Justiceinfo https://www.justiceinfo.net Sun, 25 Oct 2020 10:03:26 +0100 Joomla! - Open Source Content Management en-gb ICC: Last chance to de-quarantine justice for Mali https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/opinion/45752-icc-last-chance-to-de-quarantine-justice-for-mali.html https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/opinion/45752-icc-last-chance-to-de-quarantine-justice-for-mali.html Montage based on the blurred broadcast of a witness in Al Hassan's trial before the ICC © ICC-CPI / Thijs Bouwknegt / JusticeInfo.net

In the trial of Al Hassan, a former member of the Islamic police in Mali, evidence before the International Criminal Court has been vastly hidden from the public. Even Western expert witnesses are now granted anonymity and closed sessions. Scholar Thijs Bouwknegt warns of the consequences of this new step in the deterioration of the publicity of international criminal trials. Who else than affected communities is international justice primarily for? he asks.

“There is risk of identifying the expert – private session please,” sighed presiding judge Antoine Kesia-Mbe Mindua on 15 October. It was the end of the first block of expert testimony in the trial of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud before the International Criminal Court (ICC). Al Hassan is on trial for 7-year-old atrocity crimes in Timbuktu, Mali, nearly six thousand kilometres away from the seat of the ICC in The Hague, The Netherlands.

Zapping between the channels of the ICC courtroom, video-links, private and public sessions, judges have now heard the first fifteen prosecution witnesses. It is laudable that evidentiary examinations take place at all against the uncertain odds of the COVID-19 pandemic. But their substance and significance are obscure. The extraordinary anonymity of experts and confidentiality of their reports render the trial inaccessible, while the sole reliance on European journalists and experts to bring evidence distances the case even further from the Sahel, where the crimes occurred.

The trial of Al Hassan signals a new step in the deteriorating public visibility of international criminal trials. Twice quarantined, from outside and from within, this hermetically sealed justice further disables the impact and meaning the Court could actually have.

Flipping between test screens

Mindua’s protection order has been a repetitive refrain in the trial, often disrupting the Court’s judicial ritual. The Court’s web stream went black for several minutes. Again. Before it suddenly popped back up, showing Al Hassan’s lawyer finishing to put some puzzling forensic proposition: “Would you agree, Mr. Witness?” Ninety seconds later, midway through the expert witness' answer, it flipped back to test screen: “Closed or Private Session.”

Clearly, the Congolese judge was not a fan of this. The day before, prior to the Prosecution’s examination of another shielded expert (“P-0653”), he had urged again the parties to “respect as much as possible the publicity of the proceedings.” But to no avail. What the audience finally got to see from the last witness (“P-0655”) through a pixelated image was a white French-speaking man, whose expertise is to isolate and recognise voices on videos. We were, however, not allowed to see the videos he had analysed, nor to hear Al Hassan’s voice on the recording. Neither were we told what stringent security reasons legitimised this scholar’s cover and the confidentiality of his report.

What or to whom would it be risky to have an open session?

What the ICC preaches and what it actually practices

Six weeks into the Prosecution’s presentation of evidence, the Al Hassan trial is as invisible in Mali as it is to patient ICC observers. Despite handling two Twitter accounts (English and French) serving over 460.000 followers, the Court’s outreach department has cared to tweet about Al Hassan’s case only three times. For a while before the trial’s start on 14 July the Defence team was a solitary online source of information. The Trial Chamber did raise concerns with the Registry over the dearth in exposure, but there were no palpable improvements made towards updating the public about who testified about what, when, from where and why. No one bothered to explain in everyday language the relevance of certain testimony, or to announce who was going to testify. It did not help that the first prosecution witness bluntly told the Trial Chamber that he was “surprised” he had to testify.

What the trial reveals is a world’s difference between what the ICC preaches and promises, and what it actually practices and provides. During opening statements in July, lead prosecutor Gilles Dutertre stressed Timbuktians’ “thirst for justice” and that they “seek to drink the warm and soothing milk of truth”. He and his team narrated a compelling, clear and comprehensible case against a hands-on culprit. Yet today Malians are left out to dry in the desert. The Office of the Prosecutor is missing out on a major opportunity to show affected communities they have a winnable and robust case on their hands. The trial has so far fallen short on delivering beyond what was already generally known.

Al Hassan, “the acting and thinking embodiment of the Islamic police”

The crime scene in the Al Hassan case is Timbuktu and its periphery, when the ancient city was subdued by Ansar Dine, a local franchise of Al-Qaida in the Islamic Maghreb (AQIM). In the group’s short-lived mini-caliphate (April 2012-January 2013), residents were forbidden to drink alcohol, smoke cigarettes, listen to Mali’s mesmerising blues. People were dictated what to wear, how to behave and in what manner to revere Allah. Women were especially dehumanised, relegated to rightless residents. Ansar Dine’s judges ordered girls to obey and satisfy ‘their’ designated men during arranged one-night marriages. In its deviant imagination of Islamist transitional justice, Ansar Dine’s iconoclastic men crushed mausoleums, smashed mosques and scorched books. Griots, librarians and musicians were persecuted. Ansar Dine’s enforcers of Sharia laws were the morality brigade (the Hisbah) and the Islamic Police. Patrolling private and public spaces, fanatic young turbaned men meted out unforgiving penances: public humiliation, fines, detention, amputation, flogging, stoning. And their “zealous commissioner”, alleges the Prosecution, was Al Hassan.

 At the heart of the case, said Chief Prosecutor Fatou Bensouda during her one-day trial attendance on 14 July, is “a veritable persecution on religious and gender grounds” at the hands of Ansar Dine and AQIM. Al Hassan, who she contended was “the acting and thinking embodiment of the Islamic police”, was “a willing perpetrator and member of this organisation from the very outset.” Through his appearance in international media in 2013, Al Hassan was indeed an identifiable and prosecutable target for investigators. Already jailed in a Malian prison, he was also a convenient suspect and defendant. However, in the pool of potential Ansar Dine or AQIM suspects – including Ansar Dine’s headman Iyad Ag Ghaly – Al Hassan is a mid-size “fish”. An insignificant veterinary pharmacist in his mid-thirties, he turned into an extremist under extraordinary circumstances. His lawyers now portray him as a torture victim – unfit to stand trial, and suffering from post-traumatic stress disorder.

Self-incriminating evidence

Hiding his face under his turban and behind glasses and a protective mask, the accused silently observes how foreigners talk about his home country. Looking somewhat unemotional, he hears how the thirteen counts of crimes against humanity and war crimes levelled against him may actually represent the totality of Ansar Dine’s ten-month reign: widespread and systematic torture, forced marriages, sexual slavery, rape, persecution, cruel treatments, outrages upon personal dignity, passing sentences without judgement, attacking protected monuments, and several other inhumane acts. Without revealing details, Bensouda said “the suffering endured by Timbuktu and its inhabitants is emblematic of what happened.” It took the Trial Chamber 43 minutes to read out the charges – in closed session.

Despite the heavily redacted charges, we did get a glimpse of the evidence that puts Al Hassan at the centre of the crime scene. While detained by Mali’s General Directorate of State Security, Al Hassan had been extensively quizzed by ICC investigators. One of the things he admitted was that it was his private mobile phone number on a plaque that hung on the Islamic Police’s headquarters’ façade. Then there are videos. On one, he explains the Islamic police’s tasks and work. On another, he strolls the streets of Timbuktu, wearing a yellow turban and a blue smock bearing the words “Police Islamique”. Most explicit is a short film of Al Hassan whipping two men on their backs, bottoms and legs. In addition to this material there is a thick binder of documents, many of which were photographed or smuggled out of Mali by international journalists (including by the first two witnesses). They include incriminating police reports with Al Hassan’s signature on them.

The Prosecution also has a crucial insider in its custody: Ahmed Al Faqi Al Mahdi. This fellow Ansar Dine associate entered into an agreement with the ICC Prosecutor in February 2016, admitting guilt for destroying and damaging ancient mausoleums and a mosque in Timbuktu. He is now serving a nine-year prison sentence in the United Kingdom, and he is expected to testify against his alleged former partner in crime. Yet, it remains unclear when the ‘star witness’ will take the stand.

Blurred screen for an anonymous journalist testifying before the ICC
Blurred screen for an anonymous journalist testifying before the ICC. © ICC-CPI / Thijs Bouwknegt

Faceless justice

Much of the trial’s secrecy is officially explained by Mali’s uncertain situation. In early July, the ICC’s Registry reported “armed attacks and abductions” with “extreme threat levels of terrorism and criminality” and “civil unrest.” In August there was another coup d’état in Bamako, Mali’s capital. Meanwhile, Ansar Dine and AQIM purportedly pose dangers to witnesses and victims. One expects a court dealing with atrocities to get caught up in dangerous situations and be worried about safety. But this has now driven the Court into becoming a distant, isolated side-show to real-time theatres of enduring violence – the type the ICC was set up to deter in the first place.

There is no doubt the endless violence in Mali has ruthlessly affected the Court’s investigations and the sequence in which the Prosecution’s evidence could be brought before the Trial Chamber. Most notable is the absence of Malian witnesses. So far, there has not been a coherent trial narrative, with victims’ voices and insiders who could link crimes to the alleged perpetrator in the dock. Instead, all witnesses have been experts and journalists from the global north, mostly from France, Mali’s former coloniser. And whereas one could understand that Timbuktians would request some protective measures, it is perplexing and unprecedented that the majority of these Europeans witnesses have been provided aliases, have their faces and voices distorted and their evidence redacted. After nearly two months of proceedings, the transcripts of only three witnesses have been published; a fourth one was later deleted from the ICC website.

Expert testimony used to be unquestionably public before international tribunals; expert reports were published too. Where has this gone?

Words of foreign journalists

Among the handful unprotected witnesses was Dutch journalist Harald Doornbos. Flown in from the United Arabic Emirates and undergoing four Covid-19 tests, he was the first to take the stand in The Hague. But he had not much to tell, other than that he had found some documents in a bank and in a hotel. Former British journalist David Blair (who now is UK Prime Minister Boris Johnson’s speechwriter), the second witness, had also reported from Mali. In 2013, he broke a story in the Daily Telegraph about a secret document he and photographer Will Wintercross had found and taken from Timbuktu to London. It concerned the record of the 33rd meeting of AQIM’s leadership, highlighting “the names of the leaders”, describing “their plans” as to what “they intended to do once they had captured northern Mali.” But the Prosecution did not press on the contents of the document at all. Rather it was interested in showing judges how Blair gave it to ICC investigators through a clear chain of custody.

Three experts who also worked or previously testified for the Prosecution appeared publicly. Xavier Laroche, who works with the UN’s Investigative Team to Promote Accountability for Crimes Committed by Da'esh/ISIL (UNITAD), analysed and wrote a report on the China-made Kalashnikovs used by Ansar Dine’s policemen. Lars Bromley, from the United Nations Institute for Training and Research, briefly testified about satellite imagery of Timbuktu, highlighting places were building were altered or damaged. Francesco Bandarin, UNESCO’s former Assistant Director-General for Culture, speculated on the impact the destruction of Timbuktu’s historical heritage had on Timbuktians but referred the judges to the testimony he had already given in the Al Mahdi trial.

Another journalist may have had more interesting things to say, since she had interviewed Al Hassan several times during Timbuktu’s occupation. Testifying in English, she however preferred to be referred to as “P-0623” and be mostly examined in private session. Speaking in a clear Irish accent was the seventh witness, whose alias the chamber omitted to reveal. He is another former journalist who has joined the ICC Prosecution as an associate investigator in 2014, becoming the Office’s geo-location expert. Questioned by his colleagues, he was confident about his report on protected sites in Timbuktu.

Who is the trial for?

Overall, expert testimony was more technical than substantial. Both parties avoided questions that might throw them into private session, turning the live sessions into a superficial experience. This modus operandi has made it even more difficult to basically grasp, let alone get under the skin of, any of the evidence given by the anonymous experts, including about Mali’s mausoleums, Ansar Dine and AQIM’s documents and digital data, as well as Al Hassan’s handwriting, signature, facial recognition and voice recognition. Apart from a protected forensic police inspector (“P-0057”) who had been seconded to the Prosecution by the French government (which is fighting Jihadists in Mali and the region), it is a largely unsolved mystery why these experts requested (or were offered) and were granted protective measures. Even the most substantive, least boring witness (“P-0152”), who sharply educated the ICC judges about the history of Mali’s conflict and its most important players, chose some protective measures. Testifying with his name withheld, the European political scientist did explain that he was concerned with the security of his Malian colleagues if it would be known they are closely working with an international researcher who gave evidence in this case.

It is hard to assess whether concerns over non-Malian expert witnesses’ exposure in Mali are well-founded. But it is unlikely that the Office of the Prosecutor will move from its chosen path of secrecy. In comprehensively censored filings, it has proposed another ten experts on topics that are redacted. Its reasons may sometimes be understandable, particularly when it comes to witnesses on the ground. But because of the redactions it is not known if this even applies to the next round of expert testimony. The impression left is that the ICC has already forgotten about its claimed audience: victims.

It begs the question: who else than affected communities is international justice primarily for?

The problem of moving further away from public trials and lacking engagement with society beyond the “high-level” and academic bubbles is systemic at international tribunals. The Al Hassan trial rings an alarm on whether this is how future trials will look – irreversibly out of reach.

The way to go

It may not be too late to turn the tide. There is quite simply a world to win for the ICC as a whole, if only it changes the way in which it presents itself and starts providing meaning to its actual audiences, like the inhabitants of Timbuktu. In his book, “Justice as a Message”, international law professor Carsten Stahn, saliently portrays how such an ideal could look. “Trials”, he writes, “entail a whole range of messages that extend beyond punishment. They ‘speak’ to the citizens as members of the normative community. They serve to reinforce belief in the validity of norms, articulate the public understanding of the acts of the perpetrator, and to engage the offender, the victim, and society in discourse over wrongdoing. The judgement is essentially a reasoned public speech act.” In order for that to materialise and work in Mali, the Al Hassan trial must be de-quarantined. As the Trial Chamber prepares for next week’s apparently crucial witness – “P-0065”, one of the longest-awaited testimony – there is no reason why it should not step up to spark such a metamorphosis.

Thijs BouwknegtTHIJS BOUWKNEGT

Thijs Bouwknegt is a historian and former journalist. He is a Researcher at the NIOD Institute for War, Holocaust and Genocide Studies in Amsterdam, The Netherlands, and Assistant Professor at the universities of Amsterdam and Leiden. His research focuses on the history of transitional justice, particularly in Africa. Since 2006, he attended and covered all ICC (pre-) trials in The Hague.

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jean-rene.berrenger@hirondelle.org (Justiceinfo.net) Other Thu, 22 Oct 2020 12:43:09 +0200
In Mali, Al Hassan trial provokes both fear and indifference https://www.justiceinfo.net/en/tribunals/icc/45743-mali-al-hassan-trial-provokes-fear-indifference.html https://www.justiceinfo.net/en/tribunals/icc/45743-mali-al-hassan-trial-provokes-fear-indifference.html Malians lack the time, interest and means to follow Al Hassan's trial, which is being held in the Netherlands before the ICC. © CPI/ICC

Hearings in the "Al Hassan" trial resumed at the International Criminal Court (ICC) in The Hague on October 13. While the ICC and some NGOs attach particular importance to this trial, the reaction of local populations is much more mitigated -- including in Timbuktu, where the Malian jihadist and his men allegedly imposed a reign of terror. And it is hard for people there to follow the trial.

In the Malian capital Bamako, reactions to the name of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud go from a slight silence to an expression that seems to say "Al Hassan who?". The trial of this man alleged to have been head of the Islamic police in Timbuktu eight years ago has been ongoing since last July, some 6,500 km away at the International Criminal Court (ICC) in The Hague, Netherlands.

For several weeks now, national media attention has been focused on politics and the transition resulting from the military coup that took place last August. But even before this particular period for the country, the local press were already showing little interest in the trial, much to the displeasure of human rights defenders. Few people in Bamako know about "Al Hassan". However, 1,000 km to the north, in the city of Timbuktu, he is known to all. According to the ICC, he is suspected of having committed war crimes and crimes against humanity during the occupation of the city by jihadists, between April 1, 2012 and January 28, 2013. He was allegedly a member of Ansar Eddine, a Salafist jihadist armed group, and de facto commissioner of the Islamic police. He was also allegedly associated with the work of the Islamic Tribunal in Timbuktu and is suspected of having participated in the execution of its decisions.

In Timbuktu, fear and silence

In Timbuktu, the "Pearl of the Desert", most people will only talk about the "Al Hassan" trial under condition of anonymity. Fear of reprisals prevents tongues from loosening, and the wounds of those sinister months of Islamic law remain deep. The 43-year-old former "commissioner of terror" came from a village about 20 km from Timbuktu. His family and relatives are in town, and much of the population keeps mum so they cannot be identified by them. Several years after the events, the inhabitants still live under the weight of an omerta, for their own safety.

Yet some have decided to break this pact of fear. Yehia Ahma Cissé, for example, decided to fight the battle head-on. In 2012, his eldest son was killed by jihadists. Since then, wounded in his flesh, he has been fighting for "justice". He is the president of a co-ordinating body grouping several associations of victims, "eight in the city of Timbuktu alone," he says. He says the coordination has not yet been contacted to provide testimonies, even though he acknowledges that some people are afraid to do so. "We have people who are willing to testify; I am one of them," he says. But given the fear and the illiteracy of many victims, the human rights associations have a hard time convincing them. "Given the fragile situation, it goes without saying that the victims are afraid," explains Drissa Traoré, coordinator of a joint project between the Malian Association for Human Rights (AMDH) and the International Federation for Human Rights (FIDH). Through this initiative, a Malian lawyer has been appointed to be one of the legal representatives of the victims during the trial.

Internet is a luxury

However, the "Al Hassan" trial remains very little followed. The ICC has put in place a mechanism to make it accessible to Malians. The Court's Public Information and Outreach Section, with the support of the ICC office in Mali, organized training for the media and civil society. "The section has produced and will continue to produce throughout the trial ready-to-air television and radio programmes entitled ‘In the Courtroom’, providing a summary of the proceedings before the Court; background documents; audio recordings with answers to the most frequently asked questions by Malian partners; and publications on the ICC's various social networks," explains ICC spokesperson Fadi El Abdallah. Some local media, including Fondation Hirondelle's radio programme Studio Tamani, are using them to cover the trial. But these contents do not appear in the main media, such as the national radio ORTM 1.

The hearings are also broadcast online with a 30-minute delay. But in Timbuktu, a good Internet connection is a luxury and the population has difficulty following the trial. They get more information from a journalist in the region who has covered some of the hearings in The Hague, has written articles on the subject, and hosts a programme in Songhoy, one of the local languages.

A simple “executor”

The relative lack of interest in the trial can also be explained, for people in Timbuktu, by the profile of the accused. Even if the charges against "Al Hassan" are serious, he remains perceived as a simple "executor". After the trial of Ahmad Al Faqi Al Mahdi, sentenced to nine years in jail by the ICC in 2016 after pleading guilty to the destruction of mausoleums, the trial of Al Hassan, transferred to The Hague two years later, has a bitter taste. "The population does not feel a link with the Court, this trial is only a settling of scores,” says a civil society leader.  “Westerners have a grudge against some jihadists, otherwise the leaders of Al Hassan have been released."

Houka Houka Ag Alhousseini, an Islamic judge arrested by the Malian army in 2014, was released in August of the same year, following negotiations between the Malian government and armed groups in the north. He now lives in a place near the city of Timbuktu, where he is a "Koranic master". "He is completely free, and after all he has done, it is an insult to the victims," says a local human rights leader. While in Bamako in September 2019 for the launch of a political movement, Houka Houka denied the facts for which he was accused by the population, claiming that he had not ordered any "amputation" or "execution". Eager to see all those responsible before a judge, the Coordination of Victims, through its president, nevertheless still hopes that the Al Hassan trial will result in "justice being rendered and the victims compensated”.

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jean-rene.berrenger@hirondelle.org (Justiceinfo.net) ICC Thu, 22 Oct 2020 10:36:14 +0200
Eric Emeraux: "Terrorism and hate crimes have made international crimes part of our daily lives" https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/in-depth-interviews/45718-eric-emeraux-terrorism-hate-crimes-international-crimes-part-daily-lives.html https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/in-depth-interviews/45718-eric-emeraux-terrorism-hate-crimes-international-crimes-part-daily-lives.html Éric Émeraux © Benoit Peyrucq

JUSTICEINFO.NET IN-DEPTH INTERVIEWS

Éric Émeraux

Former head of the French Central Office for the Fight against Crimes against Humanity

For three years, Colonel Eric Emeraux headed France’s Office to Fight Crimes against Humanity, which has some 20 investigators specialized in the repression of international crimes. After his retirement and the publication of a book, "La traque est mon métier" (Going after people is my job), he explains frankly the conditions and limits of this exercise in the French, European and international context.

 

 

JUSTICEINFO.NET: What did you find when you arrived at the Central Office to Fight Crimes against Humanity (OCLCH)?

ÉRIC ÉMERAUX: I arrived in September 2017, after spending five years in Bosnia-Herzegovina as security attaché at the French embassy. Before that time, which was very important in my career, I had not necessarily been much aware of issues of war crimes and crimes against humanity. The main things I dealt with in the judicial police were fighting organized crime and homicides. In Srebrenica, I attended a first big ceremony in commemoration of the genocide, on July 11, that brought me squarely into the pain of the victims. It left quite a mark on me. And what left even more of a mark in contacts with Croats, Serbs and Bosnians, was to realize that they had all lived through the civil war and suffered to various degrees. That period raised lots of questions for me.

When I arrived at the Office, the situation was not great. It had only recently been created, needed to develop and exist in a competitive way. The climate was one of immediacy, where public security issues were the ones preoccupying politicians, but weren’t we supposed to work on the imprescriptibility of crimes against humanity that happened in the past? In Africa, in the Balkans an educational effort was needed vis-à-vis the bosses within the gendarmerie, given that the mandate of the Office, created by a decree of 2013, is threefold: the most serious crimes; hate crimes which we have not worked on much because overwhelmed by the first aspect; and the tracking of fugitives involved in crimes against humanity.

We are no longer working on cases dating back 25 years, such as Rwanda, but entering the present time.

What are the arguments that work with your hierarchy?

If you don't bring these issues down to the everyday level, you might as well give up. They began to come to the forefront from the moment we started receiving files of "1Fs", rejected asylum seekers. These are people who are strongly suspected of involvement in crimes against peace in their country, who have applied for protection and for whom, after analysis, OFPRA [French Office for the Protection of Refugees] deemed that they were neither protectable nor deportable. They are on French territory and so represent a potential threat on a daily basis. That's what's important. And hate crimes too, because when Jewish cemeteries were desecrated in Alsace, everyone was worried.

There is a third very important aspect here, which is international cooperation. When I arrived, Europol [European police agency] quickly created the AP CIC, a coordination group on international crimes that integrates Syrian and Iraqi issues and everything related to conflict in the Middle East. Our litigation, which was very focused on Africa, then began to shift to a large volume of Middle East cases. We are no longer working on cases dating back 25 years, such as Rwanda, but entering the present time. As all of this is grafted onto the national and European counter-terrorism problem, and as we can treat the same individual not only from the perspective of terrorism but also from the perspective of war crimes, this brings the litigation back to everyday life.

There is Europol, but also integrating our work with structures like the IIIM [International, Impartial and Independent Mechanism on Syria], UNITAD [UN Investigative Team to Promote Accountability for Crimes Committed by  Daesh] and the Genocide network. All of this has meant that we have done rather well, notably with the setting up of a joint investigation team with the Germans on Syria. This has kind of brought the Office from the shadows into the light.

In the wave of refugees, 95 % are victims of the Bashar al-Assad or other regimes, but there are also perpetrators who want to buy themselves security.

How many cases do you have?

When I arrived, we had 60 case files, which is already good. But in three years we went from that to 150. From 2017, the wave of “1Fs” arrived. We found ourselves with Taliban, Sri Lankans, Chechens and of course lots of Syrians… it was the whole world. In the wave of refugees, 95 % are victims of the Bashar al-Assad or other regimes, but there are also perpetrators who want to buy themselves security. We need the capacity to try these people efficiently. We can’t have one strong link in the chain if the others are weak. I’m not talking just about the investigations part. We need the means to try people within a relatively short time.

Is this not the case?

No.

In July 2019, a National Anti-Terrorist Prosecutor's Office (PNAT) was created, which became part of the Prosecutor's Office for Crimes against Humanity. Was this a good idea?

I don't really have an opinion on that. Nevertheless, it gives a transversal approach to the handling of cases. It seems important to me that there should be a two-pronged approach to the problem in cases such as Syria or Iraq. Here, we are talking about two categories. We have our French jihadists, to whom we can possibly attach war crimes charges. And we have the foreign jihadists, who have come to take refuge in Europe, who can also be treated in both ways. So it's still easier when you have everyone [anti-terrorism and war crimes] on the same level to exchange. This too has been the subject of coordination efforts with magistrates and police colleagues from the anti-terrorism department and with the intelligence services.

Hate crimes division works upstream of other crimes. It captures the negative impulses of a society, which always revolve around homophobia, anti-Semitism and the exclusion of others.

On the human resources side, however, you haven't made much progress...

That's for sure. At the end of the year, the Office will still have 30 men and women [compared with 19 two years ago]. Four policemen and 26 gendarmes. We benefited from the creation of a hate crimes division. That means ten more people. It's very important because, in the end, this division works upstream of other crimes. It captures the negative impulses of a society, which always revolve around homophobia, anti-Semitism and the exclusion of others.

Let's talk about investigations. When it comes to international crimes, there are the witnesses in many different places, the geographical and temporal distance, the multiplicity of actors, the lack of cooperation from the States on whose territory the crimes are committed. How do we integrate all this and ensure that the investigations are successful?

Since 2017, we've been honing our practices a bit. We still have a national component, which is quite traditional, since it involves implementing special investigative techniques found in other litigation, such as organized crime and terrorism. The international component is more complex because it is necessarily linked to the good will of the country where the atrocities were committed. But here too, over the past three years, we have managed to open a few doors. If we talk about Rwanda, things have improved because our President and the President of Rwanda have tried to find common ground. Then we opened a case linked to Liberia, where we were the first to investigate.

Belgian investigators were unable to travel to Liberia. What makes you able to do that?

We have an embassy. The fact that I worked with the Foreign Affairs Ministry in Bosnia allows me to understand how it works. One cannot evolve in a country if one does not have the support of the embassy, the liaising magistrate where there is one, and the internal security attaché. In Liberia, it was the ambassador who went to the authorities to defend an international rogatory commission and get the green light to work. Then we opened a case on Chad and we were going to open Sri Lanka, but we were blocked because of Covid-19.

The trap you must not fall into is getting bogged down in politics and diplomacy. If you stay with the technical aspect, it's fine.

Can we talk about diplomatic deals, with Rwanda for example?

It’s simply the warming of direct diplomatic relations between the two presidents. And then there was an important event, the arrival at the head of La Francophonie [international organization of francophone countries] of a Rwandan woman. All those who had been speaking with us in English in Rwanda suddenly discovered that they spoke French! It was funny, but that's part of the game. What is important is to stay with the technical aspect. The trap you must not fall into is getting bogged down in politics and diplomacy. If you stay with the technical aspect, working with people in-country who do the same, it's fine.

You say you have been honing your practices. Does that involve tools?

A lot of OSINT [open source information] tools have been developed. I'm not going to go into too much detail because those who help us don't necessarily want to be named. In traditional cases, most of the time, you have a crime scene with a corpse and, from the corpse, you can trace the perpetrator. For international crimes, most of the time we are assigned a perpetrator and we are told: he is involved in this or that thing, now prove it. The intellectual path is the opposite. We have therefore worked on setting up tools that allow us to integrate contexts. If the data has been correctly entered, we will see a complete architecture of the situation at a time "t", with who does what, who controls whom. This is what some Syrian NGOs have done, modelling the entire architecture of the country, with who is in charge, who is behind it, etc.

Open Source Intelligence (OSINT) infographic
Open source intelligence (OSINT) is now deeply embedded in the investigation of international crimes.

Could you be more specific?

At one point, to make up for the lack of manpower, I looked into artificial intelligence. We developed the possibility of doing quite advanced research on the digital world, on what is called the surface web and the non-surface web. This research serves both the hate crimes division and the crimes against humanity division. A double entry platform is used. If I want to know everything about Boko Haram from 2013 to 2014, I will be able, with certain specific tools, to receive a fully integrated report with a whole bunch of data, including video; and if I ask for a full French translation of the report, I get it; and if I want an update every 24 hours, I get it. This is what we call structured data. It can also be done on an individual. What some people used to do by hand, we can do today with fast data tools. These are research techniques that are now used and integrated into procedures.

Have they been legally validated?

It is too early. But concretely, there is no reason why they should not be. It's a question of getting everything into procedure properly. If we do a search on Facebook and Facebook gives us a username, which brings us back to a phone number, which allows us to launch a judicial eavesdropping procedure, all this is done in a classic procedure. It's the same here, except that we do it in a more automatic way.

For Kabuga, we did traditional investigative work, with cell phones, as in any organized crime or homicide investigation.

Is that what led you to the arrest of Rwandan suspect Félicien Kabuga last May in the Paris suburbs?

No, for Kabuga we did not use the platform specifically. We did traditional investigative work, with cell phones, as in any organized crime or homicide investigation.

There is a question that hasn’t been answered: Why wasn’t he arrested earlier? Is it the fault of your predecessors, or the UN Mechanism?

I would say two things. The first is that Serge Brammertz [the prosecutor of the Mechanism] created a task force that met twice, to facilitate exchanges between the stakeholders. This is to his credit. The second important point is that my predecessors had indeed received requests for international criminal assistance, but how does it work? We are told: go and check if our friend is not attending midnight mass at a particular place. These are very precise, very focused missions. We got out of that system and we used our own procedure, in this case article 74-2 of the code of criminal procedure, which allows us to search for fugitives in general and gives us all the prerogatives to investigate and catch someone red-handed. That was the key to success, in fact. That and a piece of intelligence.

A piece of intelligence?

It was a pure coincidence of police circumstances. I get along very well with my colleague at the Metropolitan Police (MET) in London. They observed that one of the members of the Kabuga family was moving, leaving English territory. They didn't know if that person was going to Belgium or France. We realized that they were coming to France. That was the first lead. First there was Brammertz's determination, then the tip from my English colleague. All of this meant that, on the morning of May 16, when we were at the door of the apartment in Asnières, we were still not sure that Kabuga was there, but we had good reason to believe that he was.

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And that could not have been done before?

Before, we didn't have confinement. Confinement has enlightened us on many things. We had already realized that the whole family was frequenting this apartment. With the confinement, nobody could move anymore. We had to get someone to come to the bedside of the elderly person. It was the son, Donatien. The objective element that made things easier was the confinement. The person who was in charge of the investigation was stuck at home, she was able to free up some time. She started to follow a lead, then gradually it got bigger and bigger and we thought, "But he's here!”

At the European level, we should create a joint international investigation team that would be a kind of franchise that could be reused on all types of litigation. Europe must invest much more in the fight against impunity.

So is cooperating with other investigating teams in Europe essential?

This is my vision, and the one I am working on with my British colleague at the MET. At the European level, we should create a task force or joint international investigation team that would be a kind of franchise that could be reused on all types of litigation. I've always believed in joint investigation teams, because it's a good way to get around a certain number of difficulties. If we manage to create a dynamic, as we managed to do with the Germans on Syria but also with the British on Rwanda, we can achieve results. This is true for the other European countries. I think that Europe must invest much more in the fight against impunity than it does today. It has not done so – which was normal and logical - because it has been taken up with the whole counter-terrorist dynamic. We're still there, but I believe that Europe has a duty to make the fight against impunity, against atrocities, part of the fight at a certain level. There is certainly room for improvement in this area.

In France, the legal framework of universal jurisdiction is more restrictive than in Germany. Is this a stumbling block?

No, in any case not a big one. But if we want to change things, I think it would be good to align ourselves with regard to the presence [of the suspect] on the territory. Of the five offences covered by the Office, we have three - crimes against humanity, war crimes, genocide – linked to habitual residence, and we have two - enforced disappearances and torture - linked to presence on the territory. It would be good to align the five offences with regard to presence.

The other element that has caused us problems was to realize, when we had to deal with cases of young Africans tortured in Libyan jails, that we were limited in terms of jurisdiction, because the 1984 New York Convention only includes State torture. With hybrid organizations or militias, which are not necessarily linked to a State structure, we have a problem. If we want to pursue the problem of human trafficking, we will have to look into this question.

This is the specificity of this Office, to work with civil society. I consider them to be sources, and our work is to put into legal form what they have been able to achieve.

Your sources of information are multiple and eclectic, how do you deal with them?

The specificity of these investigations is that they have to be integrated into a whole range of structures. If we talk about international organizations, there is the International Criminal Court, with which we work only from the angle of requests for international criminal assistance; the various UN mechanisms, notably the one on Syria with which we have many exchanges; then there is Europol, the Genocide Network and Eurojust, Interpol. Then there are the NGOs, and this is the specificity of this Office, to work with civil society. I consider them to be sources, and our work is to put into legal form what they have been able to achieve. There are the so-called context NGOs - Amnesty International and Human Rights Watch - which can shed light on a region at a given moment. There are the evidence-seeking NGOs, specialized on an area, such as Civitas Maxima for Sierra Leone and Liberia, the Civil Party Collective for Rwanda, and all the Syrian NGOs. A third category is NGOs specializing in a particular area, such as We are not Weapons of War on rape in conflict or others specializing in Open Network Sources, for example, or tracking criminals on social networks.

What is the quality of evidence provided by these NGOs?

That depends. I think that now they have understood that if they want to bring to justice the individuals they have detected, they have to align themselves upstream. We are here to help them "calibrate", to tell them: your story is good, but we will have to help you find victims and witnesses, real testimony. Once they have detected an individual, the magistrates detail the legal qualifications and then seize us, if necessary. Once we are seized, most of the time we come back to these NGOs to complete the file, to obtain elements in the procedure of which they are not necessarily aware but which are essential for the file.

The repression of international crimes serves both to ensure that our country is not a sanctuary for criminals and to ensure that justice is done, not in the name of the French people but in the name of humanity.

Given the low number of trials in France, what you call "the repression of international crimes" in your book, does it work, or is it a utopia?

We don't have enough hindsight yet. In France, we have had only six trials. Of the six, three involved crimes committed in France - Paul Touvier, Maurice Papon and Klaus Barbie - and three involved Rwandans. I think the French can accept a lot of things, but they will never accept that we have people operating on our territory when we know that they have committed the unspeakable in their country. The repression of international crimes serves both to ensure that our country is not a sanctuary for criminals and to ensure that justice is done, not in the name of the French people but in the name of humanity. This is what seems to me to be of capital importance. The objective of the book is a bit like that, it's to get out of daily politics and say take notice that this relationship to the rest of humanity is also important.

Interviewed by Franck Petit, JusticeInfo.net.

Eric Emeraux

ÉRIC ÉMERAUX

Éric Émeraux, a colonel in the French gendarmerie, headed the Central Office for the Fight against Crimes against Humanity (OCLCH) for three years before retiring on August 1, 2020. Previously, he served as Internal Security Attaché in the International Cooperation Department of the French Embassy in Sarajevo (Bosnia and Herzegovina), after a career as a judicial investigator in the French Gendarmerie. He is the author of "La Traque est mon métier, un officier sur les traces des criminels de guerre" (Plon, September 2020). Under the pseudonym of Mathias Ka, he is also a composer of electronic music.

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jean-rene.berrenger@hirondelle.org (Franck Petit) In-Depth Interviews Tue, 20 Oct 2020 11:42:30 +0200
Gambia: "The President shortened the lives of these people, they were not supposed to die" https://www.justiceinfo.net/en/truth-commissions/45708-gambia-president-shortened-lives-opeople-not-supposed-to-die.html https://www.justiceinfo.net/en/truth-commissions/45708-gambia-president-shortened-lives-opeople-not-supposed-to-die.html More evidence was brought before the Truth Commission showing Jammeh’s AIDS treatment was both “rubbish” and deadly. © Seyllou / AFP

On October 12, public hearings resumed before Gambia’s Truth, Reconciliation and Reparations Commission after a two-month break due to the Covid-19 pandemic. More doctors and lab technicians have come to testify on the fanciful – and lethal – treatment that former leader Yahya Jammeh had claimed could cure AIDS. All testimonies lead to a key actor, and expected witness: Dr Mbowe.

In January 2007, Yahya Jammeh, the autocratic leader of the Gambia, a small West African country, appeared “with a bag of herbs and made a diabolical statement,” said Essa Faal, the lead counsel of Gambia’s Truth, Reconciliation and Reparations Commission (TRRC), charged with investigating human rights violations under Jammeh’s rule (1994-2017).

Jammeh had laid claims to discovering a dose of herbal concoction that would cure HIV/AIDs in three days. His treatment has since been veiled in secrecy. But after more than two months without public sessions due to the coronavirus pandemic, the TRRC has resumed hearing testimonies on October 12 and new evidence continued to lend a rare and unique insight into a treatment that proved to be both a sham and a killer.

During one week last July and in the past week, 10 patients, 3 medical doctors, 3 lab technicians and Jammeh’s former aide de camp who all participated in the treatment described it a “hoax”.

In the last eight years of Jammeh’s 22-year rule, pictures accompanied praising songs on national television showing him treating patients. Jammeh claimed his treatment was successful by rubbing patients’ bodies with herb pastes and by giving them herbal potions. The self-named “leader of the people of faith” was brandishing around with a Quran, prayers beads and, occasionally, a miracle water he would throw at his supporters. “The treatment was just to empower the president. There was never a cure,” said last July Landing Momodou Faal, a lab technician who had been working with Gambia’s ex-ruler on his alternative AIDS treatment.

The dilemma between upholding ethics and surviving

Jammeh’s announcement of herbal cure for AIDS was a nightmare for the medical and scientific community who knew the cure was a hoax but said they could not do anything about it. Dr Assan Jaye was leading a HIV/AIDS treatment programme at a UK-sponsored Medical Research Council (MRC) hospital in Banjul, the capital city, when Jammeh announced his cure. Under his department were 1600 patients, 500 of whom were on conventional treatment. Last week Jaye told the TRRC that the announcement was shocking but that they initially discarded it as part of the dictator’s political rhetoric. It became real when some of his patients and those whose condition he was monitoring came to him to announce that they were joining Jammeh’s treatment.

Dr Assan Jaye testifies before the TRRC in Gambia
Dr Jaye: “We were caught between saving our research mandate and clashing with a political power. We decided [to] close our HIV clinic.” © Mustapha K; Darboe

The situation was to become a cruel dilemma for Dr Jaye and his team, as well as for a number of medical staff who had to deal with Jammeh’s new and deadly hare-brained idea. For Dr Jaye, Jammeh’s claim was “rubbish” but they couldn’t afford a clash with an all too powerful autocrat. They had to inform their patients – whom he said were doing very well – of the risks involved since they would be taken off their conventional treatment for an untested herbal concoction.

Abdoulie Batchilly was a lab technician at the country's only referral Royal Victoria Teaching Hospital, now renamed Edward Francis Small Teaching Hospital. “It was the most depressing period of my life because I knew what we were doing was not authentic. I was scared for my safety and the safety of my family,” he said before the TRRC.

The endorsement of Jammeh’s cure by Dr Mbowe

Batchilly tested two post-treatment patients from Jammeh’s AIDS programme. They both tested positive to the virus. Jammeh did not like that, Batchilly testified. After those two tests in the Gambia, samples were sent to a lab in Dakar, Senegal. Some samples came back showing a very low viral load. But Batchilly said the results were wrongly interpreted by Dr Tamsir Mbowe, the director of Jammeh’s treatment programme, to mean that the patients were cured. Batchilly said he confronted Dr Mbowe over his announcement. (Batchilly testified via a video link from the United Kingdom where he has lived since leaving his country over Jammeh’s fake AIDS treatment.) A Senegalese HIV/AIDS expert, professor Sulayman Mboob, whose lab had been used to conduct the tests, also wrote to refute claims that samples tested in his lab showed Jammeh cured the virus. 

“If you say you cure HIV based on an increased CD4 count and suppressed viral load, that is not a cure. You need to do a pro-viral DNA test to [establish that you] eliminate the presence of the virus in the cells,” explained Dr Jaye. But Jammeh and Dr Mbowe would not be deterred. “This cure, unless one ignores it and says this is not possible, this is 100% [true]. These people had the virus and it has been confirmed through testing. After 10 days of testing, the virus disappears from the body. What do people want now?” Dr Mbowe told national broadcaster GRTS, in 2007. Even when his colleagues like Dr Mariatou Jallow, a former director of Edward Francis Small Teaching Hospital who appeared before the TRRC last July, Batchilly and a host of others silently protested, Dr Mbowe maintained the cure was true. 

“The President shortened these people’s lives”

Months into Jammeh’s treatment, not only did medical practitioners realize it was a fraud, a lot of patients also did, said Dr Jaye. Those who were quick to notice the treatment was a fake returned to Jaye’s clinic at the MRC. “Their health was in a state of hopeless decline,” Jaye recalled. “Some died, no matter how much we tried, some survived.” Dr Jaye said that there was evidence that the longer one stayed on Jammeh’s treatment, the worse their condition got. “There was a sizable number that got retained for a long time. That group that got retained in Jammeh’s programme, their condition [had] deteriorated by the time they came back to the MRC.” Others died without ever making it back to the MRC. “We knew that some people died because we knew the people on his treatment,” said Dr Jaye. “That was the sad thing about it because these were people that we had managed to a good level of health. Unfortunately, the President shortened their lives. Those people were not supposed to die.” The Truth Commission is yet to establish how many people died. 

The MRC knew that though they couldn’t turn away patients, if they did not close their HIV clinic Jammeh would come after their whole hospital. “We were caught between saving our research mandate and clashing with a political power. The fact that these people had gone to a presidential treatment and were coming back could cause a political problem and may compromise our research mandate. We decided [to] close our HIV clinic at the MRC,” said Dr Jaye. Before closing their clinic, they sought funding from London to support the Edward Francis Small Teaching Hospital to be able to handle the HIV/AIDS patients. Meanwhile and up until 2018 Dr Mbowe still believed the treatment worked, as would indicate his statement before the Janneh Commission, a financial inquiry into the activities of Jammeh. He is now expected to appear before the TRRC and respond to the allegations against him.

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jean-rene.berrenger@hirondelle.org (Mustapha K. Darboe) Truth Commissions Mon, 19 Oct 2020 10:52:57 +0200
Colombians pressure FARC into admitting child soldiers https://www.justiceinfo.net/en/tribunals/national-tribunals/45674-colombians-pressure-farc-admitting-child-soldiers.html https://www.justiceinfo.net/en/tribunals/national-tribunals/45674-colombians-pressure-farc-admitting-child-soldiers.html More and more voices are being heard in Colombia about the fate of child soldiers in the ranks of the FARC, or of those who were teenagers when they were recruited.

Last month, Colombia’s Special Jurisdiction for Peace – known as JEP – has decided to allow public preliminary hearings. This has helped former members of the Revolutionary Armed Forces of Colombia to be more forthcoming about the forced recruitment of children into their ranks, the subject of a macro-case opened by the JEP. But there are still many missing truths in the debate over child soldiers.

Sandra Ramírez, a former Revolutionary Armed Forces of Colombia (FARC) rebel and peace negotiator, made history when she was elected in July as 2nd vice-president of Congress, a feat no other former rebel had attained before in a country that has seen several illegal armed groups switch bullets for the ballot box. Her achievement was quickly marred by a string of media interviews in which she failed to acknowledge that the ranks of the guerrilla she served in for 35 years historically included hundreds if not thousands of child soldiers. This denial sparked outrage.

Two months later, former FARC commanders began timidly admitting their responsibility in this crime and expressing their regret. They are doing so in Case 07, one of the first seven macro-cases opened by the Special Jurisdiction for Peace, Colombia’s transitional justice judicial arm – or JEP, as it is locally known – and one of two specifically focusing on FARC’s deeds.

The power of public hearings

Last month, the special tribunal decided that instructing magistrates can now choose to make preliminary hearings public. Justice Iván González, who is in charge of the recruitment case, became the first to do so. And much in the same way as former FARC finally began heeding victim’s calls to speak of ‘kidnappings’ instead of downplaying them as ‘retentions’, they have now taken steps towards acknowledging the tragedy of child soldiers and their role in recruiting them. However, in a similar vein to the kidnapping case currently investigated by the JEP, recruitment victims and organisations working with them are expecting former rebels to go much further than they have so far. Just as kidnapping victims are demanding that former rebels admit to the cruel treatment inflicted on them and the pain suffered by their families, there are a number of truths that hundreds of former child soldiers hope to see the demobilised guerrilla unambiguously admit in the case led by JEP.

Following Judge González’s decision to make hearings public, former rebels’ testimonies are now being live-streamed. The first to testify were reticent, with Abelardo Caicedo contending that FARC couldn’t check youngsters’ IDs and Rodrigo Londoño, the guerrilla’s former commander-in-chief, admitting it could have happened “due to exceptional reasons”. But they have been more forthcoming over the past two weeks, with Martín Cruz conceding he allowed children under 15 to join. “No explanation or cause justify taking away their most important years of growth and education. We cannot return these children we recruited and incorporated the time they spent in war. We cannot heal the deep wounds we inflicted on those adults who today rightly recriminate us for forcibly depriving them of their childhoods,” Joaquín Gómez, the former commander of FARC’s Southern Bloc, stated after his hearing.

A silent tragedy

Yet, even though both left-wing guerrillas and right-wing paramilitary groups incurred in it and a popular TV series raised its profile, child recruitment has remained a relatively invisible tragedy. Only 108 victims have sought accreditation as parties to the case so far, in contrast to the 2,426 who came forward in the case focusing on kidnappings, an infamous practice that garnered media attention worldwide and traumatised Colombian society.

“There is a significant advance, from FARC’s total denial initially to their recent acknowledgements. These were not isolated cases: the participation of children in war has been a constant in Colombia, in all illegal armed groups,” says José Luis Campo from Benposta, an NGO that accompanies former child soldiers. His words are backed by other numbers: the Government has officially registered 8,895 children as recruitment victims and the National Centre for Historical Memory’s report documented 16,879 cases. Both statistics show that the JEP will probably have to strengthen its outreach efforts.

Even though Joaquín Gómez said he was “willing to acknowledge forced recruitment without ambiguities and euphemisms”, the reality is that FARC have yet to admit to a number of truths around child soldiers within their ranks.

How free is a child or a teen to decide?

One is at the centre of the debate: whether FARC actively sought them. Its former leaders claim that nobody was coerced to join the organisation, but did so “conscientiously”, as Rodrigo Londoño put it. “For us, the important thing is not what surname to give recruitment but understanding that however it happened it was always forced. ‘Forced' doesn't just mean 'by way of force', but having no real choice,” says Hilda Molano of Coalico, a network of seven organisations working with children in the conflict who submitted a report on recruitment to the special tribunal. It means, for example, admitting that power disparities and their territorial control called into question whether children were really free to decide.

FARC insist that their norms forbade enrolling children under 15 and that they raised the minimum age for recruitment to 17 in 2015, while seated at the peace negotiation table. There is a legal rationale for this line of defence: conscripting children under 15 is a war crime under the Rome Statute, while enrolling older teenagers is not (although it is still deemed a crime under Colombian law).

Scores of testimonies, however, show that hundreds joined the guerrilla as teenagers or younger. At least 63% of rebels who deserted FARC between 2012 and 2014 had joined the guerrilla while underage, with 44% doing so while younger than 15, according to National Reincorporation Agency statistics.

Different experiences

Perhaps the most emblematic case is Operation Berlin, a military operation in 2000 that saw the liberation of at least 73 children and the death of an uncertain amount of them after the Army bombed their camp. They were all part of FARC’s Arturo Ruiz Mobile Column, recruited in the tropical lowlands of the Amazon and transferred to the freezing high-altitude moors of Santander where they were spotted by state forces. Twenty survivors of the operation, now fully grown and many of them professionals, got together last year to record their testimonies, drawings and maps. Their report is one of nine submitted by victims and organisations to the JEP.

To complicate matters further, many former commanders themselves joined FARC’s ranks as children, but – as Sandra Ramírez, who joined aged 17, pointed out – don’t feel anyone pushed their hand. Their view of themselves as everything but victims probably hinders them from seeing others under that light. “What Ramírez describes as her truth may be so, but it is only a half-truth. She cannot construe it as representative of the experience of the rest. They must acknowledge that not all children arrived due to persuasion or deception, but also to the use of force or threats,” says Mónica Hurtado, a professor at La Sabana University who has written extensively about forced recruitment by both guerrillas and paramilitaries.

Once in there is no way out

After compiling a database of over 2,000 court cases from different tribunals, including more than 260 cases by FARC, Hurtado has come to the conclusion that child soldiers faced what she has termed “an open entry and a closed exit”. By this she means that FARC had numerous strategies to attract children, ranging from more persuasive ones to coercive ones, but once in there was no way out. Deserters, including children, were severely punished, chained or summarily executed. Retaliations against relatives were also commonplace.

Some of those missing acknowledgments include the impossibility of walking away, the cruel punishments enforced and whether child soldiers performed activities directly related to war (such as participating in hostilities, placing landmines or gathering intelligence) or only indirect ones (including cooking, digging trenches, carrying firewood and providing sexual services). These issues have so far been noticeably absent from FARC’s statements.

“All children involved in the war had to do what was ordered or face the consequences. Age was not taken into account. We were simply tools of war who had to fulfil the organisation’s goals in a conflict that was not ours,” says Juanita Barragán, who was recruited by FARC in 2001 when she was 13 and deserted nine months later. A decade later, she was studying law and was one of the 60 victims who travelled to Havana, Cuba, to talk to the peace negotiating teams.

Violence against women at the forefront

These voices are all calling for a more nuanced public discussion on child soldiers that veers from the simplistic tropes that rebels protected vulnerable children or that all of them became sexual slaves. In their view, this means understanding social realities such as that some children saw the guerrillas as their best option for survival in regions where the state was absent, even while still underscoring the illegality of such actions. Or that, as an investigation by social psychologist Ángela María Estrada showed, many girls from families with a history of domestic violence were seduced and coaxed into joining. As researcher Mónica Hurtado points out, “binary accounts will not allow us to see these complexities.”

Perhaps the most visible aspect of forced recruitment that has come to the limelight has been sexual violence. Even though it has also been a rather invisible crime historically, as JusticeInfo told, it has become a politically contested issue in Colombia over the past year and victims – both supportive and critical of the transitional justice – are pushing for the JEP to open a macro-case on it, not merely when it targets former child soldiers.

It isn’t the only form of gender-based violence that victims are asking the special tribunal to look into. One women’s organisation, Women's Link Worldwide, is pushing for other human rights violations including forced contraception, sterilisations and abortions – which they termed ‘reproductive violence’ – to be included in the JEP’s indictment. At the centre of the report they submitted to the JEP is the case of Helena, a former FARC combatant who was recruited as a 14-year-old and suffered a forced abortion after becoming pregnant and stating her desire to have her baby.

Helena, former FARC combattant
The story of Helena, a former FARC combattant who suffered ill-treatment, threats and forced abortion, is at the centre of a report filed before the Colombian transitional justice system. © Laura Martnez Valero / Women's Link Worldwide

Helena’s case, not an exception

Helena – whose pseudonym was given to her by the Constitutional Court to protect her identity – was initially threatened with being court-martialled and executed, and ultimately tied up, drugged and given an abortion-inducing substance. She was allowed to stay with her family due to the health complications stemming from her abortion, but ended up fleeing after FARC members sent word that she was expected back. She still suffers from urinary tract infection and chronic kidney failure, as well as bouts of depression and post-traumatic stress disorder. Her family was threatened for not revealing her whereabouts.

“We see in their statements that they admit to ‘some cases’ taking place, but they’re clearly downplaying their magnitude. Beyond Helena’s case, our report shows that these were common practices throughout the organisation’s structures and in different regions,” says lawyer Mariana Ardila, who represents Helena before the JEP.

Although FARC commanders are beginning to admit this type of violence, Ardila contends that they’re constantly “introducing question marks” seeking to minimise these behaviours, insisting contraception was voluntary and that pregnancy terminations never took place beyond the third month. “They refer to policy as something that is written down, when it can also be a tolerated behaviour: the question is not whether these were orders, but if it occurred in real life. It’s undeniable that this served the military and political goals of the organisation, inasmuch as they didn’t lose combatants,” she says.

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Victims who were also perpetrators

Other victims are also taking issue with FARC’s wording. “They’re refusing to name abortions as such, with commanders like Joaquín Gómez referring to them as ‘pregnancy reversals’. This language is an embellishment that camouflages and distorts reality,” says Yudy Tovar, a 31-year-old former rebel who left FARC 13 years ago and has denounced repeated sexual assaults from her erstwhile superiors.

Tovar is the spokesperson for the White Rose (Rosa Blanca), a group of 300 former female FARC combatants who are highly critical of the transitional justice process and contend that ex-commanders seek to evade their responsibility by arguing that everything that happened in the organisation was consented. Although they speak forcefully about the case in the media, they are yet to submit their report to the JEP – something they promised a year ago – or register as parties to the case.

Rosa Blanca women exemplify another of the complexities of investigating and sanctioning recruitment. In stark contrast to the kidnapping case, whose victims are mostly civilians with no connection to the armed conflict, former child soldiers are both victims and perpetrators, or what legal scholar Iván Orozco – who advised the Government’s negotiation team in the peace talks – has dubbed “dual responsibilities”.

In fact, many of Rosa Blanca’s members are former FARC combatants who were recruited as children, distanced themselves from the organisation as adults and were carrying out prison sentences when the peace deal was signed. This means they are now on probation and also need the JEP to determine their own legal situation, with potential decisions ranging from outright pardons to being indicted in case the JEP deems they were most responsible for any mass atrocity. They are also privy to the accord’s conditions that they contribute with the truth and help redress victims.

In the end, if the JEP is able to provide Colombian society with answers to those missing truths, it will succeed where the ordinary criminal justice system has failed: out of the 132 forced recruitment cases prosecuted by the General Attorney’s Office between 2008 and 2016, 86 ended in convictions, 19 ordered some form of economic redress to victims and none of the accused were doled prison sentences.

In the current transitional justice model, former FARC leaders will only be able to escape a prison sentence if they overcome their reticence to acknowledge the full scope of child soldiers’ tragedy.

FARC VICTIM CHOSEN AS NEW TRUTH COMMISSIONER

Leyner Palacios, a respected Afro-Colombian community leader and survivor of one of FARC’s most infamous massacres, was chosen as the Truth and Reconciliation Commission’s new member two weeks ago, after commissioner Ángela Salazar died of Covid-19 in August.

Palacios hails from Bojayá, a small riverside village in the tropical forests of north-western Colombia where in 2002 FARC launched a cylinder bomb against the church where villagers were seeking refuge from a confrontation between that guerrilla and paramilitaries. The attack left 119 dead, including 28 of Palacios’ relatives. Since then, he has been a vocal victims’ leader, one of the 60 victims who travelled to Havana to speak with negotiators, and led his community’s efforts to plan the December 2015 public ceremony in which FARC publicly apologised for any of their criminal deeds for the first time.

His selection was seen as a nod to the country’s 8,9 million victims, given that his predecessor was also an Afro-Colombian community leader. In fact, at least three other prominent victims’ leaders – Mayerlis Angarita, Juana Ruiz and Yolanda Perea – also submitted their names for consideration. Palacios’ designation as the first TRC commissioner who is a direct victim of FARC was well received, although several women’s groups questioned that the TRC went from gender parity to having only a third of female members. Despite the business sector’s complaints about a perceived bias in the TRC against them, as JusticeInfo told, once again no candidates with private-sector backgrounds put their names forward.
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jean-rene.berrenger@hirondelle.org (Andrés Bermúdez Liévano) National tribunals Fri, 16 Oct 2020 11:26:22 +0200
Central African Republic: Special Court detentions shrouded in secrecy https://www.justiceinfo.net/en/tribunals/mixed-tribunals/45666-central-african-republic-special-court-detentions-shrouded-in-secrecy.html https://www.justiceinfo.net/en/tribunals/mixed-tribunals/45666-central-african-republic-special-court-detentions-shrouded-in-secrecy.html Neither the number nor the names of the detainees at the Special Criminal Court in the Central African Republic are known. An unprecedented situation in international justice. © JusticeInfo.net

This is an unprecedented situation in international justice. Officially, about fifteen suspects are in pre-trial detention at the Special Criminal Court in the Central African Republic. But this mixed court with national and international judges is keeping their identity secret, meeting criticism both inside and outside the country.

The Special Criminal Court (SCC), created by a law of June 2015 to try grave violations of human rights and international humanitarian law committed since 2003, has not yet opened any trials, and the greatest secrecy surrounds its investigations. All that is known is that suspects have been arrested at its request. "There are, to date, about 15 people in pre-trial detention,” says SCC spokesman Théophile Momokoama. “These are primarily those arrested in the Lemouna, Koundjil, Bohong, Ndélé, and Obo incidents. They are being held in pre-trial detention in the Ngaragba prison house and its annexes at Camp de Roux. Some have been held since May 2020, others since July 2020." But other sources in Bangui speak of about 20 detainees (see box). Neither their exact number nor their names are known. This is an unprecedented situation at a UN-backed court.

“Not normal”

The court refuses to disclose the identity of its detainees, arguing insecurity in the country, most of which is under the control of armed groups. Amnesty International is concerned about this choice as it prepares to publish a report on justice in the Central African Republic (CAR). "Amnesty International has no more information than the general public about those detained on behalf of the SCC. This is the first time that an international or a hybrid court has operated with so little transparency," says Alice Banens, legal advisor to the human rights NGO.  

"It's not normal!" exclaims lawyer and former prime minister of CAR Nicolas Tiangaye. Nothing, according to him, justifies such opacity. "Secrecy is for the content of the investigations, not the identity of those being prosecuted. We can understand secrecy for the witnesses but not for the accused," he says. Tiangaye, who also served as defence counsel at the International Criminal Tribunal for Rwanda, sees this as a violation of the open court principle. "Unbelievable, absolutely strange!" agrees French lawyer Vincent Courcelle-Labrousse, who is used to working for international tribunals. "This means that people are being held secretly!”

Théophile Momokoama wishes to reassure. "All these people are assisted by lawyers, in some cases appointed by the Court among the lawyers registered at the Central African Bar Association. They are visited by members of their families," he says. "The context for the SCC is not the same as for many such jurisdictions. The conflict continues in the Central African Republic, the warlords who are potentially targeted for prosecution are still in control of entire swathes of the national territory and they retain a capacity for harm that the court cannot ignore. This is why, at the current stage of the proceedings, the identity of the suspects is not revealed. On the other hand, their lawyers interact with the investigation offices and the special prosecutor's office in a fluid manner, guaranteeing all rights."

To justify keeping the identity of these detainees secret, Momokoama invokes Article 71 of the Court's Rules of Procedure and Evidence. The latter stipulates that "all persons participating in the investigation proceedings shall be bound by professional secrecy". Other provisions of the rules emphasize the protection of witnesses and victims, and even court staff, but nowhere does it mention unequivocally non-disclosure of suspects’ identity.

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A mistake, says UPC

According Justice Info’s investigations, a first three individuals were detained after the national justice system handed over to the SCC the case of massacres at Kundjili and Limouna, committed in July 2019 by members of the 3R movement in the Paoua region. A second group of detainees followed, consisting of nine individuals, including Azor Kalité, a former member of the Central African Armed Forces (FACA) who joined the Seleka, an armed rebel coalition that briefly seized power in 2013. Kalité, it seems, is being prosecuted for the April 29, 2020 attack on the northeastern town of Ndélé, in which about 20 people were killed and several others wounded. When Justice Info last week visited the high-security prison in Roux camp, rehabilitated and guarded by peacekeepers from Burkina Faso, the man appeared to be in good health. He assured us that the detention conditions were good and that he was receiving visits from family members, sometimes bringing him food. The only problem was legal assistance. The lawyer who had been assigned to him, he said, left the Bar after finding a job with an NGO. The family then chose two other lawyers, but they have not yet met with the detainee.

A third group of nine individuals includes people identified as members of the Union for Peace in the Central African Republic (UPC), one of the armed groups still active. They were arrested following an attack last May on the town of Obo, located in the far southeast of the country. Contacted by Justice Info, however, the UPC's General Staff asserts that they are not its combatants, but rather merchants, shepherds, artisans, and motorcycle cab drivers. The UPC says investigations will prove that the SCC made a mistake in this case. Human rights sources in Bangui say it is possible that some of the SCC’s pre-trial detainees may be released for lack of evidence.

New delays for trials

Also said to be on the list is "General" Zakaria Mahamat, considered the number 2 of the UPC. His arrest was announced in early September by the prosecutor of Bangui Court of Appeal, Eric Didier Tambo, although he did not say whether the suspect was wanted by the SCC or by other courts in the country. Mahamat is suspected of having played a role in the August 14 kidnapping of two surveyors, six vaccination programme workers, a doctor, and a member of parliament in the town of Mboki in Haut-Mbomou prefecture (southeastern CAR).

Momokoama asserts that "given the progress of certain cases”, the identity of the detainees will be made public "when the time is right”. According to him, "the first trials were planned for the end of this year or beginning of next year, but the Covid-19 pandemic and resulting restrictions have significantly impacted the pace of work in terms of deploying investigation teams and hearing witnesses and victims. At best, the first trials could take place in the first quarter of 2021, if not a little later." While he understands the impatience of Central Africans, he rejects the accusations of slowness often made against the SCC. "In fact, there was no delay in starting investigations, which began in January 2019. Compared to similar jurisdictions responsible for prosecuting and judging the perpetrators of international crimes (genocide, war crimes and crimes against humanity), the SCC is moving forward at a good pace.”

In fact, with the exception of the International Criminal Court and the Special Tribunal for Lebanon, all contemporary international or mixed tribunals opened their first trials within five years of their creation.

PRE-TRIAL DETENTIONS: THE UNOFFICIAL COUNT

According to our count, as many as 22 people have been held in pre-trial detention by the Special Criminal Court since mid-2019, without their identities being disclosed. This goes against the common principle of open justice.

PAOUA:

  • On August 6, 2019, the Special Prosecutor's Office announced in a communiqué, that it had obtained from the Bangui public prosecutor's office the handing over of the case on crimes committed in three localities of this sub-prefecture (Lemouna, Koundili, and Bohong).

  • On February 20, 2020, without publicly making a link with the Paoua case, the SCC announced in a press release on awareness-raising film that it had placed 3 people in pre-trial detention and that their cases were being investigated.

 NDELE:

  • On May 8, 2020, the Special Prosecutor's Office announced "its request to relinquish the case [opened by the Bangui Public Prosecutor's Office] to the Special Criminal Court”. The spokesman for the United Nations Mission in the Central African Republic told us that nine people were arrested in Ndélé "at the request of the SCC. Their leader, Azor Kalité, is said to be accused in connection with an attack on the town on April 29, which killed 21 people.

 OBO:

  • On May 25, the office of the Special Prosecutor announced that 9 combatants of the armed group Union for Peace in the Central African Republic (UPC) "were arrested and taken to the headquarters of the SCC for investigation", following widespread and systematic attacks on the civilian population. According to the UPC, these men were not combatants and their arrest was a mistake by the SCC.

  • The last person, arrested in Bangassou and handed over to the SCC according to a source close to the national gendarmerie, was “General” Zakaria Mahamat of the UPC, who was arrested by the Central African Armed Forces and accused of participating in attacks in Obo.
Some of those arrested by the SCC were later released or had their cases transferred to the ordinary courts. While the SCC was created after the 2013-2014 civil war to try the perpetrators of the most serious crimes committed since January 1, 2003, none of these arrests appear to relate to events prior to 2019.
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jean-rene.berrenger@hirondelle.org (Justiceinfo.net) Mixed tribunals Thu, 15 Oct 2020 11:35:26 +0200
Social conflicts: A new field for transitional justice? https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/opinion/45625-social-conflicts-new-field-transitional-justice.html https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/opinion/45625-social-conflicts-new-field-transitional-justice.html Picketing miner George Brealey (right), opposite policeman Paul Castle, in June 1984 in Orgreave. This photo by Don McPhee of The Guardian newspaper has become an icon of one of the most violent industrial disputes in Britain. © Don McPhee

In France, miners unfairly sacked 70 years ago are being rehabilitated and their descendants compensated. Across the Channel, the Scottish government is considering public pardons for miners convicted during the big strikes of the 1980s. These rehabilitation processes reflect a new field of transitional justice being extended to violations of social rights and dealing with authoritarian practices in democratic countries, argues Professor Jean-Pierre Massias, head of IFJD-Institut Louis Joinet.

On Friday 18 September, the French Constitutional Council - seized with a priority constitutionality issue - ruled in favour of the descendants of miners abusively dismissed during the strikes of 1948 and 1952. It considered that the distinctions made in the compensation scheme violated the principle of equality, opening the way, more than 70 years after the events, for the French State to compensate their descendants. The next day, the British press reported that the Scottish government might soon grant pardons to miners abusively sanctioned following the 1984 strike.

“Attacks on fundamental rights”

These two decisions are in line with a process started years ago. In France, following the coal miners’ strikes of 1948 and given the heavy penalties imposed on the strikers, there were demands for rehabilitation and reparation. Long limited to political and trade union circles, these demands underwent after 2004 a spectacular development, entering the legal field and being first enshrined by a decision of the Court of Appeal of Versailles in 2011, which recognized the prejudice suffered and the violation of rights. This decision was finally overturned by the Court of Cassation in 2012. But the impact of the first ruling was such that in 2014 - on the initiative of Justice Minister Christiane Taubira - an article was inserted in the finance law which, "recognizing the violations of the fundamental rights of strikers" especially the abusive nature of their dismissal, set up a system of material and symbolic reparations: a lump-sum compensation of €30,000 per miner and €5,000 for each child of these miners; those who had been stripped of their military ranks and distinctions were to be reinstated; and school curricula modified to integrate teaching about the strikes. Its scope was finally extended by the new decision of the Constitutional Council.

On the other side of the Channel, although the miners' strike of 1984 - and the closure since then of almost all the pits - seemed to have been consigned to history, there are calls to revisit this period and shed light on a number of practices. For example, Lisa Nandy, a Labour MP from Wigan (a former mining town in northwest England), questioned Prime Minister David Cameron in parliament on January 29, 2014 about the government archives - which have been open since January 1, 2014.  “It left deep scars in communities like Wigan,” she said. “Many families never recovered and people have died waiting for justice. After 30 years, they deserve the truth and they deserve an apology. Why are they still waiting?”

Independent Commission of Inquiry in Scotland

These calls received little response from the British authorities, but in June 2018 in Scotland, Secretary of State for Justice Michael Matheson declared that he was “determined that the Scottish Government should do what it can to do right by those affected by the dispute". Supported by the president of the miners' union, Nicky Wilson, Matheson announced the setting up of an inquiry, entrusted to an independent commission, to conduct "a review of the impact of policing on affected communities in Scotland during the miners' strike 1984-March 1985". Chaired by lawyer John Scott QC, the commission also includes former independent parliamentarian Dennis Canavan, former Deputy Chief Constable Kate Thomson, and Jim Murdoch, Professor of Public Law at the University of Glasgow. After releasing a first interim report on the issue in January 2019, the commission delivered its final report in 2020. It is on the basis of the - still unofficial - text of this report that the British press was able to announce, on September 19, possible pardon measures on the part of the Scottish government. 

Transitional justice tools and principles

The question of "rehabilitation" of striking French and British miners seems, as well as its intrinsic implications, to be part of the logic of transitional justice, of which it could be an innovative extension and so participate in its development. Three elements militate in favour of such a seemingly paradoxical analysis.

It is first the very structure of these processes that invites such a parallel. Both in France and the UK, the entire arsenal of transitional justice is being called upon: Beyond judicial decisions - which are often unsatisfactory in the face of victims' demands - a parallel approach is being put in place, made up of amnesty laws; independent commissions of inquiry that in many respects proceed like truth commissions by hearing all the actors and collecting testimonies; official apologies from the highest state authorities; and the will to rewrite school curricula to reintroduce the truth about social conflicts. Such a desire for reparation - financial, certainly, but also symbolic - is part of the same organizational model as transitional justice. It is a question of going back in time in the judicial sense to "restore" violations of victims’ fundamental rights by state authorities.

In this respect, the reasons why the Scottish government set up the commission of inquiry are indicative of this desire. According to Michael Matheson: “The Scottish criminal justice system has established procedures to deal with alleged miscarriages of justice and, as I have made clear to the campaigners, the Scottish Criminal Cases Review Commission is the appropriate route if anyone believes they have suffered in this particular way. However, wrongful conviction is just one form of injustice. The question is how might we better-address wider but equally distressing forms.” The renowned French magistrate Louis Joinet could no doubt identify with this policy of "equivalent guarantees" aimed at the realization of the principles of "truth, justice and reparation" - now associated with his name.

Montceau-les-Mines strikes in 1948
More than 70 years after the major miners' strikes in France in 1948, their descendants will be compensated by the State. © AFP

“A localized civil war”

Beyond the form, it is also the substance of these processes that leads to this parallel. Thus, even if the strikes take place within the framework of democratic regimes still in place today and the nature of the rights violations committed against the strikers - far removed from genocide and crimes against humanity - seems to exclude these processes from the field of transitional justice, a deeper reality calls for nuance.

Indeed, in both the French example and the British strike of 1984, the conflict goes far beyond a social conflict: it is, in fact, a more intense confrontation mobilizing considerable resources on both sides - notably military resources on the part of governments - and human communities as a whole on the side of the strikers. The violence reached very high levels. The confrontation was total, it went beyond questions of salary, status or profitability, it was a "localized civil war", according to the term used by Michelle Zancarini-Fournel in “Les luttes et les rêves - Une histoire populaire de la France de 1685 à nos jours”. French Interior Minister Jules Moch also spoke in 1948 of an "insurrectional strike" and Margaret Thatcher spoke of "the enemy within". The press and public opinion as a whole were mobilized. For The Times of August 2, 1984: “There is a war on. It is an undeclared civil war instigated by Mr. Scargill, his squads of pickets, and his associates against the rest of society. The enemy within dares insurrection against legitimate authority. The challenge can be met in only one way if the values of liberal democracy and liberty under the law are to prevail – by enforcing the surrender of Mr. Scargill and the national executive of the mineworkers’ union.”

Demands for truth and restoration of dignity

 

Sign
Memory and reparations are at the heart of the investigations carried out on the police violence in 1948 in France.

Much more than a social conflict, therefore, it is first of all a question of struggle against a subversive ideology - of which the strikers are allegedly the instruments - that is fundamentally posed. From then on, if the confrontation is global, the defeat is total, and beyond the financial damage, it is a societal shock that leaves scars on the side of the defeated. However, as in a large number of transitional justice processes, it is above all issues of memory and trauma that the actors in charge of these processes face: the testimonies collected are so many accounts of individual and collective trauma, transmitted from generation to generation. And, just as in transitional justice processes, it is first and foremost demands for truth and the restoration of dignity that are made.  During the presentation of his Legion of Honour, former striking miner Norbert Gilmez declared: "From terrorists struck down by national indignity, we have become victims of the State (...). All we are asking now is to become fully-fledged French citizens once again."

In Scotland Michael Matheson expresses similar feelings: “I have been struck, as I said, by the continuing deep feeling and sense of injustice, a sense that our fellow citizens feel they have been misrepresented and ill-treated, that they wish their side of the story to be told and that any appropriate lessons are learnt, to avoid unnecessary division and distress in the future.”

According to this text, it is indeed towards objectives of reconciliation that this process is tending:  “Whilst things have moved on considerably in the decades which have followed, the question of how best to learn from this period remains. How best can we aid understanding, reconciliation and inclusion?”

This "non-transitional" transitional justice, which aims at the democratic consolidation of the political regime through the reparation of its past crimes, has become one of the driving forces behind the evolution of transitional justice."

Dealing with authoritarian practices of democratic regimes?

Finally, a more global analysis makes it possible to support this linking of rehabilitation processes to transitional justice. Indeed, while transitional justice was originally established after conflicts or the overthrow of dictatorships, it has evolved considerably, and it is accepted that beyond its original limits, such dynamics can be established. The Moroccan example (in 2004 the new king set up an "equity and reconciliation" body) - in spite of its limits - has thus shown that there can be transitional justice for the transformation of a political regime, which can survive the denunciation of the crimes it has committed. Even more recently, the Canadian and soon Scandinavian commissions have revealed a transitional justice that makes it possible to revisit authoritarian practices, once again without questioning the nature of the political regime. This "non-transitional" transitional justice, which aims at the democratic consolidation of the political regime through the reparation of its past crimes, has become one of the driving forces behind the evolution of transitional justice. Finally, the creation in France in 2018 of a commission to shed light on sexual violence within the Catholic Church is part of this new type of process.

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Similarly, the question of social rights is also raised. From the report of the High Commissioner for Human Rights Louise Arbour in 2006 - analyzing "violations of economic, social and cultural rights" as transitional justice issues - to scientific doctrine taking up these concerns and stressing the need for such integration, there is no doubt that the question of social rights is fully part of this perspective. Consequently, the processes of rehabilitating striking miners - although specific and exceptional - are at the crossroads of this double mutation: they make transitional justice a dynamic for reforming authoritarian practices committed within the framework of democratic regimes, as well as an instrument that is now open to broader social realities and not exclusively related to criminal perspectives.

As such, by the nature of the questions they put to both social actors and legal analysts, they participate, as other experiences have been able to do previously, in the pragmatic, progressive and - for the moment - unfinished building of the frontiers, contents and foundations of transitional justice.

A multiplicity of processes in the making?

In France, the Norbert Gilmez commission, provided for in the 2015 finance law, is charged with making proposals for appropriate commemorative actions, as well as for "the miners' strikes that took place in 1941, 1948 and 1952 to be taught through the school curriculum and integrated into research programs in history and the humanities" - even if this remains in doubt for now because of the State’s lack of means and commitment. If the law ends up being finally implemented, the commission will be able to report back and complement the measures already implemented.

Orgreave: truth and justice campaign
Almost 40 years after the miners’ strikes in the United Kingdom in 1984, a commission of enquiry has just issued its report on police violence.

In the UK, the final decision of the Scottish government, as well as the publication of the final report, will also open further debates and demands. In England, too, organizations are pushing for such a process, particularly with regard to the repressive aspects of British government policy. Here we should mention the Orgreave Truth and Justice campaign, aimed at obtaining the opening of an independent inquiry into the so-called Battle of Orgreave on June 18, 1984, the most violent day of the miners’ strike – to be modelled on the one carried out for the Hillsborough stadium disaster on April 15, 1989, which brought to light the lies of the government and police about the death of 96 supporters of the Liverpool soccer team and for which Prime Ministers David Cameron and Theresa May apologized on behalf of the government. This campaign, already supported by a number of northern English city councils, may see the report and the decisions of the Scottish government as a significant "encouragement". Indeed, since September 19 and the announcement of possible pardons in Scotland, several members of the House of Commons have tabled a motion calling for the establishment of such an inquiry throughout Great Britain.

These processes are therefore not complete and could inspire many others in dealing with episodes of state violence in democratic regimes.

Jean-Pierre MassiasJEAN-PIERRE MASSIAS

President of the Francophone Institute for Justice and Democracy (IFJD), he is a law professor specializing in democratic transition processes and transitional justice mechanisms. In 2015-2016, he participated in the training of members of the Burundi TRC and supervised several research and training programs in the field of transitional justice, such as the annual IFJD summer university created in 2014. He also directs several field projects, notably in the Central African Republic and the Democratic Republic of Congo, many of which are devoted to the treatment of war rape in wartime and carried out in collaboration with the Dr. Mukwege, Panzi and Pierre Fabre Foundations.

Read our in-depth interview with Jean-Pierre Massias

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jean-rene.berrenger@hirondelle.org (Justiceinfo.net) Opinion Fri, 09 Oct 2020 11:41:57 +0200
Commission on Belgium’s colonial past: “It’s important, but will it succeed?” https://www.justiceinfo.net/en/truth-commissions/45612-commission-belgium-colonial-past-important-but-will-it-succeed.html https://www.justiceinfo.net/en/truth-commissions/45612-commission-belgium-colonial-past-important-but-will-it-succeed.html Belgium is about to immerse itself in its colonial past and its crimes. © Gaëlle Ponselet

MPs worried about the magnitude of their task, experts challenged by some associations but apparently united and enthusiastic: they were all there for the first public session of the Special Commission on Belgium’s colonial past on October 5 in Brussels. This was a first warming-up for an unprecedented collective enterprise.

"If you give yourself a little time to do it, the whole world will be watching.” It is a little after 5.30pm in the Belgian Parliament, Brussels, on October 5, and Valérie Rosoux, PhD in Philosophy and International Relations, is addressing some parliamentarians worried about the magnitude of their task. They form the special commission in charge of shedding light on Belgium's colonial past, whose first public session has just been held. "Clarify with modesty the objectives that you impose on yourself to help foster the emergence of a context that will change things," advises this professor from the University of Louvain-la-Neuve.

Five months ago Belgium decided to set up a commission on the independent state of the Congo (1885-1908) and Belgium's colonial past in the Congo (1908-1960), Rwanda and Burundi (1919-1962). This is the first time that a country has decided to conduct a real inquiry into the role of its institutions in the administration of other countries, and to face the dramatic consequences that this colonial rule has had on their populations.

At this first public session of the commission, the ten experts (historians, political scientists, jurists) who were appointed to "paint the picture", appeared before the commissioners. They were to give them some pointers before they opened up the substance of the colonial question. The experts explain their methodology and answer the commissioners' questions. "Is it realistic to come up with answers? Because the amount of work is enormous," asks one. “This exercise is important but ambitious and delicate. Do we have a chance of success?" another asks. The scale of the work to be accomplished obviously bothers the elected officials, but it is not their only concern. There is also the fact that some diaspora associations have refused to collaborate with the experts, and the still restricted access to some national archives.

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Including Congolese, Burundian and Rwandan researchers

The experts explain that they first went through a phase of "group adjustment", to learn how to communicate among themselves, establish their methodology and ethics, and create sub-groups (points of history, reconciliation processes, exchange with diasporas), then a second phase of consultations, quite demanding and still ongoing, before moving on to the last one: the writing of their first report, due in early December. "Our consultations are a preliminary step. They do not replace the real consultations that the commission will do later. Why did we make this choice? Because there is an under-representation of historians of Congolese, Burundian and Rwandan origin in the group of experts," explains Gillian Mathys, historian at the University of Ghent. "They need to play a more important role, they need to be on an equal footing with their colleagues from the North. We can't accept that they simply have to play the role of local advisors or informants. We are firmly convinced that this would be contrary to the tasks of this commission," she says.

In making this choice, the experts are responding to an initial criticism that was made in early July. Two associations of Rwandans from Belgium, DRB-Rugari and Ibuka, criticized the distinction made in the Africa Museum's preparatory note between scientific experts and opinion experts, pointing to a "tendency to systematically relegate recognized scientific personalities of African origin to the category of opinion experts" and to omit their academic titles. This criticism was taken up, in mid-August, by some 60 historians and scientists from Belgian and Congolese universities, through an opinion piece published in the newspapers Le Soir and De Standaard. "Can we understand the absence [in the group of experts] of Congolese, Rwandan and Burundian historians, many of whom have an international reputation?" they wrote.

The challenge of a participatory process

Expert panel member Martien Schotsmans then proceeded to explain to the commissioners the importance, for their work, of clearly defining what they want as a reconciliation process and what they see as reparation. "If you want the work of this commission to be legitimate and effective, you need a participatory process. The commission must initiate a dialogue within society. Can the search for reconciliation be unilaterally decided by a commission without allowing direct participation? We think it is essential to focus on participation," says the jurist, who has extensive experience with truth and reconciliation commissions in other parts of the world. "Who should participate? Those who are most concerned: members of diaspora organizations, the public sector, people from the three countries, civil society organizations other than those in the diaspora," she says. "Are you going to organize meetings in these countries? Are you going to go there or are you going to stay in Belgium? Will people come to Belgium? If you want to open a debate on the consequences of colonialism today and the links with racism and discrimination, you won't be able to do so if you only organize meetings here. You really need to go outside, you need big social debates, to open the doors to everyone so that there is a real dialogue with society," she urges.

Two associations refuse to cooperate

The experts are to associate four associations of the Diaspora to their work: the Platform of Women of the Congolese Diaspora in Belgium, Mamas for Africa, the Colonial Memory Collective and Ibuka, an association of survivors of the Tutsi genocide in Rwanda. The experts invited two others: the Change association, which coordinated the Black Lives Matter event on June 7, 2020 in Brussels, and the Collectif des Burundais sur la colonisation belge.

"One of these associations, Ibuka, has, to our great regret, refused to collaborate with us because of the composition of the group of experts and more precisely because of my presence," says Laure Uwaze, a Brussels lawyer of Rwandan origin, specialist in the Great Lakes region and member of the group of experts. "As an individual, I can tell you that I'm really sorry, because I was looking forward to working with them. The Burundian collective also withdrew after the first meeting for the same reasons. We therefore invite the commission to really hear from those people who refused to collaborate with us. We believe that all voices should be heard," she adds.

In August, Ibuka criticized the presence of this lawyer among the experts, because of her membership in the Jambo association, which is accused by some of denying the genocide in Rwanda. The challenge of reconciliation seems to be reflected already in the preparatory work of the Special Commission.

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jean-rene.berrenger@hirondelle.org (Gaëlle Ponselet) Truth Commissions Thu, 08 Oct 2020 10:38:08 +0200