvement of the status of survivors of conflict related sexual violence, and the Law on the Rights of Torture Victims.

Improving victims’ information about on-going prosecutions and investigations, and if and when survivors can expect trials, is paramount. As part of this effort, judicial and law enforcement personnel need to be fully aware of this, and to act accordingly. Bosnia and Herzegovina has to uphold to the highest international obligations, by committing itself to ensuring that justice is done and wartime survivors’ rights are fully upheld.

Geneva, 26 January 2017 – Dictator Yahya Jammeh has reigned for 20 years over Gambia – a reign that saw the widespread use of torture and extrajudiciary executions. The Swiss prosecuting authorities will now have to determine whether one of his closest collaborators, former Minister of Interior, Ousman Sonko, has participated in these crimes.

Since the early 2000s, the international community has repeatedly denounced the brutality of the Gambian regime. The United Nations, NGOs and regional courts have all outlined the numerous exactions committed by the State.

One of the regime’s strongmen, Ousman Sonko, is currently in Switzerland. This former Minister of Interior (2006-2016) was head of the police and of detention centers. Could he really have been unaware of the ongoing human rights violations?

“As the head of detention centers, M. Sonko could not have ignored the large-scale torture that political opponents, journalists and human rights defenders suffered there”, says Benedict de Moerloose, Head of the Inquiries and Criminal Law Division at TRIAL International.

Criminal complaint against Ousman Sonko

Asked to step down on 16 September 2016, Ousman Sonko has fled to Senegal and then to Sweden, where is asylum application was rejected. He allegedly entered Swiss territory on 10 November 2016, where he also filed for asylum.

Tipped off about his presence, TRIAL International lodged a criminal complaint before the Bernese prosecuting authorities on 25 January 2017. Given the suspicions weighing on the former Minister, the NGO demanded the rapid opening of proceedings on torture accounts.

Arrest and procedure

The Bernese prosecuting authorities arrested the suspect on 26 January 2017, in accordance with the Convention against Torture and the Swiss Criminal Code.

Following his arrest, the Bernese authorities head the suspect and decided to keep him in preventive detention for three months. The charges against Ousman Sonko were requalified as crimes against humanity and the case should now be transferred to the Office of the Attorney General of Switzerland (Ministère public de la confederation).

“We welcome the arrest of the suspect and the authorities’ reactivity”, says Philip Grant, Director of TRIAL International. “We now hope that the relevant prosecuting bodies will meet the importance of the case with a sufficiently funded investigation.”

To this day, the crimes of Jammeh’s government have never been judged, and torturers walk free in complete impunity. Now that Gambia is preparing for a democratic transition, proceedings against M. Sonko would be a symbol of hope for many victims.

An op-ed by Pamela Capizzi

The country showed no sign of improvement in 2016, perpetuating a detrimental situation for human rights.

By definition, a crisis is a transitional state. In Burundi, however, the “crisis” has lasted for almost two years and seems anything but transitional. Widespread repression is here to stay.

In 2016, the political situation in Burundi did not improve a bit. On the contrary, the Burundian authorities dug their heels in and gradually cut ties with the international community. Among the most notable examples are the retraction from the Committee against Torture’ examination and the withdrawal from the International Criminal Court.

These political gestures have been accompanied by a significant shrinking of the already reduced democratic space. Following the suspension of numerous civil society organizations at the end of 2015, Burundi suspended several others in 2016. Deprived of their assistance, abuse victims find themselves even more powerless than before.

At the same time, independent media have been reduced to silence by threats and attacks. The exodus of journalists and human rights defenders has only grown: dozens are now living in exile.

Human rights violations occur on a daily basis. According to the UN’s latest estimations, “More than a thousand people have been killed. Thousands have been tortured, (…) hundreds have disappeared, and thousands have been illegally detained”.

Even worse, these violations remain largely unpunished. Burundi is pursuing neither past nor present violations. The State is therefore incapable of preventing future abuse, a prerequisite to peace and transitional justice.

TRIAL will pursue its action nonetheless

In 2016, TRIAL International continued to chip at the “culture of impunity” that reigns in Burundi. 33 direct victims or families of victims have received free help in their pursuit of justice. 54 lawyers have taken part in TRIAL’s human rights trainings to tackle this crisis.

Despite the many challenges that stem from this situation, particularly with regard to security, TRIAL will continue its action in Burundi. My own expulsion from the country will certainly not halt our involvement: TRIAL will stand firmly by the victims.

Pamela Capizzi, Legal Advisor
@PamelaCap1

Across Bosnia and Herzegovina, thousands of women struggle with the scars of wartime sexual violence. TRIAL International has met the professionals who help them regain agency and confidence.

Degraded, objectified, dehumanized. These words often come back in the mouth of sexual violence victims. The trauma of wartime sexual violence is not limited to physical pain, striking at the essence of victims’ dignity and character. According to neuropsychiatrist Alma Bravo Mehmedbasic, the intimate – often taboo – nature of sexual crimes results in a “combined torture” that leaves lifelong scars – both visible and invisible.

Post-Traumatic Stress Disorder (PTSD), including sleeping problems, mood swings, difficulty concentrating and paranoia, is often cited as a consequence of sexual violence. But for Alma Taso Deljkovic and Tanja Tankosic of the Witness Support Section of the Court of BiH, this description is reductive. “PTSD is the lightest version of trauma the victims would have. In some instances, it is closer to a permanent change of personality. The trauma can even permeate the next generation; we have encountered victims’ children presenting major psychological issues.”

The unspeakable crime

Alarmingly, these issues often go untreated. Alma Bravo Mehmedbasic estimates that the vast majority of victims have never received psychological support. Medical services are insufficient in rural Bosnia, and victims are often unable to travel to urban centers for treatment.

Another, less tangible factor is also at work: the victim’s feeling of humiliation, born from the country’s patriarchal culture. Aleksandra Petric of United Women Banja Luka observes: “In Bosnia, even if rape happened in peacetime, victims are judged for provoking that kind of crime.”

Besima Catic is a psychotherapist working with victims of sexual violence. A large part of her job is removing the burden of the assault from women’s shoulders. “I explain to them that what happened was involuntary, they didn’t want that. It happened without their permission so they shouldn’t feel guilty.”

Nevertheless, many women continue to suffer in silence, with limited access to the type of treatment described by Catic.

Closure through justice

What does help victims move forward is seeking justice, especially seeing their aggressors punished.

Besima Catic deems this yearning intrinsic to the psychological makeup of most individuals: “When someone hurts us, it is normal that you want this person to be punished. It is necessary satisfaction for victims. Sanctions make them feel like the moral order has been restored.” Likewise, psychologist/psychotherapist Teufika Ibrahimefendic believes that seeing perpetrators brought to justice is a form of recovery in itself.

But the process is not without psychological hurdles, and not all courts in Bosnia and Herzegovina provide victims who testify with adequate support. Besima Catic and Teufika Ibrahimefendic have found that common triggers of retraumatization for victims include meeting their perpetrators face to face, cross-examination, and questioning about the details of the sexual act. As Catic observes, “in those situations, the woman becomes the victim again.”

Preparing the victims to face their past

Teufika Ibrahimefendic regularly counsels survivors. She emphasizes the importance of reviewing testimony with them before they enter the courtroom. From her perspective, sexual violence survivors need to “first say what happened to them in a secure and protected environment, before they must speak about these kinds of details in front of unknown persons.”

Ibrahimefendic therefore works with survivors to find the “appropriate language” to convey their experiences to the court. She finds that this process “helps victims feel more relaxed and not ashamed, not guilty or shy, so that they can more easily talk about the things that happened to them.”

Making proceedings more victim-friendly

Given the extreme vulnerability of some victims, it is vital to make their path to justice as smooth as possible. That’s when the expertise of TRIAL International comes in.

The first step is raising awareness amongst key actors about victims’ potential trauma. Legal professionals in the courtroom often lack this knowledge and may therefore inadvertently put the victim through unnecessary pain. For this reason, TRIAL International conducts trainings for prosecutors, judges and lawyers on international human rights standards, including how to best accommodate survivors’ psychological needs.

TRIAL International also addresses other practical hurdles, such as administrative difficulties, prohibitive costs and security concerns. The NGO advocates for legislative amendments to ensure that all victims, no matter how vulnerable or isolated, can uphold their right to justice.

“In the 10 years we have been present in the country, we have witnessed many improvements and achieved significant victories”, says Selma Korjenic, Head of BiH program at TRIAL International. “But there is still a long way to go for women to reclaim their rights and dignity.”

Read the report: Compensating Survivors in Criminal Proceedings, Perspectives from the field.

Watch the testimony of a victim

Geneva, 18 January 2017 – The case against Khaled Nezzar was opened by the Office of the Attorney General (MPC) of Switzerland in 2011 for alleged war crimes. Five years later, however, the MPC concluded against all expectations that the alleged acts by the former Minister of Defense could not be considered as war crimes on the grounds that there was no war in Algeria when the facts occurred. TRIAL International, the NGO that filed a criminal complaint with Swiss authorities against Khaled Nezzar, believes this ruling is incomprehensible and supports the civil parties in their appeal before the Swiss Federal Criminal Court.

It took the arrest of the accused, several years of proceedings and numerous hearings of witnesses and victims for the MPC to consider that the classification of the crime did not, in the end, justify holding a judgment. A decision by the Federal Criminal Court (TPF) could, however, reset the case in motion.

“We have filed an appeal before the Federal Criminal Court in Bellinzone. It is indeed incomprehensible that the MPC has investigated for five years, questioned some fifteen witnesses and even went so far as to send an International Letter Rogatory to Algeria without ever questioning the existence of an armed conflict, before abruptly concluding that that was not the case”, says Pierre Bayenet, one of the civil parties’ attorney-at-law contacted by TRIAL International.

According to the NGO, ample evidence indicates that the numerous acts of torture reported by the victims were indeed committed by the army as part of a particularly deadly armed conflict. “The “Black Decade” has resulted in 200,000 casualties and many sources illustrate the intensity of the combats between armed groups and the Algerian army after the coup d’état. In spite of that, there is a quasi-total impunity for these facts. It is high time this changes”, says Philip Grant, Director of TRIAL International.

Civil parties agree with this view: “The reason why the case was dismissed is an insult to victims who were tortured during the dirty war. They have experienced that war in their flesh and denying its existence is a new form of violence towards them”, says Damien Chervaz, another attorney-at-law for the civil parties.

TRIAL International supports their appeal and hopes that the TPF confirms the existence of an armed conflict in Algeria at the time of the events. It will then be incumbent upon the MPC to rule on the charges against Khaled Nezzar for numerous acts of torture.

____

THE NEZZAR CASE AT A GLANCE

Khaled Nezzar was Minister of Defense and President of the High Council of State in Algeria from 1992 to 1994. In October 2011, following a criminal complaint filed by TRIAL International, he was taken into custody in Switzerland for having authorized or incited his subordinates to commit acts of torture, murder, extrajudicial executions, enforced disappearances and other acts constituting war crimes. He was released in exchange for promising to participate in subsequent proceedings.

BACKGROUND INFORMATION

The “Black Decade” in Algeria (1992-2000) caused between 60,000 and 200,000 deaths or disappearances. Human rights violations were widespread in the country and the use of torture was systematic. As head of the army and Number 1 in the regime, Khaled Nezzar could not have been unaware of his troops’ actions. The impunity for these events is total. Nobody has ever been prosecuted, let alone sentenced, for these crimes in Algeria.

FACTS AND EVIDENCE

The evidence against the accused includes testimonies of victims and witnesses, among whom former members of the security forces calling him directly into question; reports from NGOs, the United Nations and the United States Department of State, stating the systematic practice of torture and other crimes committed by the regime.

CHRONOLOGY OF THE CASE

19 October 2011: Khaled Nezzar is reported to be present in Switzerland. In accordance with its mandate, TRIAL International files a criminal complaint with the Swiss Office of the Attorney General (MPC), which opens an investigation.

20 October 2011: Khaled Nezzar is taken into custody and questioned by the MPC until 21 October, before being released in exchange for promising to participate in subsequent proceedings.

January 2012: Khaled Nezzar files an appeal against the prosecution of his case, arguing that his position as Minister of Defense at the time protected him from criminal prosecution in Switzerland.

July 2012: The Swiss Federal Criminal Court makes a historical decision following the appeal and rejects Khaled Nezzar’s claim, considering that immunity could not be invoked for international crimes (war crimes, crimes against humanity or genocide).

13 August 2014: The MPC sends a draft of an International Letter Rogatory to the Federal Office of Justice, but it was not forwarded to the Algerian authorities until 7 April 2015.

2011 to 2016: Five victims file a complaint and sixteen persons are heard in the proceedings.

November 2016: The MPC hears Khaled Nezzar once again.

January 2017: The MPC dismisses the case.

18 January 2017: The civil parties announce they will appeal the decision before the Federal Criminal Court.

Eighteen months after Erwin Sperisen received a life sentence for the murder of ten prisoners, his hierarchic superior is facing trial for the same facts before a Spanish tribunal.

Carlos Vielmann is the former Minister of Domestic Affairs of Guatemala. He took his position in 2004 and himself placed Sperisen at the head of the national police. In 2007, he resigned following several scandals, including the murder of four prisoners in their cells. Vielmann then moved to Spain, where he was granted citizenship in 2009.

His past cropped up again in an inquiry by the International Commission against Impunity in Guatemala (CICG) and he was indicted in 2010 for having formed, along with Sperisen, a parastatal criminal structure. That structure would have planned the murder of 7 prisoners in the Pavon prison and 3 in the Infiernito prison.

The charges are consequent and the prosecution demands 160 years’ imprisonment and 300’000 euros’ compensation for the victims.

Vielmann was present on the crime scene

Like in the case of Sperisen, the defense should plead for acquittal, in spite of substantial evidence against the accused.

Indeed, in the case of Pavon, Vielmann was himself on the crime scene, where the murder had been grossly camouflaged as a fight. The CICG inquiry also showed that he was constantly updated on the phone – endorsing an exceptionally hands-on role for his position. The capture of the prisoners was also filmed, before their bodies were found riddled with bullets.

The trial will run over 2 months with over 20 witnesses called to the bar – of which a dozen from Guatemala via videoconference.

A crucial moment for this country plagued by violence and corruption, the trial will also be closely followed by victims and human rights organizations, who have tirelessly denounced these crimes – sometimes at their own risks. Let us hope that the judgment will satisfy their hopes and that justice will prevail, as it did in the Sperisen case.

Background

The Infiernito prison is a high-security compound in the outskirts of Guatemala City. In October 2005, 19 prisoners managed to escape. Sperisen and other officials in charge of domestic security are accused of having launched the “Gavilan Plan” to find the runaways and execute them. A reward was offered for any information on their whereabouts. 3 prisoners were executed, and the crime scene was later camouflaged to hide this disproportionate use of force.

Pavon is also a high-security prison outside Guatemala City. On 25 September 2006, an operation to retake its control was launched. Over 3’000 policemen, members of the military and penitentiary officials were mobilized. During the operation, 7 prisoners were executed. Here too, the scene was camouflaged to give the impression these deaths occurred in a fight.

For the first time in Nepal, torturers have been ordered to pay compensation to their victim. Unfortunately, they also still roam free.

Mr. Tamang was tortured by policemen when he was just 11. He was beaten, electrocuted and forced to “confess” to stealing jewels. When he left the police station, he bore physical and mental scars that would haunt him for the rest of his life. His education prospects, in particular, have been thwarted.

An encouraging precedent

Since Mr. Tamang was underage when he was tortured, his case was examined in the light of the Children’s Act, instead of the Compensation Relating to Torture Act. What first seemed like a legal technicality proved instrumental in setting an interesting precedent in the country.

The Court ruled that Mr. Tamang should be compensated by the responsible policemen, and not from State funds. The decision was made possible by the Children’s Act, whose formulation allows the direct payment of compensation by the perpetrators. The Compensation Relating to Torture Act, on the other hand, requires the State – not the accused – to redress the victim.

It is the first time a Nepalese court takes such a stand in a torture case, setting an exciting precedent for victims countrywide. Fundamentally, it sends the message that the State should not protect offenders for their violations.

Torture remains rampant and under-punished

Unfortunately, the Nepalese court have not gone all the way in their condemnation of the crime. Rather than ordering a prison sentence, the judges simply fined the two policemen. This is allowed under Nepalese law because torture is not a criminal offense.

This leaves the victim, understandably, with mixed feelings. What is the meaning of compensation if those who tortured him remain unpunished?

The amount Mr. Tamang was offered seems to point in that direction: it does not nearly cover the prejudice he has suffered, in terms of health and education perspectives. Other, non-pecuniary forms of reparations, such as medical and psychological assistance, or guarantees that the crime will not occur again, are notably absent.

“The Nepalese courts have missed a great opportunity to take a strong stand against torture. There are encouraging steps forward, but it is far from being deterrent enough to prevent future crimes”, says Head of Nepal program Helena Rodríguez-Bronchú Carceller. “Only when victims are comprehensively redressed and perpetrators adequately punished will the use of torture recede in the country.”

An Anti-Torture Bill is currently under examination before the Nepalese parliament.

Read more about the Anti-Torture Draft Bill in Nepal.

Vulnerability and impunity are mutually conducive

Other factors of a sinister and insidious nature contribute to impunity, often linked to the political and social fabric of the country: authoritarian regimes and conflict-prone zones are pockets of lawlessness where victims’ cries often go unheeded, or only to be heard at the expense of their lives.

In these contexts, the legal system is also more open to external influences: intimidation of judges, “disappearing” case files, blackmail and bribes without number. Unfortunately, those who are the most implicated are often the most protected by the status or their personal relations. Furthermore, cognizance of their shielded status could render them more susceptible to commit the most heinous crimes.

The rights of victims twice scorned

When impunity reigns, victims’ access to justice is gravely diminished. Some fear retaliation against themselves and their families. Others lack the financial means to lodge a complaint, and may be further hindered by their own illiteracy and the remoteness of their lodgings. Very few have enough confidence to file a complaint, discouraged by the absence of credible channels for legal recourse.

Deprived of justice, victims also live in fear of a fresh onslaught of new crimes. If the perpetrators are not punished for their behavior, they are effectively free to launch new attacks and this leniency can be perceived as an encouragement to commit other crimes.

Impunity therefore erodes human rights and justice as a whole. It sustains a hostile climate where lasting peace cannot prevail.

Six ways in which TRIAL International fights impunity

It calls for inclusive laws respectful of the rights of victims

It raises awareness among judges and prosecutors on good practices and international standards

It assists lawyers with the handling of their cases

It takes cases to international judicial bodies and ensures that their decisions are implemented

It files criminal complaints against suspected criminals on Swiss or European soil

It trains lawyers and human rights defenders so that they may bring about enduring change

For the second year in a row, 8 Congolese lawyers underwent personalised legal training for a year. From theoretical classes to practical exercises, two participants look back on their experience.

TRIAL: Can you please introduce yourselves and explain how you heard about the training?

Ms Ghilaine Bisimwa Naweza: I am a lawyer at the Bar of Bukavu since 2010, specialising in human rights. I am also a member of the Association of Congolese Women Lawyers of South Kivu, which defends and promotes human rights in the region. I had already received training from TRIAL International through this association relating to the documentation of sexual violence. I found it very concrete, so I applied for the year-long training as soon as I heard about it.

Mr Jerry Ntondo Zahinda: I have been a lawyer in Bukavu for almost ten years. I am also a specialist in human rights, so I have done a lot of work related to access to justice and reinforcing the national judiciary system. I heard about this training through a friend working for the ICRC in Bukavu. I was immediately interested by the contents of the training and its methodology, based on the study of specific cases.

What challenges do you face in your work as a lawyer?

Ms Ghilaine: There is not only one but many difficulties, and they are mutually reinforcing. At the end of the training, I began to appreciate the degree to which judges are insufficiently trained with regard to international legal instruments. Even when a lawyer invokes them on behalf of a client, judges limit themselves to examining internal norms without any reference to provisions of international law, no matter how applicable these may be.

Mr Jerry: Indeed, national legal texts have serious shortcomings. The Congolese legal arsenal is fragmented and not adapted to the country’s legal realities and practices. You can even find legal texts that contradict one another! We also face difficulties when trying to meet with victims due to poor transport infrastructure and because some routes are unsafe.

Ms Ghilaine: Lawyers are also discouraged by the reigning double standards. Powerful individuals continue to escape justice. Clientelism and influence peddling remain strong, and regular escapes from prison counteract our efforts.

As part of the training you had to work on real cases. Can you tell us more about these?

Mr Jerry: I defended victims in the Mutarule trial. Three military leaders were accused of attacking the village of Mutarule, pillaging houses and committing a dozen murders. Thanks to TRIAL’s guidance, I was able to improve my legal analysis and enrich it with international jurisprudence. From a psychological point of view, the support of an NGO is reassuring, because the trial was marked by very high tension. TRIAL’s support gave me the courage to be significantly more proactive. The judges have yet to pass their judgment, but the fact alone that a trial of this kind was able see the light of day is a victory for us.

Ms Ghilaine: I was given the case of the young Stella (real name withheld), raped at 13 by a judge. Her case had been at a stalemate for over a year because the investigating magistrate was reluctant to pursue his colleague. TRIAL’s training helped me create a precise questionnaire for the victim and thereby obtain more incriminating evidence. We also explored new possibilities for gathering evidence. Thanks to our efforts, a trial began before the Court of Appeal in Bukavu.

How did the training change your way of working?

Ms Ghilaine: Before the training, I had worked on a rape case, but I did not know what questions to ask the victim. Another time, women who had been victims of sexual slavery called on me, but I had no answers to give them. I am now better armed to approach victims in a respectful manner, all the while obtaining incriminating evidence.

Mr Jerry: Before, I did not have the knowledge to refer to the African Commission on Human and People’s Rights or UN bodies. Several of my cases met the eligibility criteria, but I did not know where to begin. I now also know how to invoke the provisions of the ICC Statute, which I will be able to apply during war crime trials.

An op-ed by Valérie Paulet

The relevance of universal jurisdiction for torture or genocide has been widely acknowledged in the last few years. Time has now come for it to also tackle sexual crimes.

Upon taking her position in 2014, ICC Prosecutor Fatou Bensouda stated that fighting sexual violence would be on top of her agenda. This year, two high-profile cases have been heavily focused on the topic.

Firstly, Congolese warlord Jean-Pierre Bemba was condemned to 18 years imprisonment for rape as a war crime and a crime against humanity.

Secondly, this very month, the trial Dominic Ongwen opened with a strong message from the Prosecution: not only is the former Lord’s Resistance Army commander accused of ordering forced marriage, rape, torture and sexual slavery. But he will also have to answer for his direct participation to sexual crimes against his forced wives.

These landmark cases are essential, but they are only the tip of the iceberg. The ICC’s mandate is limited to certain situations and to prosecuting high-ranked individuals, leaving tens of thousands of sexual offenders beyond its scope.

States must face their own past

The ICC is based on the principle of complementarity, meaning that States bear the prime responsibility for prosecuting international crimes. This year, Guatemala has upheld this obligation with the trial of Reyes Girón.

The victims’ fierce determination to bring the Colonel to justice has finally paid off. He was condemned to 120 years of prison and $65,000 compensation to each victim for sexual violence, sexual slavery and domestic slavery during the Guatemalan war. It is the first time – worldwide – that a national court retains charges of sexual slavery during armed conflict.

Guatemala’s drive to address its dark past must be saluted and should set an example for other countries in post-conflict transition. The question is: will Syria, Irak, Yemen or Nigeria follow this path and prosecute sexual violence committed on their territories? The chances are thin.

Another way to justice

Truth is, prosecuting sexual crimes in armed conflict remains exceptional. The reluctance of States, the silence of victims and the lack of ICC jurisdiction on the situation are key limitative factors.

Yet we have had this year a spectacular example that justice can prevail against these odds: the conviction of Hissène Habré in Senegal. After a seventeen years fight, the former Chadian dictator was finally brought to justice under the principle of universal jurisdiction. He was the first former head of State to be convicted for rape.

Countless invisible victims from Central African Republic or Burundi have seen in this trial a beacon of hope. Safe havens for sexual offenders are shrinking, but not fast enough: it is high time States embrace universal jurisdiction for the ground-breaking tool it is to fight sexual violence worldwide.

Valérie Paulet, Trial Watch Coordinator
@valeriepaulet

The government’s proposal to criminalize torture is riddled with loopholes, as illustrated in the fictitious case of human rights defender Bilash.

Nepal acceded to the United Nations Convention Against Torture (UNCAT) in 1991, thereby committing itself to criminalizing torture, preventing its occurrence and redressing victims.

Until today, the country failed to fulfill this obligation. Torture has been, and still is, committed on an alarming scale in Nepal. Since 2000, almost 1’000 complaints have been registered by the National Human Rights Commission – given the procedural hurdles to file a case, odds are the real figure is much higher.

Now, finally, an Anti-Torture Draft Bill (“Torture and Cruel, Inhuman or Degrading Treatment (Control) Bill”) is being discussed in Parliament. A blazing victory? Not quite.

Proposed Bill is welcome but incomplete

While the Bill is definitely a step in the right direction, its standards fall well short of those recommended by the UN Committee Against Torture.

This is not an obscure legal matter of standards: in its present state, the Bill contains so many loopholes that countless victims would be left out of its scope, effectively denied access to justice.

The Draft Bill’s shortcomings can be illustrated in very concrete terms using the fictitious case of Bishal*. While the following example is purely fictional, it is realistic enough to illustrate the difficulties actual victims could face if the Bill were adopted in its present state.

Tortured in his own house

Bishal is a human rights defender in Kathmandu. He regularly writes for a local newspaper, openly criticizing the government. He has been in the authorities’ line of sight for a while.

One afternoon, three local policemen knock on Bishal’s door. As soon as he opens, they force their way in and lock the door behind them. They start insulting Bishal, calling him a traitor; then one policeman slaps him, and the violence quickly escalates to punches and thrashing with their truncheon. The beating continues for an hour. Before losing consciousness, Bishal hears them threatening to harm his family.

When he regains consciousness, he is at the hospital. His wife has found him lying in a pool of blood and brought him there immediately. He stays in medical care for two months, receiving expensive treatments that his family can barely afford. Because Bishal cannot work in his state, they must both survive on her wife’s meagre salary.

Too little time for victims…

For another month after leaving the hospital, Bilash is too scared to report his torture. But finally, his wife convinces him to report his aggression. If he does not, she fears the policemen will keep bullying him.

But at the police station, Bilash is told that he is too late: the statute of limitations provides a 90 days delay to file a torture case. Bilash argues that he was wounded and scared and could not come sooner, but the authorities are categorical: over 90 days after the crime occurred, the perpetrators simply fall through the mesh.

Let’s now change the scenario slightly: Bilash recovers faster and makes it to the police station within the imparted time. When the authorities require him to state the “period and reason held in detention”, he is taken aback: he was beaten in is house, not detained. But the law only provides for torture charges in detention, and without information on said detention, the complaint cannot go through. In this scenario too, Bilash is unable to seek justice.

Let’s change once again the story: Bilash is arrested by the policemen and immediately brought to prison and beaten up there. The next day, he is drop off in front of his house, where his wife finds him and calls an ambulance. The victim recovers fast enough to file his case in time. He also provides information on his detention, and so his case is successfully registered and proceeds to a trial.

… too few consequences for criminals

Bilash hopes that his persecutors will go to jail and never be able to harm him again. But in the courtroom, the sole punishment the policemen receive is a 500’000 rupee fine (approximately 5’000 USD). Bilash is shocked that no prison sentence is pronounced, but the judge has indeed the right to punish torture with a simple fine instead.

Bilash at least hopes that the court will grant him reparations. He has been unable to work since his attack, and costly medical checkups still drain his finances. He also suffers from sleeping disorders and lack of concentration, leading his neighbors to gossip and distance themselves. Bilash’s fear that the police may hurt him again is relentless.

But the judges only grant Bilash a compensation of 500’000 rupees (approximately 5’000 USD). It is the highest possible sum, yet it is not enough to cover his loss of income nor the medical fees – let alone make up for his pain, humiliation and trauma. Outside of the sum of money, there is no sign of the broader range of reparations, including psychological care and legal and social services.

Not too late to turn the tide

With the Anti-Torture Draft Bill currently under discussion before the Nepalese parliament, this grim outcome can still be spared to real victims.

This week, TRIAL and four other NGOs have submitted a report to the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The report detailed the Bill’s aforementioned shortcomings, and many others.

“We encourage the Special Rapporteur to share our concerns to the Nepalese government”, says Helena Rodríguez-Bronchú Carceller, Head of the Nepal program at TRIAL International. “We also urge the Nepalese Parliament to bear these concerns in mind when discussing the Draft Bill.”

K. (real name withheld) was underage when soldiers of the Republika Srpska Army repeatedly raped her in 1992. Now a woman in her forties, she is more determined than ever to see her assaulters prosecuted and punished.

We had arranged to interview K. in the small city in northeast Bosnia where she lives. As soon as she walks into the quiet restaurant where we are meeting, she exudes strength and resilience. In spite of the crimes she suffered when she was barely more than a child, there is a stamina to her that commands respect. With remarkable openness, she speaks to us for an hour about the Bosnian criminal justice system and her hopes for the future.

Undeterred resolve for 23 years

K.’s quest for justice started back in 1994 when, with outstanding courage for her young age, she reported her rape to the authorities. Her complaint was registered, but the war was still raging across Bosnia and Herzegovina and her case was one of thousands relating to sexual violence: it was gradually forgotten.

K. makes no secret of her frustration at that period, especially since she was able to identify several of the men who raped her: “I was totally unsatisfied with the work of the prosecutor’s office. I was wondering what was taking so long”.

For decades, justice stood at a standstill. When K. approached TRIAL International in 2013, she had lost none of her determination to obtain justice at last. With the help of the NGO, an inquiry has now finally been opened.

What, then, has kept her going throughout all these years? She says she has successful precedents to thank for: “When I hear stories of victims like myself, who saw the perpetrator convicted and were granted compensation, it makes me more persistent and confident.”

Redress means empowerment

When we broach on the subject of reparations, K. is adamant that it is very different from conviction. She regards them as a more personal form of atonement. As another victim pointed out, “perpetrators are sentences by the state but compensation is the punishment that victims get.”

“I think perpetrators should pay compensation in addition to their sentence”, says K. animatedly. “Maybe if they are not in a position to pay they will ask the court to substitute years of imprisonment for money, and I don’t think that is right.”

In that respect, K. does not regard State pensions for wartime survivors as reparation. “I see pensions as social help, not as justice”, she shrugs. Also some of the interviewed victims share her view that pensions are important, but fail to empower victims the way compensations do. It puts them – once again – in a passive position.

“The perpetrators should think about the crimes they committed every time they pay me money. It is important as a symbolic measure, a deterrent for the future. These crimes cannot happen again.”

As the interview ends and we leave the restaurant, K. reiterates her belief that justice will prevail: “Even though it has been 23 years, I do believe that one day perpetrators will be arrested and prosecuted. I really do.”

Read the full report: Compensating Survivors in Criminal Proceedings, Perspectives from the field

An op-ed by Giorgio Malinverni

We celebrate the International Day for Human Rights at the close of a rough year for international justice. In spite of these setbacks, we should keep believing that human rights – and the right to justice in particular – are within reach.

For over half a century, the 10th December is an important day of the calendar for all human rights defenders. Throughout the world, countless activists, legal specialists, politicians and members of civil society reaffirm their commitment to guaranteeing fundamental liberties to all.

Access to justice is among the rights listed in the 1948 Universal Declaration of Human Rights, the adoption of which we celebrate today. And indeed, how can we uphold all our other rights without justice? How can we listen to and acknowledge victims? And how to punish the perpetrators to avoid further violations?

We are currently witnessing a weakening of the fight against impunity: some States are leaving the ICC or publicly disavowing it; the ECtHR is facing similar resistance. Other countries have taken refuge in political programs preaching autarky and the return of an almighty State.

Temporary backlashes do not jeopardize a stronger undercurrent

In this morose climate, it is tempting to see the adoption of the Universal Declaration of Human Rights like a bygone state of grace. But we should remember that this period of unprecedented progress came in the aftermath of World War Two. Other historical steps forward in human rights protection succeeded episodes of unspeakable cruelty.

This shows two things: firstly, that the past is not as rosy as we sometimes think it was; and second, that spectacular progress may arise after the most disheartening periods.

In spite of occasional setbacks, the fact remains that fight against impunity has never stopped gaining momentum. NGOs have never been so numerous to denounce abuse; every day, courageous men and women defend their rights and those of others.

As human rights activists, we must not give way to pessimism. Even if the road is winding, let us reaffirm in this day that we are confident in the future of human rights and the fight against impunity.

A former judge at the European Court of Human Rights, Giorgio Malinverni is the President of TRIAL International since 2012.