Reports we Support

Geneva Call is a neutral and impartial humanitarian organization aiming at promoting respect, by Armed Non-State Actors (ANSAs), for international humanitarian norms, thereby enhancing their compliance with their obligations under international law.  

In September 2018, Geneva Call issued a Report based upon the second edition of the Garance Talks. The meeting was held in 2017 and brought together ANSAs and experts from academia and various NGOs, to discuss the current challenges faced by ANSAs in the administration of justice. The core sessions of the 2017 Garance Talks addressed three related issues: i) the legal basis for the establishment of courts and judicial processes by ANSAs and in territories controlled by them; ii) deprivation of liberty by ANSAs, including the treatment of detainees; and iii) the procedural safeguards, rights and protection of detainees.

The administration of justice by armed groups is a frequent feature in armed conflicts. Practice shows that ANSAs often try their own forces, enemies and civilians. Obviously, the condition is that, when exercising this prerogative, they respect certain judicial guarantees. Notwithstanding this practice, however,  the legal basis for the establishment of such judicial mechanisms still remains unclear.

Common Article 3 to the Four Geneva Conventions of 1949 (CA3), which applies to non-international armed conflicts (NIACs), affirms that the passing of sentences and the carrying out of executions without previous judgements pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people is prohibited with respect to persons taking no active part in hostilities. Additional Protocol II of 1977 (APII) then develops and supplements CA3, by establishing certain fundamental fair trial guarantees, such as the obligation to inform without delay, the principle of the individual criminal responsibility, the principle of legality, the presumption of innocence and privilege against self-incrimination.

Within this legal framework, some have interpreted the concept of “regularly constituted court” as only referring to a judicial mechanism established in accordance with the constitutional laws of the State. Accepting this interpretation would, however, mean recognizing that IHL does not allow armed groups to set up a parallel judicial system, completely separate from that of the State, with all the limitations that this view would bring (for instance, conflicts only fought between NSAGs would not be covered).

In this respect, the present Report proposes an alternative reading, based on the principle of equality of belligerents. According to this view, while the administration of justice is a governmental function par excellence, it is contended that, in the context of NIAC, international humanitarian law (IHL) creates equal obligations upon States and ANSAs. It follows that armed groups, like State actors, are granted the possibility to install judicial mechanisms based on their own regulations.

Unfortunately, the position just advanced raises some problematic scenarios. Many of these ANSAs, in particular those with a lower level of organization, have less potential to guarantee an administration of justice in accordance with international standards. Some authors have explained that this is due to the fact that they devote a large amount of their resources to their military, but it could also come as a consequence of their lack of knowledge of these safeguards. Moreover, according to their level of organization, ANSAs might not have a proper civil authority to ensure due processes or specific agencies prepared to carry out law enforcement operations.

Some conclusions can be drawn from the 2017 Garance Talks: first, when an ANSA does not have the capacity to respect the above mentioned safeguards, it shall not carry out judicial processes and alternative mechanisms should be sought; second, when the structure of the group varies and it is not stable, it will only carry out judicial processes as long as it has the capacity to do so; third, when the group has the capacity to carry out judicial processes in accordance with those fair trial guarantees recognized by international law, then everything feasible shall be done to respect them in full.

 

 

 

Report available at:

https://genevacall.org/wp-content/uploads/dlm_uploads/2018/09/GaranceTalks_Issue02_Report_2018_web.pdf

To read more:

https://medium.com/law-and-policy/can-armed-groups-legally-establish-their-own-courts-c0842c4b9740

http://blogs.icrc.org/law-and-policy/2018/11/22/administration-of-justice-armed-groups-some-legal-practical-concerns/

5 November 2018

This article presents the report of the International Committee of the Red Cross (ICRC), produced in August 2018, which reflects on the first ten years of the “Convention of Cluster Munitions”.

The Convention was adopted in 2008 to address the issue of death, injury and suffering caused by cluster munitions. In 2015, the Dubrovnik Action Plan followed to supplement the Convention.

To date, these treaties have achieved several notable objectives: 103 States are parties to the Convention and a further 17 are signatories, 18 States have stopped manufacture, and approximately 1.5 million weapons and over 175 million sub-munitions were destroyed. There have been no reports of alleged use of cluster munitions by State Parties, nor of new productions or export. Moreover, the Convention requires State Parties to provide for stockpile destruction within eight years of signature (except for those States who were granted extension until 2024) and clearance of cluster munition remnants within ten years. Stockpile destruction has achieved a success rate of 98%, and over 400 square kilometres of contaminated land have been cleared.  

Furthermore, the treaty calls for State Parties to provide assistance in the form of medical care, rehabilitation and psychological support, and socio-economic inclusion in areas under their jurisdiction. This assistance must not be discriminatory, and take consideration of age and gender requirement. At present, most States have implemented casualty data-collection and needs assessments, and granted national disability or assistance action plans. The treaty provides that assistance can be provided by States with more resources.

The Plan aims to strengthen the power of the Convention, and to further encourage State Parties to promote its universalization. This aim is to be achieved through enhanced cooperation, promoting model legislation, supporting the ratification process of new signatories, and advocating subscription to non-party States. The Plan also commits State Parties to assist partners in strengthening national capacity, improving the quality and quantity of victim assistance, and increasing the victim’s role in policy- and decision-making, through enhanced cooperation bilaterally or through regional or international organisations. To this end, States shall designate within their governments focal points for assistance, in the form of money, equipment, expertise, experience and human resources.

However, the Convention still faces many challenges: 77 States are non-parties, 16 of which are capable of, or currently are, carrying out production of cluster munitions. Four States: Lao People’s Democratic Republic, Vietnam, Cambodia and Iraq, are still heavily contaminated by cluster munition remnants. Since 2010, nine States have recorded use of cluster munitions within their borders. The use of cluster munitions had a disproportionate impact of civilians: 90% of casualties are civilian, 40% of which are children. Assistance to victims is often hampered by residence in conflict zones, or remote or rural areas, and has been negatively impacted by a decrease in funding and resources in recent years.

Full implementation of the Dubrovnik Action Plan’s commitments would achieve fewer victims, better quality of life in affected-areas, and compliance with stockpile destruction and clearance requirements. The ICRC suggests that one way to help reaching the objective of the Convention, despite current challenges, is for State Parties to redouble their efforts and foster increased cooperation and assistance. This goal can be accomplished by providing detailed information about their progress, the presence of any obstacles encountered and/or any request of specific assistance.

 

Original report available here:

https://www.icrc.org/en/publication/convention-cluster-munitions-first-ten-years

25 November 2018

This is a presentation of “Report of the Secretary-General on children and armed conflict in Myanmar,” released by the UN Security Council on 29 October 2018.

The United Nations Secretary-General released a report detailing human rights violations in Myanmar against children that occured between 1 July 2017 and 31 August 2018. This report is the fifth of its kind that has been submitted to the Security Council’s Working Group on Children in Armed Conflict, with the last report being submitted in December 2017. The report was conducted using research on political and security developments in Myanmar and interviews with refugees from Myanmar in Bangladesh. These interviews were verified according to UN verification standards. Through this report, the Secretary-General is able to spread awareness of the grave violations of child rights occuring in Myanmar and provide recommendations for the consideration of the Working Group on Children and Armed Conflict.

The report focuses mainly on violations occurring in northern Rakhine State, an area of Myanmar bordering Bangladesh with a large population of Rohingya people, a Muslim minority. On 25 August 2017, the Arakan Rohingya Salvation Army attacked Myanmar police posts and an army base, resulting in a swift response from the Myanmar Armed Forces (Tatmadaw). This response resulted in attacks which continued for several months and destroyed Rohingya villages. By the end of August 2018, approximately 706,000 civilians left Myanmar and fled to Bangladesh, 90% of whom were Rohingya. Additionally, the government of Myanmar implemented movement restrictions on Muslims from villages and towns in central Rakhine.

In the reporting period (1 July 2017 - 31 August 2018), the UN documented 1,166 grave violations against children in the Rakhine State townships Maungdaw, Buthidaung, and Rathedaung. The report was framed through analysing the occurrence of the “six grave violations” of child rights in Myanmar. These are defined by the Office of the Special Representative for Children and Armed Conflict as the killing and maiming of children, sexual violence against children, recruitment or use of children as soldiers, abduction of children, attacks against schools or hospitals, and denial of humanitarian access for children.

Organized and systematic attacks against Rohingya civilians orchestrated by the Government resulted in the killing and maiming of children. Across 28 villages in the townships listed above, 220 child casualties were verified. Government forces, including border guard police and special forces, were found responsible for all of these verified cases. On 27 August 2017, several witnesses stated that Tatmadaw soldiers took men and boys from their homes in Buthidaung Township, forced them to lay on the group with their hands tied, and killed them one by one. The UN verified accounts of children being shot at while fleeing violence and attacks as well.

The Tatmadaw was also found responsible for raping and sexually assaulting girls and women in eight verified cases and two highly credible cases. The youngest girl reported to be a victim of sexual violence was 10 years old. One woman reported that her 14-year-old daughter was gang-raped by two Tatmadaw soldiers, while 10 or more other soldiers watched for approximately four hours. Her daughter was then shot in front of her.

According to the report, there were 53 verified cases of the recruitment and use of children as soldiers, with most cases being attributed to the border guard police and the Tatmadaw. The border guard police forced 47 boys, aged 10 to 17, to complete border guard police camp tasks including construction, maintenance, cooking, and cleaning. In some cases, boys were threatened, humiliated, fined, and forced to work all night. In Buthidaung Township, the UN verified the use of boys, aged 10 to 18, to move military equipment during operations.

In regards to the remaining grave violations - abduction of children, attacks against schools or hospitals, and denial of humanitarian access for children - the UN verified 11 attacks on schools by the Tatmadaw, documented widespread disappearance of children and abduction of girls by armed forces, and reported the systematic denial of humanitarian access and aid in northern Rakhine after 25 August 2017.

It is important to note that the report also includes instances of non-Rohingya children being impacted, as well as violations being attributed to non-government forces. For example, a highly credible report found the Arakan Rohingya Salvation Army responsible for the death of 99 Hindus, including children.

In light of the findings of the report, the UN Special Representative urges the Government of Myanmar to allow humanitarian actors and a country task force unimpeded access to conflict-affected areas. Additionally, the Government is requested to undertake a credible investigation for the presence and accountability of all six grave violations. The Special Representative also urges armed groups to halt the recruitment of children and to ensure accountability of non-State armed groups who have carried out grave violations of child rights.

 

Original report available here:

https://childrenandarmedconflict.un.org/document/report-of-the-secretary-general-on-children-and-armed-conflict-in-myanmar-5/

18 October, 2018

The report, The Role of Victims in Criminal Proceedings, provides extensive information regarding the active participation of victims through the aid of the Specialized Criminal Chambers (SCCs) which has been put in place for the adjudication of cases involving human rights violations.


In the report, The Role of Victims in Criminal Proceedings, the main focus lies in protecting the rights of the victim as much as the defendant. Rather than simply providing the victim protection, the process of criminal justice proceedings and the provision of reparations also play a restorative role for victims while potentially leading to more successful convictions. The benefits of allowing the victim to participate as a civil party, rather than exclusively as a witness, include their initiation of prosecutions, ability to claim reparations for trauma related to their case, and the direct involvement in proceedings that may lead to a more effective trial.

In order to gain each of these rights of participation, certain victims are selected based upon the contents within their applications. A judge must decide whether the individual is a victim based on two factors: whether there was physical, mental, or emotional harm caused to them personally, and whether that harm was linked directly to the crime committed. This can include harm directly done to them, harm done to a close relative, or whether they were harmed while attempting to prevent the crime from occuring. Once a victim is granted the opportunity to participate, some activities they are permitted to participate in include: presenting and requesting evidence, calling expert witnesses, challenging and appealing court’s decisions, and presenting their views on the charges being brought against the defendant.

The report details specific locations that have taken the initiative in allowing victims to achieve more privileges in court. The International Criminal Court set the precedent for other courts to allow victims have more participation opportunities during proceedings pertaining to their case. For example, the Extraordinary Courts in the Chambers of Cambodia was the first court to allow victims to take on the role of civil parties during trials. This role allows the victims to directly support the prosecution during proceedings and the opportunity to gain moral and collective reparations. The Kosovo Special Chambers and the Special Tribunal for Lebanon have also created statues that expand on the protection of the victims and their rights to participate in proceedings. Examples of these protective and participatory rights include: the creation of a unit within the Registry responsible for protection and participation assistance of the victims, the right to be notified, acknowledge, and reparated, and the right to be represented in the pretrial and trial proceedings if it is not prejudicial to the rights of the accused. These statues emphasis the victim’s rights to be treated with dignity and respect, an effective remedy and fair trial, protection and assistance, reparation, and truth.

The participation of victims during trials can directly result in more successful convictions as well as allowing the victims to achieve reparations and emotional restoration for the harm caused to them during the crime.  

 

To know more, please read:https://www.ictj.org/sites/default/files/ICTJ-Victims_in_Criminal_Proceedings-Final-EN.pdf

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