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[INTRO TUNE]

Asymmetrical Haircuts Justice Update with Janet Anderson and Stephanie van den Berg, in partnership with JusticeInfo.net.

Steph: 0:11  Hi Janet.

Janet: 0:12  Hi Steph.

Steph: 0:13  This week it’s all about universal jurisdiction?

Janet: 0:15  Yes, that’s right. The question for me, the reason why I thought it might be interesting to stick some bits and pieces together, is whether this, to use this awful journalistic bit of cliché, is whether it’s now kind of come of age. Doesn’t matter what the conflict is, how much stuff is going on, we’re always going to see a rash, a kind of mushrooming, of these different accountability efforts, particularly across Europe. They always use some really important material that’s been documented by rights groups. They’re often sort of looking at stuff that’s happened way in the past, or whether they’re really just exceptional things and really, you know, because they’re like one-offs, each one of them, and they’re not really so standard. 

Steph: 00:54  So last week Switzerland made the news with this. The Swiss have indicted the former Gambian Interior Minister, Ousman Sonko, on charges of crimes against humanity committed under the regime of Yahya Jammeh, the dictator who unleashed a brutal crackdown on his political opponents. And I caught a bit of this when I was in Dakar in 2008 and 2009, and our Gambian correspondent had to be anonymous on the stories we did out of The Gambia, and also occasionally would disappear, and then we would call him and he would be hiding out in the woods because the government troops were out to find him. And actually, the previous AFP Gambian correspondent was a very famous journalist who got murdered a few years before. So that was a really, really stressful period for journalists in The Gambia, and really, you really could feel the crackdown on the media there.

Janet: 1:45  And I think this got some attention because these cases do seem to be quite rare in Switzerland. It’s only the second case to be tried in Switzerland via principles of universal jurisdiction. It’s definitely the highest-ranking official to be indicted in Europe using these principles. The start of the case also happened to coincide with the release of that Swiss NGO trial. They have an annual review of what happens in universal jurisdiction. We covered that before. That was podcast episode 33, I’ve just been reminded, which was about the kind of obstacles that victims face, particularly in accessing justice, even though there’s this increased amount of universal jurisdiction all over the world. Europe particularly is leading the way, says TRIAL, and they point out the Sweden life sentence for a deputy prosecutor in Iran for his role in executing prisoners in the 1980s. We did a podcast on that. And there’s, in France, the life sentence for a former Liberian rebel chief, and in Germany the prosecution, as we have covered before, of a former member of the Syrian intelligence services. 

Steph: 2:57  And Germany is also the focus for an effort around alleged crimes committed by the military junta in Myanmar. Now, I won’t go full Stephapedia because it’s not my mastermind subject, but I do know a bit about Myanmar. And in 2017, 700,000 Rohingya Muslim minority members were expelled, driven out by the military. And since this happened, and it garnered universal outrage, there was a military coup in 2021, and the country plunged further into chaos. Now human rights groups accuse the military now of committing atrocities in the operations against the resistance against them, including widespread attacks on the civilian populations. As we covered in previous, several previous cases, which we’ll all link to in the show notes, Myanmar is already the subject of a number of ongoing legal proceedings, with The Gambia at the ICJ, at the International Court of Justice, but also, in late 2021, the Argentinian judiciary opened an investigation into sexual and gender-based crimes allegedly taking place during this expulsion of the Rohingya. And there is an ongoing criminal case filed in Turkey by UK rights group Myanmar Accountability Project.

Janet: 4:29  Yeah, the Turkey one we haven’t covered at all. Maybe we’ll go back to that. That was in 2022 that they filed that case. I’ll try and check in with them, maybe we can get an update later on. Since you’ve also explained some of your journalistic background, Steph, I thought that I’d add in that that project is being run by somebody who I used to know at the BBC, Chris Gunness, who was covered the, you know, much earlier expulsion of the Rohingya, kind of a couple of decades previously, and has kept on top of this field. So I’ll see if I can get hold of him. 

Steph: 4:47  And besides that case, now a group of Rohingya victims and victims of the coup, of the junta coup in Myanmar, have filed a criminal complaint in Germany with the help of the NGO Fortify Rights.

Janet: 4:59  Yeah, this is more action again on the situation in Myanmar and about the alleged genocide against the Rohingya. But this complaint does also look that it’s kind of wider. It’s about a broader range of affected groups, not just the Rohingya. We’ll talk about that in just a moment. But what I also found interesting to focus on with this is that it’s a very specific complaint targeting top leadership. They say that they’re looking at Myanmar generals. And what I also found interesting is that they’re asking for a structural investigation. And maybe we’ll talk again about what structural investigations are and why they’re important. They seem to have brought, in Germany, a quite wide number of Syria cases because they did a structural investigation, we’ve got quite a kind of width and depth there. So I contacted Pavani Nagaraja Bhat, a legal associate with Fortify Rights, and asked her exactly who was included in this complaint and how maybe it differs from this range of other cases already in progress around the world.

Pavani Nagaraja Bhat: 6:08  But what we want to highlight here is that the complaint that we have prepared, along with the 16 individuals from Myanmar, is representative of how all of the atrocities that are being committed right now has brought together different ethnic groups to say that we don’t want to live under this regime and we want justice. I mean, the complaint brings together seven ethnic groups of Myanmar from different states, and they are Karen, Karenni, Bamar, Chin, Rakhine, Rohingya and Mon. So the fact that all of these groups have come together is a very unique situation. And what we are doing, in addition to everything that’s already going on, is talk about different kinds of crimes. So the other accountability processes that are already ongoing are focused on, say, the genocide or the sexual and gender-based violence that has been happening against Rohingya women and girls, or a specific region within Rakhine State. But what this complaint does is look at the whole of Myanmar and what has been happening. When we were initially preparing the case, we were also focusing on the Rohingya genocide. And this was way earlier than 2019. And once the coup happened, we realised that we have to look at this in terms of, like, what was happening in the entirety. And that’s how we ended up speaking, we ended up adding more complainants who represent other groups and who are the, who represent crimes against humanity that happened after the coup. So I think that really sets apart what we are doing.

Janet: 7:45  So her emphasis is there that what’s important is that this is a number of different ethnic groups coming together, whereas the previous focus has mainly been on the Rohingya. That is significant politically because we’ve seen strong support for the actual Myanmar authorities from different members of Myanmar’s very complicated ethnic groups. They were supporting then the leader, one of the de facto leaders of Myanmar, Aung San Suu Kyi. She was here in The Hague, as we covered previously, and she was defending the Myanmar government and she was defending the Myanmar attack on the Rohingya and defending against these allegations of genocide. And you really saw this, I mean, as far as I could see, quite a deep ethnic division. But since the military coup, I mean, there’s this big shift. The military takeover has meant that the violence coming from the regime is really widespread. The opposition to the regime is really widespread and multi-ethnic. And in March, for example, a couple of months ago, 22 people were reported killed, including a number of Buddhist monks. So maybe it’s not surprising that the actions of the military are leading to this kind of coalition forming between different groups to also seek justice.

Steph: 9:10  And what we saw before in the previous case is that the focus was mainly on those genocide charges because it was mainly focusing on the Rohingya. But now we have this wider focus in terms of ethnic groups, do we, and also other victims of the military coup. So does that also mean there’s a wider palette of crimes that they’re looking at?

Janet: 9:33  Yeah, you’re right. It does also include war crimes and crimes against humanity alongside the genocide. They aren’t giving the full details of what they’re saying. But broadly, Pavani was able to say that the genocide and the war crimes were connected, in their complaint, to the Myanmar military and their actions against the Rohingya back in 2017. And the crimes against humanity was the broader part of the complaint for Rohingya and many other ethnic groups. And that part focused on the post-coup crimes. So with this focus being on this wide range of crimes in Myanmar, I mean, it’s a bit of a kind of smorgasbord of different crimes going on there, I spoke to Pavani about why universal jurisdiction itself should be so important in all of these cases.

Pavani Nagaraja Bhat: 10:22  I think that every process that exists right now has its purpose, whether we’re talking about the ICJ proceeding, whether we’re talking about the investigation at the ICC, or the case in Argentina, or the one in Turkey. Each one of them looks at a niche area. And what all of these complaints, investigations, all of these do is complement each other, if anything. They don’t duplicate the work that the other one is doing, at least at present. And that’s how I think, that’s how we see it. I think what universal jurisdiction actually adds to this is that we see the potential of people actually being held accountable and facing consequences for their actions that may not be possible, say, with the ICJ. I mean, of course, it shapes international law. The ICJ judgments, they shape international law, and they hold states accountable. But will they be able to arrest and detain people? Will they be able to do that? What the survivors are actually asking for, because we have, you know, individuals saying, we want them to be held accountable. We want the military generals or whoever to be punished for what they did. So I think, in that sense, universal jurisdiction is, it’s unique in the way it functions, and also the fact that you are being very unselfish in the approach to which you’re looking at justice. I think that’s where Germany is very unique, because a lot of other jurisdictions which also had universal jurisdiction in their laws, the way that they exercise it is a little more restrictive, with the requirement of, you know, having the perpetrator present or the victim present, or them being required to be nationals of your country. So, and that’s one of the reasons we chose Germany too, because although we do have two of the complainants situated in Germany, they live in Germany right now, the fact that we are in the situation where most of the individual complainants are not in Germany, and we don’t know whether they will be able to get there because of, you know, the laws of the countries that they are in, the host governments and everything. But the fact that justice extends beyond national borders, and the fact that we’re looking at it as affecting humanity as a whole, I think that’s where universal jurisdiction is quite unique.

Steph: 12:47  So Pavani mentioned there, there are universal jurisdiction processes in place in Germany, and there are other countries that have them. But there are a number of obstacles that stand in the way of universal jurisdiction cases. It’s by no means a silver bullet. If you look at France, for example, they had a case in November of 2013. Dual Franco-Syrian citizens Mazen Dabbagh and his son Patrick were arrested in Damascus by Syrian intelligence. And now, after many, many years, three men have been indicted by the French authorities for their role in war crimes and crimes against humanity in relation to their disappearance. But it took very, very long before the French authorities actually ruled that they could be tried in absentia, which is something they decided very recently. And this trial will be a landmark in the French extrajudicial jurisdiction process. And there are other countries that have these kind of obstacles. Like, I know, for example, in the Netherlands you have to have either victims or perpetrator reside in the Netherlands to bring a case that deals with international crimes, as it’s called under Dutch law.

Janet: 13:57  Yeah, it’s often a very long process. And in this case, again, the indictments are a result of a long process. The French authorities started a structural investigation, there we go again, in 2016. And there were, in fact, a lot of requirements needed in order for this case to actually be brought to trial in the end. So I caught up with Clémence Bectarte in Paris. She’s both personal lawyer for members of the family and a lawyer for FIDH, the International Federation for Human Rights, to find out exactly how these men were able to be indicted, and what effects that decision might have on future cases, and to check in with her about the wider importance of these structural investigations.

Clémence Bectarte: 14:40  First of all, I think what is very important to remember is that it’s not a universal jurisdiction case, actually. It’s a passive personality jurisdiction case.

Janet: 14:49  What’s that?

Clémence Bectarte: 14:50  This case happened because both victims had dual nationalities. So, Patrick and Mazen Dabbagh were Franco-Syrian. And it is because of their French nationality that we were able to file this complaint on behalf of the brother and uncle of the victims in 2016, and that we were able to get the decision that we have obtained last week, meaning a formal order of the investigative judges sending three high officials, Ali Mamlouk, Jamil Hassan and Abdel Salam Mahmoud, to trial for complicity in crimes against humanity and war crimes. And this was only possible because of their dual nationality and because we’re not on the basis of universal jurisdiction. And why I’m saying that is because in France we have a bad universal jurisdiction law that has been adopted in 2010, that we have been struggling since then to try to amend and to convince the French authorities that we needed to modify this law that is much too restrictive, that contains a lot of conditions for limitations that make it very difficult to have progress in universal jurisdiction cases like we have obtained in this case. So it was, you know, a strategic decision at the time from Syrian civil society, first and foremost from Syrian activists, lawyers, knowing that we had this bad universal jurisdiction law in France, knowing also that we had to invest this mechanism. So let’s call it extraterritorial jurisdiction, you know, in the broader sense, because it is, of course, the only avenue for justice available today for Syrian victims. And that when it comes to France, we had to go around this bad universal jurisdiction law and to try to find other criterias for jurisdiction, and passive personality jurisdiction is one of them.

Janet: 16:47  So looking down the road, because it’s such a small but very important case, how do you think it will play out? What effect will that very small opening that you have made have on the case?

Clémence Bectarte: 17:02  Well, I think, first of all, there are other cases, similar cases concerning Syria, that will maybe, and hopefully, know other positive developments in the next months or years. So we’re waiting also for these other developments, maybe other international arrest warrants, maybe other cases to be sent to trial also. And I think that it has to be seen in this, you know, architecture of cases that has been built. And I think that, you know, the Koblenz trial, the other trials that have been and are still happening in Germany, are very important because you have defendants in the case, you have convictions and prison sentences that will be served or are being served. And at the same time, going very up the chain of command, establishing the judicial responsibility, the liability of Ali Mamlouk, Jamil Hassan, you know, they are de facto number two and three of the regime, or at least they were for Jamil Hassan until 2019, it is also very important. So it will lead to in absentia trials. At least in the Dabbagh case, this will be an in absentia trial, which I hope will happen next year before the criminal court in Paris. But I think that it is another level, another part, another aspect of the fight for accountability which is important. Establishing the responsibility of those highest responsible for crimes against humanity, having judicial recognition of their responsibility, having other international arrest warrants that will be issued, and maybe also renewed if there is a conviction in the Dabbagh case. This is another step, another step that in itself may be only symbolic, or may be considered as only symbolic. But when you add it to the other ongoing investigations across Europe, the trials going on in Germany, I think that this is part of, again, an architecture that is very important for Syrian victims and for the Syrian affected community as a whole. I don’t want to speak on their behalf, of course, but I think that it’s another way, another leverage to articulate the fight for accountability, and that it is another means also to pursue justice.

Janet: 19:17  To understand how this case fits into the structural investigation, you mentioned that that was opened on the basis of the Caesar files, which are these big collection of extraordinarily horrendous photos taken by somebody with the pseudonym of Caesar, victims of torture, people who came through all of the horrendous events that happened in Syria. Is that kind of where you get a turning point in a country, when they open a structural investigation? Is that what then opens the possibilities?

Clémence Bectarte: 19:55  Yes, it is. It’s interesting to know that, you know, not all national jurisdictions have the legal possibility to open such investigations. It exists in Germany. It has been, I would say, renamed structural investigation in France, although you will not find any mention of a structural investigation anywhere in the criminal code in France. But it has been renamed like this because it is indeed a preliminary investigation, so not a judicial investigation, but that still lies with the prosecutor’s office, and that allows the prosecutor to gather evidence on a structural basis, I would say. And because what the Caesar files are is showing crimes against humanity that were perpetrated between 2011 and, well, at least August 2013, which is the date where Caesar defected, and that allows a war crimes unit to gather in a systemic way, I would say, evidence, testimonies, to collect them, and then to see what outcome can be taken out of it. But it is also a very important way to preserve evidence, to preserve the victim statements, the witness statements, to preserve also the material evidence, such as the Caesar photos. But there exists a lot of other material evidence from the situation in Syria. I mean, there’s a lot of archives from the Syrian regime that have been smuggled out of Syria by Syrian activists. There’s a lot of other, I mean, material evidence, again, that are being now preserved by these war crimes units across Europe. So it doesn’t exist per se in every jurisdiction. It has been renamed, in some situations, a structural investigation. But the fact of having these investigations, whatever you call them, I would say, but that allow these war crimes units, without even having a suspect in the radar, but to, again, systemically collect evidence, is very important.

Steph: 21:58  One of the things that comes across in what she says is that these universal jurisdiction mechanisms can be really complex, even for lawyers, and they differ drastically from country to country. It’s very much a patchwork, and victims’ organisations really need some kind of expert advice to pilot them through the waters of what is possible in what country. Now, recently, the Clooney Foundation for Justice released a special tool called Justice Beyond Borders. It’s a global mapping tool, and we’ll put up a link to this. It’s an interactive map of the world which allows you to check which universal jurisdiction restrictions countries have. And so by clicking on France, you can see how it works in France. If you then compare it, you could then compare it to other countries. I played around with it yesterday, and I learned that in Cuba you can prosecute genocide if you have an alleged perpetrator present in Cuba. So I thought it was a very bad pun that it’s not so very Cuba libre for genocide there if they come there. But in this way, you could see for every country what is the laws they have on the books. And it doesn’t say anything about how easy it would be to prosecute it, but you can really see, like, if I have a case, could I potentially bring it to this country?

Janet: 23:11  Yeah, I think it’s an interesting tool, particularly for human rights pros and for journalists like us. But, I mean, a quick look at the map really does show the gaps, shows that these universal jurisdiction mechanisms are not completely global by any means. And that’s something that Amal Clooney was echoing when she was talking at the tool’s release that happened in The Hague a couple of months ago at The Hague Humanity Hub.

Amal Clooney: 23:42  The good news is that the potential is enormous. The Justice Beyond Borders global map that we are releasing today online shows that at least 148 states have laws that allow them to investigate and prosecute at least one of the most serious international crimes, even when it’s committed abroad. But here is the rest of the news. Only around 20% of countries criminalise all four of the international crimes that are deemed the most egregious under international law: genocide, crimes against humanity, war crimes and aggression. For example, only 51 countries criminalise the crime of aggression. Many of these laws also impose significant limitations and procedural obstacles. And most states have shown little interest in pursuing prosecutions that are possible under these laws. This has meant that only about 20 countries have ever actually used these laws to initiate cases over the last three decades, and less than half of these cases, around 60 by our count, have actually resulted in a conviction.

Janet: 24:54  Yeah, I think it’s interesting to kind of leave on that positive note because Amal has that direct experience. She’s been involved directly with prosecuting Yazidi cases in Germany, representing victims in those cases, and we’re going to plan to do a podcast on that soon. But I wonder if we could wrap up, Steph, with a little bit of a summing up of where we are now. I have the sense that much of this is because there’s still major blockages within the UN system and within the ICC to get cases. There’s very limited cases on some of the major conflicts around the world, and therefore universal jurisdiction comes into play.

Steph: 25:40  Yeah, I think that is true. It’s not only a kind of blockage that cases don’t move very quickly at the ICC, but it’s also that certain countries, if you’re not a member of the ICC, or you haven’t, like Ukraine, given the ICC jurisdiction over the conflict, they have their hands tied. So in some cases, like Syria, where the ICC cannot move in, and also, to an extent, Myanmar, where it can try to move in in some bits, but not for the genocide. We’ll link in the show notes to many episodes we did about those very legal contortions, about why they can do this and not the other. I think it’s a combination of things where I think people thought, when they started the ICC, that it would really be global, and they’re realising it’s not. And so they’re trying to kind of plug the holes with all these little other things. But it also means lots of investigation needed in other countries, and commitment and money.

Janet: 26:40  I think that’s why we have see so many of them in Europe, because, I mean, who has the money to be able to put into these kind of cases? France, for example, has this specialised unit for the prosecution of crimes against humanity and war crimes. It’s got five prosecutors and three independent investigating judges. But even then, we’ve seen very few cases go forward, and it really depends on these structural investigations happening. And there’s just so many complexities involved in each individual jurisdiction.

Steph: 27:10  Yeah. And when we talked to Dutch war crimes prosecutors, we had some roundtable with journalists and Dutch war crimes prosecutors, and they were kind of jealous, I think, of these structural investigations and would like to have that system in the Netherlands. And they’re trying to do something in between there, but theres no real, the Dutch justice system has no real room for that. So in order to get more cases, they need to investigate more broadly. But it’s very hard to get money for that, where it’s much easier to say, we have this guy, we want to do this trial, it will cost this much money, and then politicians will go, oh, okay, fine, you can have that money, because it’s an obvious kind of case. But we’re going to just throw our net very wide and see what we can get, you know, it’s not very alluring for policymakers to put money in that. It’s always very complicated. And, you know, the system is geared towards focusing very much on individuals.

Janet: 28:07  I think we have quite a listenership who are experts in all of these areas. So I think let’s just throw it open to our listeners, in case anybody wants to come back to us and tell us directly what their experience is with universal jurisdiction, whether they feel that it’s, you know, the increase means that it’s kind of going well or whether, in fact, it feels quite frustrating, this constant knocking on doors and not getting anywhere. So I’d love to hear from people about their direct experience with this.

Steph: 28:37  Yeah, let us know.

Janet: 28:39  So, see you again soon.

Steph: 28:41  See you again soon for the next time.

[OUTRO MUSIC]

This was asymmetrical haircuts, your international​ justice podcast, created and presented by Janet Anderson and Stephanie van den Berg. This episode was created in partnership with Justiceinfo.net, an independent site covering justice efforts for mass violence, and with the Hague Humanity Hub. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service, so please subscribe, give us a rating and spread the word.

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