Author: Communication Department

An op-ed by Adisa Fisic

On the 68th anniversary of the Convention against Genocide, Bosnia and Herzegovina is still struggling to come to terms with its history.

As a young individual living in a post-conflict society, I have always wondered how someone could want to destroy a group of people for the simple reason that they are members of a different ethnic or religious group. And how it is possible that in the 20th century, we have not been able to prevent mass atrocities like those that occurred in the Balkans?

What makes genocide so special?

 What distinguishes genocide from other criminal offences is the existence of a genocidal intent. It must be proven that the crimes in question (killing, causing serious bodily or mental harm, imposing measures intended to prevent births in the group, etc.) were committed with the ultimate goal to destroy, in whole or in part, a specific group. As genocidal intent is notoriously difficult to prove in criminal proceedings, convictions for genocide are comparatively rare.

Genocide is also a morally loaded concept. Until today, it always provokes a reaction in public discourse in the Balkans. A case involving alleged genocide is widely covered by the media, with different stakeholders analyzing the case and the ways in which a verdict could potentially influence the reconciliation processes on the ground.

Ethnic division is a reality in present-day Bosnia

 The Srebrenica genocide is considered to be the worst on European soil after the Holocaust. And yet, ignorance and denial of that episode – where 8’000 boys and men were murdered – are still very much alive in the Balkans. It is not rare for officials from Serbia and Republika Srpska, an entity in BiH, to claim that crimes in Srebrenica did not amount to genocide and to reject the use of that term.

For example, in 2007 the International Court of Justice found that Serbia had breached the Genocide Convention by failing to prevent the genocide in Srebrenica. This was the first time that a state had been found in violation of the convention. Yet 3 years later, the Serbian parliament adopted a resolution condemning the Srebrenica massacre but failing to describe it as genocide.

Rejecting the use of the term genocide is not solely a legal matter. Sadly, this approach reflects the fact that there is still no common understanding of the wars in the former Yugoslavia. As a result, political utilization of historical facts still runs high. Even facts established by international courts are rejected as propaganda, while convicted war criminals are hailed as national heroes.

These divisions are seen in, and reinforced in the education system. certain schools still adopt the “two schools under one roof” policy, meaning that different ethnic groups are separated in different classes, which use different curricula and textbooks. With no opportunity to interact and no mutual understanding, how can future generations move forward and transcend the divisions that beget the war?

I am deeply worried that children born after the war will grow up having completely different understandings of recent history. Humanity failed spectacularly to prevent genocide in the 1990s. It is not too late, however, to prevent future generations from failing as well.

Adisa Fisic, BiH Legal Advisor
@AdisaFisic

 

Did you know that over 20 women are raped every day in the Democratic Republic of the Congo (DRC)? This everyday tragedy is experienced by many populations in conflict areas. Sexual violence is a weapon of war aiming at destroying individuals and the very foundations of whole communities. The victims’ physical wounds are matched only by the invisible ones they will suffer all their life.

Fearing retaliation and stigmatization, many chose to stay silent, so their aggressors remain unpunished. “The feeling of impunity has trivialized sexual violence. I hear stories of teachers raping their pupils, of judges sexually aggressing plaintiffs” says Daniele Perissi, Head of TRIAL International’s DRC program. “Those are the signs of a society that has lost its moral compass. This is what we should be reconstructing, starting with real sanctions.”

Such sufferings are unacceptable, which is why TRIAL International’s team is committed to helping victims to obtain justice and fighting the impunity of those responsible for these crimes. Since 2009, we have defended over 160 sexual violence survivors through our programs in the DRC, but also in Bosnia and Herzegovina and Nepal. Our staff has also trained over 100 lawyers and human rights defenders to documentation techniques and international law mechanisms.

As 2016 is coming to a close, TRIAL is particularly proud of two victories it has claimed in the last few months. In DRC, a military tribunal in Bukavu has condemned a soldier to 15 years’ imprisonment for the rape of Sylvie and Yvette[1] in 2013. With the support of TRIAL International, the two women have travelled for 3 days from their remote village to testify against their aggressor.

In Bosnia and Herzegovina, where at least 20’000 women have been raped during the conflict, TRIAL International has recently helped secure the first monetary compensations ever granted by a local jurisdiction to a victim. This decision follows the first ever successful compensation claim before national jurisdiction in 2015, which was also the result of our work in the country. It gives us great pride that these precedents will open the way to countless victims seeking justice.

The decision to reinforce our work on sexual violence in the last 5 years has come in response to an undeniable need. It is urgent that we fight more systematically and more efficiently against sexual crimes, and adapt our interventions to new contexts.

Victims need solid relays to help them make their voice heard. These relays now exist and you are part of that link! Together, we can provide legal support to victims and advocate more efficiently in their favor. We need you to help justice move forward.

Please donate today

[1] Real names withheld

An op-ed by Sandra Delval

The District Court of Bobigny (France) upheld a guilty verdict against Pascal Simbikangwa for genocide and crimes against humanity. Beyond the victims’ relief, this outcome must serve as an example to European States that still waver when it comes to investing in the fight against impunity.

Pascal Simbikangwa was sentenced on appeal to a 25 years sentence for his participation in the Rwandan genocide of 1994. This trial, based on extraterritorial jurisdiction and held in the presence of the defendant, is the first of its kind in France.

It is also the first case sent to the Criminal Chamber by the Unit on Crimes Against Humanity and War Crimes of the District Court of Paris. The Unit was created in January 2012 with the aim of hastening the handling of cases dealing with international crimes.

Pascal Simbikangwa, a former soldier and employee of the Rwandan Directorate of Military Intelligence in 1994, took refuge in Mayotte where he was arrested for a misdemeanor in 2009. After a four-years investigation, he was sent to the District Court of Paris and tried from February to March 2014.

He was found guilty of actively engaging in the deadly campaigns at Kigali’s roadblocks during the genocide, by providing weapons to the vigilante in his neighborhood and to the Interahamwe militia. He also gave them instructions to slaughter on the spot all Tutsis who approached the roadblocks. Although the defendant appealed the verdict, it was eventually upheld by the Appellate Court.

France sets an example

The case can now proceed to its likely final stage. With the litigation of similar cases, France has lived up to its commitments in the flight against impunity. So far, only cases arising from the Rwandan genocide have reached the trial stage in the judicial process. Although most of the cases dealt with by the Unit on Crimes Against Humanity and War Crimes are linked to these events, the growing number of conflicts could increase the scope of its activities, as corroborated by the cases from diverse geographical locations currently under examination by the Unit.

The Simbikangwa case also demonstrates that extraterritorial jurisdiction[1] does not present insurmountable hurdles. The difficulties arise when the courts ruling on the cases have little to no knowledge of the context of the crimes, given that they were committed in another State. Over fifty witnesses and experts were called to testify at the box on Rwanda’s political and historical context, the personality of the defendant, his professional experience, his links to former President Habyarimana, his role in the media, his relations with the Interahamwe militia and on the acts deemed complicit with crimes against humanity and genocide. These testimonies have supplied the jury with all the necessary information to put M. Simbikangwa’s actions into context.

The end of this case is a victory for the victims who demand that their persecutors who have taken refuge in Europe be brought to justice. Many of them still enjoy total impunity.

Sandra Delval, legal advisor.
@SandraDelvalT

[1] Extraterritorial jurisdiction enabled the French court to rule on crimes committed abroad, by and against foreign nationals, as justified by the extreme gravity of the crimes at hand. These crimes were so heinous, that they are prejudicial to the international community as a whole.

 

Widely condemned by the international community – and rightly so – Burundi’s withdrawal from the International Criminal Court (ICC) could turn out to be a blessing in disguise.

On 25 April 2016, the ICC announced the opening of a preliminary examination on Burundi. Six months later, the country walked out of the Court altogether.

Could this diplomatic drawback prove an opportunity for international justice? By trying to step away from it, Burundi could actually be facing it sooner than expected.

Pamela Capizzi, Legal Advisor and Head of TRIAL International’s Burundi program, explains this point of view in the Revue des Droits de l’Homme.

Read the article (in French)

On 29 November 2016, after almost 12 years of court hearings, the case of Mr. Naït-Liman experienced an important turnaround. Upon the request of the victim, the European Court of Human Rights (ECtHR) decided that the case ought to proceed to the Grand Chamber of the ECtHR, where the judges will have the final say. The ruling could become a significant milestone on torture, enabling countless refugees who cannot seek justice in their countries of origin to do so in a European host country.

 TRIAL International has stood by Mr. Naït-Liman in his quest for justice for more than a decade. The Tunisian national, who has since become a Swiss citizen, was tortured for more than a month by the Tunisian authorities. Unable to obtain justice in Tunisia, Mr. Naït-Liman initiated a lawsuit to get redress in Switzerland against the former Tunisian Minister of Domestic Affairs with the help of TRIAL International. TRIAL International took the case as far as the Supreme Court before proceeding the ECtHR, which also dismissed the motion last June.

“M. Naït-Liman is delighted that is case will be examined by the highest European judicial body. It proves that there was a need for legal clarification”, explains lawyer François Membrez who represented the victim. “It also constitutes a step forward for all the victims of human rights abuse, whose need for protection is greater than ever.”

“It is very uncommon for the Court to deem a case significant enough to be sent to the Grand Chamber”, insisted Philip Grant. “It is an encouraging sign for the case and TRIAL International will do whatever it can so that the Chamber decides in Mr. Naït-Liman’s favor. The hour has finally arrived to deliver justice to him” asserts the Director of TRIAL International.

In April 1992, while living in Italy, Mr. Abdennacer Naït-Liman was arrested and handed over to the Tunisian authorities. For forty days he was arbitrarily detained and subjected to various forms of torture: sleep deprivation, beatings and attached for the entirety of his detention to an iron bar positioned between two tables. Mr. Naït-Liman went through this harrowing experience within the very premises of the Republic of Tunisia’s Ministry of the Interior.

In 1995, Mr. Abdennacer Naït-Liman was granted asylum in Switzerland due to the torture inflicted upon him during the forty days of his detention. He is now the Chairperson of an Association for victims of torture from Tunisia.

In February 2001, Tunisia’s former Minister of the Interior, Mr. Abdallah Kallel, was in Geneva. Making the most of his timely presence, Mr. Naït-Liman filed a criminal complaint against Mr. Kallel for grievous bodily harm. He accused him of ordering the physical and psychological torture that he was subjected on the premises of the Ministry of the Interior. However, the former Minister was able to abscond from Switzerland just before the local judiciary could act.

In July 2004, and with the support of TRIAL International, Mr. Naït-Liman began legal proceedings aimed at securing compensation from Mr. Kallel and Tunisia for the injuries he sustained as a result of the torture. Defended by Mr. François Membrez, TRIAL’s Vice-president, Mr. Naït-Liman filed his claim before the Geneva courts, since returning to his country would expose him to grave risks of death or harm to his physical integrity. The only place where he could assert his rights was in Geneva, where he had been living for many years.

Although validly summoned, the respondents refused to take part in the proceedings. Both the District Court and the Appellate Court, however, ruled that the petition was inadmissible, either because of Mr. Kallel’s immunity for the acts committed within the scope of his duties, or because of an insufficient connection with Geneva.

Mr. Naït-Liman therefore appealed to the Supreme court, wanting them to acknowledge that an “emergency jurisdiction” existed in Geneva, as permitted by Article 3 of the Federal Code in private international law. According to this provision, jurisdiction can be established in Switzerland when “proceedings abroad are impossible or cannot be reasonably required”, thus granting judicial authorities “at the place with which the facts of the case are sufficiently connected” the necessary jurisdiction to act.

On 22 May 2007, the Federal Court rejected the appeal because of an insufficient connection, leaving a question mark on whether the former Minister of the Interior’s immunity could also be invoked.

In November 2007, Mr. Naït-Liman submitted an application to the European Court of Human Rights, asking it to recognize that he suffered a violation of Article 6 paragraph 1 of the European Convention on Human Rights because of the refusal of Swiss courts to examine his claim for compensation due to the injuries he sustained as a result of torture.

On 21 June 2016, by a vote of 4 to 3, the European Court of Human Rights narrowly rejected his application. The Court recognized that Switzerland had the right to limit his access to civil proceedings: finding that Swiss authorities could consider his long-term residence in Switzerland; the granting of refugee status there; the acquisition of Swiss nationality and the fact that the perpetrator was present on Swiss territory as not constituting sufficient links. Thus, Switzerland was justified in not allowing Mr. Naït-Liman to proceed.

On 29 November 2016, a panel of judges accepted the request of Mr. Naït-Liman and TRIAL International for the case to proceed to the the Grand Chamber of the European Court of Human Rights. The hearing can now commence before the 17 judges of the Grand Chamber.

The International Day for the Elimination of Violence against Women, celebrated in 25 November, sheds a light on the scourge of wartime sexual violence. Only a strong justice system can play a dissuasive role and put an end to these atrocities.

Dozens of women raped and burnt alive in South Sudan. Over 1’500 Yazidi women and girls still held prisoner by Daesh. Almost 70 sexual violence accusations in 2015 against UN Blue Helmets, supposed to protect civilian populations.

On the International Day for the Elimination of Violence against Women, the record is harrowing. From Colombia to the DRC, tales of sexual violence are countless – yet only a small proportion of victims ever come forth and denounce these abuse, which hints at the real scale of the phenomenon.

Of course, sexual violence can be perpetrated against men and boys too, but the prevalence of these crimes against women in times of conflicts deserves particular attention.

 

Peace and justice are tightly linked

All too often, sexual violence is perceived as a regrettable but inevitable corollary of armed conflicts. This is wrong: sexual violence, like other crimes, may be curbed if justice plays its dissuasive role. “The almost complete impunity of rapists is one of the main causes why these crimes keep occurring”, says Lucie Canal, Legal Advisor on Sexual Violence at TRIAL. “It also weakens the reconciliation process: justice and durable peace are tightly linked.”

All our efforts should therefore be directed towards building a strong justice system:  laws that punish all forms of sexual violence, water-tight inquiries, prosecutors and judges sensitized to the victims’ trauma, and adequate reparations effectively paid to said victims.

 

Change is underway

Awareness throughout the world has leapt forward over the last few years. For this we pay homage to the courage of victims who refused to wall themselves in shame and silence, and to the relentless activism of human rights defenders.

The recognition of a right to justice for victims of sexual violence has progressively emerged. “The condemnation of Jean-Pierre Bemba at the International Criminal Court in August 2016 for rape as a war crime and a crime against humanity is a recent illustration of this trend. So is the development of international tools like the International Protocol for the Documentation and Investigation of Sexual Violence in Conflict.”

 The fight against sexual violence is underway. Let us pursue our efforts and call for strong international action to guarantee that all victims finally access justice.

A TRIAL International report compiles wartime survivor testimonies on compensation, emphasizing the need for a more inclusive support framework in Bosnia and Herzegovina.

Under international law, victims of international crimes have the right to receive redress for the harm they have suffered. In BiH, the state has no established system of reparations, so victims must pursue compensation in criminal and civil court. Unfortunately, problems such as the lack of free legal aid and of a fully established psychological support system prevent many victims from accessing this right

With over 8 years’ experience in victim representation, TRIAL International in BiH is proud to issue its report Compensating Survivors in Criminal Proceedings: Perspectives from the Field.

The publication seeks to understand compensation from the victims’ perspective, highlighting the benefits of compensation and the hurdles victims face to access them. For 4 months, TRIAL’s staff  conducted interviews with survivors, psychologists, social workers, legal professionals, government officials, academics and NGO representatives.

“Reparations are such a complex and multi-layered topic that only a multidisciplinary approach could capture the breadth of survivors’ experiences”, says author of the publication and TRIAL Fellow, Kyle Delbyck.

 

Survivors’ active role crucial to their closure

Victims interviewed for the report overwhelmingly stated that compensation proceedings, far from matter of money, are a way to retake control of the trauma they have experienced and finally close that chapter of their lives. For some victims, it will be their first and only opportunity to tell their stories before a court and describe their claims in their own words.

Criminal hearings call victims as witnesses, to provide answers to specific questions. They have little time to reflect on their own experiences. Their testimony can be challenged, sometimes harshly, by the Defense during cross-examination. As a result, many victims leave the courtroom hurt and disappointed.

Compensation proceedings, on the other hand, are staged around and for the victim. They are able to give opening and closing statements, present evidence, call witnesses, etc. “The victim gets an opportunity to actively participate in the proceedings and present her requests, creating the sense that she is not only a procedural instrument,” explains Nedzla Sehic, a lawyer representing sexual violence survivors in compensation claim cases.

This active role can be instrumental to closure and help victims regain a sense of control over their own lives. “It is a sign for them that they are no longer in the position of a survivor who just waits”, says Director of NGO Medica Zenica, Sabiha Husic.

 

Using victims’ voices to foster change

TRIAL’s report also analyzes different avenues through which victims can obtain justice, and these mechanisms’ respective limits. In the absence of a comprehensive, state-wide compensation scheme, survivors are left to navigate the judicial system the best they can. Many of them will never access reparations.

By sharing good practices and highlighting loopholes, the report is both an advocacy and a capacity-building tool. “We hope that this report will promote policymaking, so that even the most vulnerable survivors are able to obtain redress”, concludes Selma Korjenic, Head of the BiH program.

 

Read the report
Read more on TRIAL’s successes with victim compensation

In DRC, victims of heinous crimes can now seek justice before civilian courts. These timid but encouraging steps could halt widespread impunity in the country.

In DRC, the fight against impunity for international crimes was initiated in 2002. Since then, their prosecution has fallen exclusively under the jurisdiction of military courts. Despite a few victories, many obstacles obstruct victims in their proceedings and significant shortcomings in the Military Code effectually perpetuate impunity for the most highly ranked officers.

For example, Congolese soldiers can only be tried by officers of an equal or higher rank. Given that generals are almost absent among military lawyers and judges, this principle gives way to impunity at the highest echelons of the armed forces.

Furthermore, military judges suffer direct meddling from the executive branch and the military chain of command. Cases can be prohibited or subjected to the approval of the military pecking order, which is basically tantamount to the dropping of charges.

There is a plethora of examples of impunity among the military: in the Kabungulu case, a zealous judge examining the accountability of politicians was transferred to other investigations without any justification. In another case, a Colonel accused of rape was protected by his hierarchical superiors under the guise that he was involved in crucial military operations.

 

DRC finally in conformity with international standards

Faced with this glaring injustice, international standards prescribe that human rights cases should fall under the jurisdiction of civil courts. DRC finally came into alignment with these standards in 2013, after protracted civil society campaigning. Civil and military courts now share the burden of judging war crimes, crimes against humanity and genocide cases.

In September 2016, the Appellate Court of Lubumbashi (Province of Katanga) used this new law for the first time. In this unprecedented case, it convicted four defendants for genocide.

Following this case, civil judges in South Kivu have also initiated their first investigation. “We were adamant that a civil court ought to handle the case”, explains Daniele Perissi, Head of Trial International’s program in the DRC. “The Appellate Court of Bukavu will certainly be better equipped than a military court to conduct this investigation and promptly organise a trial”.

In this case involving crimes against humanity, TRIAL International assists and represents free of charge* a dozen of clients seeking justice and redress.

 

* The activities of TRIAL International referenced herewith are part of a project implemented in collaboration with the European Union and the United Nations for Development Programme (UNDP) which seek to strengthen the capacity of Congolese civil courts in reining in international crimes.

TRIAL International and six NGOs denounce the ordeal of thousands of relatives of disappeared persons in Mexico in their attempt to obtain assistance and redress.

On paper, Mexico is equipped with both the legislative tools and the institutional venues to guarantee social assistance and reparation to relatives of disappeared persons. But behind this façade, the bleak reality is that thousands of families are left to deal alone with the emotional upheaval of enforced disappearance, exacerbated by material deprivation.

When men are forcibly disappeared, women and children often suffer too, because the head the household and main breadwinner is no longer around. The disappearance of a single individual therefore results in the disruption of entire families. Guarantees of employment or property are crucial not only to cover the expenses of the search for their loved ones, but also to ensure their sheer survival.

 

An inhumane bureaucratic maze

Under international law, States have the obligation to provide adequate reparation and social assistance to the families of disappeared persons.

But in Mexico, they often find themselves trapped in a bureaucratic maze. The institutions supposed to help them actually hinder their attempts: officers in charge frequently prove unwilling or unable to adequately attend victims and their families.

Worse still, episodes of re-victimisation may occur, effectively discouraging relatives to uphold their rights. A group of wives of disappeared persons was told that they should find a job instead of “begging for support”, since their husbands would not return anyway.

Similarly, many relatives applying for medical and psychological assistance have been turned down as they were unable to demonstrate the trauma they had been subjected to. Other cases of mistreatments include false information or the loss of files.

Adding insult to injury, relatives of disappeared persons are often requested to anticipate expenses to cover their basic needs, such as medical support. As a result, some families are forced to apply for loans or mortgages. Now the Mexican authority in charge of social support is failing to reimburse these expenses, furthering their humiliation, economic hardship and marginalisation.

 

Foreigners have even fewer rights

The situation is even worse when the relatives of the disappeared person reside outside of Mexico and this is particularly grave knowing that thousands of migrants – mainly from Central America – disappeared in Mexico in their attempt to reach the USA or Canada. Although the law entitles also foreign relatives of disappeared persons to social support and reparation, practical obstacles make it almost impossible to fulfil these rights.

On the one hand, appointing a representative in Mexico can prove very hard for relatives living abroad. On the other, relatives themselves are unable to travel there for lack of a visa and economic means to cover their travel.

The few that manage to formally register as “victims” – and are thus entitled to social support – may in practice be unable to access said support. Ms. E.D. lived in El Salvador when her son disappeared in Mexico in 2011. It took her 4 years to be formally recognised as a victim in Mexico. She was requested to come to Mexico to obtain medical and psychological support, only to be told upon arrival that she did not fit all the requirements. She was sent back to El Salvador empty-handed, with still no answer as to her son’s fate. Countless mothers, fathers and siblings face the same fate every day.

In November 2016, TRIAL International and six Mexican NGOs denounced these inhumane situations to the United Nations Working Group on Enforced or Involuntary Disappearances (WGEID). The report illustrates with examples the obstacles faced by thousands of relatives of disappeared persons.

The WGEID is now expected to seek explanations from Mexico and transmit recommendations to the State.

 

Read the full report (in Spanish)

Read the executive summary (in English)

An op-ed by Gabriella Citroni

TRIAL International and six NGOs denounce the ordeal of thousands of relatives of disappeared persons in Mexico in their attempt to obtain assistance and redress.

On paper, Mexico is equipped with both the legislative tools and the institutional venues to guarantee social assistance and reparation to relatives of disappeared persons. But behind this façade, the bleak reality is that thousands of families are left to deal alone with the emotional upheaval of enforced disappearance, exacerbated by material deprivation.

When men are forcibly disappeared, women and children often suffer too, because the head the household and main breadwinner is no longer around. The disappearance of a single individual therefore results in the disruption of entire families. Guarantees of employment or property are crucial not only to cover the expenses of the search for their loved ones, but also to ensure their sheer survival.

 

An inhumane bureaucratic maze

Under international law, States have the obligation to provide adequate reparation and social assistance to the families of disappeared persons.

But in Mexico, they often find themselves trapped in a bureaucratic maze. The institutions supposed to help them actually hinder their attempts: officers in charge frequently prove unwilling or unable to adequately attend victims and their families.

Worse still, episodes of re-victimisation may occur, effectively discouraging relatives to uphold their rights. A group of wives of disappeared persons was told that they should find a job instead of “begging for support”, since their husbands would not return anyway.

Similarly, many relatives applying for medical and psychological assistance have been turned down as they were unable to demonstrate the trauma they had been subjected to. Other cases of mistreatments include false information or the loss of files.

Adding insult to injury, relatives of disappeared persons are often requested to anticipate expenses to cover their basic needs, such as medical support. As a result, some families are forced to apply for loans or mortgages. Now the Mexican authority in charge of social support is failing to reimburse these expenses, furthering their humiliation, economic hardship and marginalisation.

 

Foreigners have even fewer rights

The situation is even worse when the relatives of the disappeared person reside outside of Mexico and this is particularly grave knowing that thousands of migrants – mainly from Central America – disappeared in Mexico in their attempt to reach the USA or Canada. Although the law entitles also foreign relatives of disappeared persons to social support and reparation, practical obstacles make it almost impossible to fulfil these rights.

On the one hand, appointing a representative in Mexico can prove very hard for relatives living abroad. On the other, relatives themselves are unable to travel there for lack of a visa and economic means to cover their travel.

The few that manage to formally register as “victims” – and are thus entitled to social support – may in practice be unable to access said support. Ms. E.D. lived in El Salvador when her son disappeared in Mexico in 2011. It took her 4 years to be formally recognised as a victim in Mexico. She was requested to come to Mexico to obtain medical and psychological support, only to be told upon arrival that she did not fit all the requirements. She was sent back to El Salvador empty-handed, with still no answer as to her son’s fate. Countless mothers, fathers and siblings face the same fate every day.

In November 2016, TRIAL International and six Mexican NGOs denounced these inhumane situations to the United Nations Working Group on Enforced or Involuntary Disappearances (WGEID). The report illustrates with examples the obstacles faced by thousands of relatives of disappeared persons.

The WGEID is now expected to seek explanations from Mexico and transmit recommendations to the State.

 

Read the full report (in Spanish)
Read the executive summary (in English)

 

Gabriella Citroni, Senior Legal Advisor

 

Mr. Nepali was a journalist at a Maoist daily newspaper during the civil war that opposed Nepali security forces with the Maoist guerilla. A political activist, Mr. Nepali was also a member of the Communist Party of Nepal-Maoist (CPN-M). He lived in Kathmandu with his wife. Being a member of the opposition, he had been arrested and interrogated on several occasions – as well as his wife – but was never seriously threatened.

On 21 May 1999, his life took a dramatic turn when six or seven policemen turned up and  asked him to follow them for questioning. Mr. Nepali followed them without resistance and was taken away in a mini-van to an unknown destination. This time, he did not come back.

His wife, who had witnessed his arrest, turned every stone to find where he had been taken. She went repeatedly to the local police station, but was always turned down. Finally, weeks after her husband’s arrest, she received an anonymous call informing her that he was being held in police headquarters in Naxal, Kathmandu.

The following day, Mrs. Basnet went there and asked to see her husband. The police refused her request, but took the clean clothes she had brought for him. This gave her renewed courage, as it meant that he was indeed held there and alive.

After leaving the police headquarters, Mrs. Basnet climbed to a nearby hillock and from there, she was able to get a glimpse of Mr. Nepali inside the compound. He was being escorted to the toilet by a policeman and, though handcuffed, seemed in generally good condition. Mrs. Basnet shouted out to try and get her husband’s attention, but she was too far away and he did not hear.

That was the last time she, or anyone else, saw Mr. Nepali.

 

Procedure

In the following year, the Supreme Court twice quashed a habeas corpus writ (respectively on 12 July 1999 and 5 July 2000). In both decisions, it argued since the Police denied detaining him, it could not be ordered to release him.

Mrs. Basnet’s fight was not limited to legal action. She and other family members of disappeared individuals held a press conference and issued an appeal requesting the general public and government authorities to come forward if they had any information regarding Mr. Nepali’s whereabouts. She also submitted a written appeal to the Parliament and co-founded the Families of Victims of State Disappearance Association (FVSDA).

The cause of Mrs. Basnet was even supported by Amnesty International in July 1999, who issued two urgent action appeals on 13 August 1999 and February 2000. The government of Nepal remained unwavered in its inertia.

In May 2012, TRIAL International took up the case to the United Nations Human Rights Committee.

Finally, on 1 November 2016, the HRC issued its response, finding that the rights of Mrs Basnet had indeed been violated. It ordered the government of Nepal to:

  • Inquire over the enforced disappearance of Mr. Nepali
  • If Mr. Nepali is dead, to locate his body and give his remains to his widow
  • Prosecute and punish the culprits
  • Ensure that reparations and psychological rehabilitation is provided to Mrs. Basnet

The Committee also urged the State to prevent similar cases, by ensuring that all enforced disappearance cases are investigated and that national legislation allows for the prosecution and punishment of perpetrators.

 

The fight is not over

The next challenge for Mrs. Basnet – in which TRIAL will assist her – is to transform this decision into real change. Nepal has an unfortunate record of ignoring HRC recommendations, thereby further violating victims’ rights.

Join TRIAL International’s Real Rights Now campaign to call on Nepali authorities to act today!

Visit the campaign’s website
Follow the hashtag #realrightsnow
Read another story of enforced disappearance in Nepal

 

An op-ed by Philip Grant

South Africa’s withdrawal from the International Criminal Court (ICC), followed closely by Gambia and Burundi, has made the headlines in the recent days. To avoid any more withdrawals, State members must reaffirm their support to international justice.

On 27 October 2016, Burundi has officially withdrawn its membership to the ICC. A few days before, South Africa – far less isolated than Burundi on the international stage – had set the ball running, followed by Gambia.

Yet all three States had ratified the Rome Treaty promptly not so long ago, standing against impunity with a courage that many Western countries lacked. African governments have supported the project of an International Criminal Court before it even saw the day and have actively participated to its foundation.

How to explain the sudden U-turn of Burundi, Gambia and South Africa?

The answer is that a strong-willed international justice is disruptive. These States perhaps thought that their own creation would not turn against them, that it would be confined to trying their opponents. By opening a preliminary examination on Burundi last April, the ICC showed that it would not be the case.

The Court had already acted in a similar fashion when it indicted six high-ranking Kenyan officials, some of whom are still in power today. Kenya has counted ever since among the ICC’s most vocal critics. The same happened in Ivory Coast, when the Prosecutor looked into the crimes committed by the current President’s party. How many countries have renewed their unbending support to the Court after it incriminated its rulers – and not just its political opponents? None.

 

Strong and credible justice

And yet an international justice that also targets the powerful is a strong and credible one. It is the sign that the ICC – a comparatively young institution – is spreading its wings and gaining confidence.

We need to go beyond the false and sterile debate of whether the Court is biased against African countries. The ICC is more diverse than that: Colombia, Georgia and Palestine are also under its eye. A European power is the object of preliminary examination: Great Britain, for the crimes committed by its troops in Iraq. And growing rumors have it that Afghanistan could also be concerned, notably for the acts committed by US troops.

Other developments are also highly promising. The Prosecutor has recently indicated that she would like to target economic crimes – and especially environmental crimes – more actively. The Court should also soon be enabled to prosecute the crime of aggression, which means the likes of George W. Bush and Tony Blair would stand within its reach in the future.

These examples show that justice is moving forward. But the ICC’s clout will only ever depend on the cooperation of its State parties and on the support of civil society. We must fight – and so must our governments – to perpetuate over 20 years of progress on international justice.

 

Philip Grant, TRIAL International’s Director

@PhilipGrant40

 

Tej Bahadur Bhandari was forcibly disappeared in 2001. His son, Ram Bhandari, has never given up on justice and is now a prominent human rights defender in Nepal. This is his story.

“My father was forcibly disappeared in 2001, when I was 23 years old. I was at university when I received the phone call from my mother: she was panicked, she said my father had been taken away by the police. I was immediately filled with dread: some of my university friends had been imprisoned, disappeared or tortured by the authorities. I knew what they were capable of.

I rushed back home the next day to be with my mother. Together, we went to the police station. They denied they had taken my father, but what we heard from witnesses was very different: my father was beaten unconscious in broad daylight, in the middle of the street. He was then blindfolded, handtied and taken away by the police. He has never been seen since.”

 

A shattered family

“Because I kept going back to the authorities, I started receiving threats. I was even imprisoned for a few days. My mother was worried for our safety, so we decided to change city. We left our family business behind us, and all our relatives. In the new city, we did not know anyone. My mother could not work, she was sick with worry and she had to be hospitalized.

Family bonds are very important in Nepal. The place of a woman in society depends on her husband. He is also the breadwinner, when she stays at home and looks after the children. So when my father was taken away, my mother was unable to fend for herself, like so many other wives of disappeared men.

These women cannot even receive widowhood funds, because they cannot produce a body or a date of death. They are in an ambiguous position that their community do not understand, so they are often rejected and stigmatized. The children suffer too: for lack of funds they cannot be schooled or nursed properly. When a man is forcibly disappeared, his whole family faces a lifetime of social isolation and psychological suffering.”

 

Seeking justice above State level

“My mother and I were determined to know what had happened to my father. We went to the police, to court, to politicians, we wrote letters, we gathered evidence, all for naught. I thought we had reached our limits when I heard of TRIAL International for the first time. They told me that proceedings did not stop at the domestic level, that we could take the case to the United Nations. We were so hopeful when we learnt that we could still fight for justice, even if Nepali authorities were unwilling to collaborate!

In 2014, the United Nations Human Rights Committee took our side and requested Nepal to serve justice. It was great to finally receive acknowledgment that we have suffered, that what had happened was unlawful and wrong.

Unfortunately, since the UN’s decision, Nepali authorities have done nothing. We still do not know why my father was taken away, what happened to him, and whether he is still alive.”

 

From individual grief to collective action

“I have now dedicated my life to defending victims of enforced disappearances. With the National Network of Families of the Disappeared, we inform people of their rights. We explain the proceedings, we help them gather compelling evidence, and we let them know that they can go before the United Nations if they are dissatisfied with Nepali justice.

Too many of these families have no idea of their rights. They are often from the countryside and live simple lives. A lot of them are scared or think that claiming justice will make no difference. They do not always report enforced disappearances, which means that a lot of these crimes still go unrecorded and unnoticed. We are trying to change that. We encourage people to come forward, because with our collective action we can change things and finally obtain justice.

We also raise awareness on what enforced disappearance is. We explain the psychological torture victims go through, and hopefully in the future there will be less social stigma attached to families of the disappeared. I never want to see another woman shunned like my mother was.”

 

Read more about Tej Bahadur Bhandari’s case

Visit our campaign website for real rights in Nepal

 

Thus far, victims in Bosnia and Herzegovina (BiH) received no State legal aid to seek compensation in criminal proceedings. This violation of the country’s obligation has now come to an end.

In 2015, for the first time in the history of BiH, TRIAL International helped wartime victims obtain compensation in criminal trials. Since these seminal verdicts, the practice has been rapidly spreading.

Recognizing that the victims’ right to compensation was impossible without legal aid, officials from prosecutor’s offices and courts have since referring victims to non-governmental organizations for assistance. The organization’s means, however, were largely insufficient to cover the needs.

 

Upholding the State’s obligation

This is why TRIAL International has campaigned over the last months to establish a free legal aid regime for victims. On 27 October, the Parliamentary Assembly of BiH has finally adopted amendments in that sense.

Now the State’s Ministry of Justice must implement the new legal aid laws and ensure that victims can access the remedies they are due. The law is limited to the State level, which means that the changes affect the Prosecutor’s office of BiH and the Court of BiH.

Only victims meeting other conditions (poor financial situations, or are victims of gender-based violence) will be entitled to free legal aid.

Stella was thirteen years old when she was raped by a judge. She is now defended by a Congolese lawyer trained by TRIAL.

Born to a family of five siblings, Stella (real name withheld) lived with her parents. Although she attended school in suburbs of Bukavu, financial difficulties forced her family to send her to her aunt’s home to earn some money before resuming her studies.

At her aunt’s village, Stella met Judge E.K. who lived next door. He invited her over various times to win her trust and, aware of her predicament, he gave her money.

 

Poisoned chalice

Gradually, the friendly tone of Judge E.K. changed as he began to allude to marriage. Despite Stella rejecting his advances and knowing that she was a minor, he became more persistent. He claimed to be a lonely man who needed a woman in his life. He consistently repeated that she would not lack so long as she became his wife.

Intimidated and caught off guard, the young girl yielded to the judge’s advances and agreed to engage in a sexual relationship.

According to Congolese law, sexual intercourse with a minor is considered statutory rape, irrespective of the minor’s acquiescence or refusal.

A few days later, Judge E.K. left the village without looking back. Shortly after his departure, Stella was faced with the grim reality that she was expecting.

Upon returning to Bukavu, she hid her condition to her family for a long as she could. When she was five months pregnant, Stella finally confided in her mother, who with the support of a pastor, decided to litigate the matter in court.

 

Legal procedure

TRIAL International has supported both mother and daughter throughout all the stages of the lawsuit. Thanks to the NGO, their testimony was heard by a prosecutor. They are also backed by a local lawyer who was trained by TRIAL International.

These efforts resulted in Judge E.K. being prosecuted before an Appeals Court of Bukavu, where his trial began on 13 October 2016.

The life of Stella has taken a turn for the worse since her fateful encounter with E.K. As is the case of most victims of rape, she was rejected by her community and can only rely on her family. Her baby was born prematurely and requires constant medical care, further weighing down on her family’s meagre resources. Psychologically, Stella has become a shadow of her former self: she suffers from depression and cannot seem to get ahead. Her studies have come to a standstill.

 

To date, 120 of the 200 biggest Swiss corporations have no policy regarding human rights. Mandatory measures are necessary to change the tide.

The Responsible Business Initiative demands that all Swiss corporations take human rights and environmental responsibilities. A positive step that would benefit everyone.

 

Corporate responsibility is beneficial…

For numerous Swiss businesses, respecting human rights and the environment is self-evident. As long as this belief is not shared by all businesses, rules are necessary. Convinced that the Swiss economy would benefit from it, many personalities of the economic milieu support the Responsible Business Initiative.

 

… high on the agenda…

There is an international trend to reinforce corporate responsibility. In France, a bill supported by the government and the National Assembly plans to force large French companies to respect human rights and the environment. In the United Kingdom, businesses are required to exclude forced and child labor from their production chains. The European Parliament as well as eight EU-member parliaments demand that the EU introduces mandatory due diligence to all European multinationals.

 

… and achievable

Risk management is a common practice in the business world. Human rights and environmental risks should be integrated to these strategies. Such investment could save lives and prove beneficial for the corporation.

Several multinationals have already taken steps towards this goal, applying due diligence on a voluntary basis. They prove that the Responsible Business Initiative is achievable.

Read the full brochure (in French)
Read more on TRIAL’s fight against corporate crime

 

The Swiss Responsible Business Initiative will be presented to the Swiss authorities today. The 80 civil society organizations supporting the initiative share one common goal: Swiss quality must incorporate the protection of human rights and the environment.

The 120’000 valid signatures gathered for the Swiss Responsible Business Initiative will be handed over to the Swiss government today. The constitutional amendment proposed by the initiative is based on the UN Guiding Principles on Business and Human Rights, unanimously adopted by the UN Human Rights Council in 2011. The initiative compels Swiss-based multinational companies to undertake human rights and environmental due diligence in all their business activities abroad.

In practice, companies will have to identify, prevent, mitigate and account for how they address their adverse human rights and environmental impacts and those of the entities under their control. If a corporation does not fulfill its mandatory due diligence, it may be held to account for abuses committed by a subsidiary abroad.

Switzerland’s reputation is a major asset of its economy. Swiss quality stands for high standards, meticulousness and fair business relations. Companies benefitting from this reputation abroad must comply with international norms. In reality however, a number of Swiss-based companies still do not take into account the human rights and environmental impacts of their activities, nor do they take the appropriate steps to avoid or eliminate abuses. By bridging this current loophole, the Swiss Responsible Business Initiative seeks to ensure that the protection of human rights and the environment becomes an integral part of Swiss quality.

This initiative is part of a wider international trend towards binding rules for multinational companies. In recent months, the Council of Europe and the European Parliament, as well as eight national Parliaments of EU Member States, have spoken in favor of mandatory human rights due diligence.

The Swiss Responsible Business Initiative is supported by a broad coalition of 80 civil society organizations, which will immediately begin to prepare for the referendum’s campaign.

According to a recent survey, 89% of the population wants Swiss-based companies to be compelled to respect human rights and the environment abroad. Furthermore, 92% think that corporations should ensure that companies under their control do the same. Despite the lack of political action in this regard, these numbers indicate a wide public concern for corporate responsibility.

Read more about TRIAL International’s actions against corporate crime

Geneva, 6 October 2016 – Today, one of TRIAL International’s representatives has been asked by the Burundian authorities to leave the country, following the revocation of her visa.

Ms Capizzi joined TRIAL in September 2014. She is a Legal Advisor and Head of TRIAL International’s Burundi program. Prior to that, she did previous assignments for the International Committee of the Red Cross, the European Court for Human Rights and the Italian Ministry of Foreign Affairs. Pamela Capizzi was on a professional mission in Bujumbura since 2 October when her visa was revoked:

“Burundian authorities granted me with a visa, knowing that I was going to Burundi to deliver a legal training. The reasons to revoke it while I was still in the country were not communicated to me. I could nonetheless leave the country without any problem”, said Pamela Capizzi.

TRIAL International’s mission in Burundi is to contribute to durably improve the judiciary system and to facilitate access to justice to victims of international crimes.

“Pamela Capizzi is a tremendously committed staff member with an irreproachable work ethic. She delivered a training with the corresponding rigor and professionalism. She has our full support and endorsement ”, said Philip Grant, TRIAL International’s Director.

(updated on Friday, October 7 at 9am UTC+2)

#Inimulti

Human rights violations committed by multinationals in Switzerland regularly make the headlines: inhumane working conditions, child labor and pollution from mines. An initiative seeks to put an end to these inacceptable practices.

 The scandals that have come to the fore in recent years show that voluntary measures no longer suffice. Switzerland, where multinationals have established their headquarters, bears some responsibility in setting a benchmark.

TRIAL International has fought for years against the impunity of corporations in the area of human rights. It has denounced the abuses of Argor-Heraeus and Caterpillar.

 

Voluntary measures are not enough

To increase accountability for multinationals, an initiative driven by a coalition of NGOs, including TRIAL, seeks to introduce a bill requiring due diligence on their part.

The bill will require companies to check if their activities abroad lead to human rights violations or harm the environment and to document all remedial actions they undertake.

Corporations in breach of their duties of due diligence could be held accountable for their acts of omission or commission in a Swiss court. The ensuing financial consequences and damages to their corporate image could sway most corporations to take appropriate measures and take responsibility for all of their activities.