UpRights’ Legal Adviser Marin Van Hove gave a presentation entitled Using International Criminal Law to Support Refugee Protection: Lessons Learned from UpRights’ Article 15 Communication this month, as part of the 3rd Online Course on Advocacy for Protection offered by the International Institute of Humanitarian Law, Sanremo.

The presentation provided an analysis from the perspective of international criminal law, and an overview of interplay of the different applicable legal paradigms as relevant for refugee law or factual situations. This drawing from UpRights’ and its cooperation partners’ previous work submitting an Article 15 communication to the Prosecutor of the International Criminal Court, alleging war crimes and crimes against humanity committed by armed groups against refugees and migrants in Libyan detention centres.

The presentation explained how refugees and migrants are part of the nexus to armed conflict, both as contextual element of war crimes and for exercising ICC jurisdiction pursuant to UNSC Resolution 1970 (2011). It also illustrated that individual criminal responsibility under international criminal law and the International Criminal Court model may in some cases reach further than state responsibility under international human rights law and extraterritorial jurisdiction.

The International Institute of Humanitarian Law’s Online Course on Advocacy for Protection presents key elements to support transformation of policies and public perception of refugees, internally displaced persons, stateless people and migrants. Based on protection principles from international refugee, human rights and humanitarian law, the course assesses challenges and opportunities in protection situations and identifies stakeholders towards which advocacy interventions can be addressed. This year’s edition of the course focused on helping refugees and grass-roots civil society attending the UNHCR’s Global Refugee Forum this month.

UpRights is thankful to have had the opportunity to contribute to this course as part of the organisations’ cooperation.

On Thursday, November 30th, 2023, UpRights’ Co-Director, Valérie Gabard, joined the Database Center for North Korean Human Rights (NKDB) for the release of their latest report ‘Behind Closed Doors: Mapping the System of Command in the Ministry of State Security & Social Security’. This collaborative effort aims to unravel the intricate web of human rights violations in North Korea, underscoring how the discourse on the North Korean human rights issues has progressively shifted from exposing the gravity of North Korean human rights violations to finding ways to hold perpetrators accountable.

Photo Credits: NKDB

The Report’s Focus: Responsibility and Accountability

Through the employment of its database comprising over 140,000 cases of human rights violations, NKDB was able to produce a report that delves into the organizational structure and systems of command within the North Korean Ministries of State Security and Social Security. The primary goal of the report is to shed light on the systematic and widespread human rights violations occurring within North Korea, emphasizing the need to identify the responsible individuals and organizations, as well as all those actors turning blind eye to the systematic and widespread violations happening in the country.

Photo Credits: NKDB

Valérie’s Insights: Exploring Superior Responsibility

In her contribution Valérie underlined how the type of work done by NKDB could assist in pursuing accountability because of its information-seeking character, indeed, according to the UpRights’ Co-Director, a better understanding the structure and organization of the Ministries could assist judges and prosecutors understand their power structures.

Drawing from her experience from working within the International Criminal Tribunals for the former Yugoslavia and Rwanda, Valérie emphasized the challenges of prosecuting individuals and specifically discussed the concept of ‘superior responsibility’ in the context of international law. While ‘superior responsibility’ is a well-established concept in international criminal law, its application becomes more nuanced in the Korean context, where no individuals have been prosecuted yet. For this exact reason, the report aims to go beyond merely identifying individuals and organizations but also to demonstrate effective control, a crucial aspect in establishing ‘superior responsibility.’

Photo Credits: NKDB

UpRights’ Contribution: Training and Collaboration

Between December 2022 and June 2023, UpRights has been providing investigative and legal advise in the context of collecting evidence and witness reports to better understand the structure and chain of command of the North Korean’s Regime. Furthermore, in January 2023, UpRights also provided the NKDB with trainings workshops aimed at strengthening their legal capacity in documentation and accountability-seeking efforts for crimes committed in North Korea

Looking back at last week’s event, UpRights expresses its pride in the long-term partnership with NKDB and extends gratitude to the entire team for their collaboration in this significant conference. The collective effort aims to bring justice to the victims of human rights violations in North Korea and holds the promise of a brighter future for those affected.

On November 21st and 22nd, 2023, UpRights’ Co-Directors Valerie Gabard and Asa Solway, along with Senior Legal Advisor David Kinnecome, participated in a series of events organized to facilitate knowledge exchange among legal experts and enhance the capacity of Ukrainian judges in the realm of international criminal law.

On November 21st, Valérie and Asa engaged in a thought-provoking session promoted by the T.M.C Asser Instituut focusing on judgement drafting in international crimes cases. The discussion began with their relevant experience at international criminal tribunals and then moved to a specific discussion of Article 438 of the Ukrainian Criminal Code and the issues related to the applicability of international criminal law in light of its blanket provision concerning war crimes.

The presentation integrated insights from the Benchbook on the Adjudication of International Crimes in Ukraine, a resource crafted by Ukrainian judges, UpRights, and Global Rights Compliance in close cooperation with the Ukrainian Supreme Court, the National School of Judges of Ukraine and with the support of USAID and the Matra Project to aid judges in the interpretation and application of relevant domestic offenses.

On November 22nd, in a separate workshop, David Kinnecome, UpRights’ Senior Legal Advisor, joined Valérie and Asa for a workshop on comparative law organized by the USAID Justice for All Activity as part of the Inter-University Programme on International Criminal Law and Procedure for Ukrainian Law Schools (IUP-UA).

The workshop provided a platform for Ukrainian law faculties to engage in in-depth discussions on issues related to international criminal law as applied in Ukraine. The trio’s presentation covered a spectrum of topics, including the role of international law in adjudicating war crimes cases under Article 438 of the Criminal Code of Ukraine and they also explored aspects of in-absentia trials and the admission and assessment of digital evidence, drawing where relevant from the practice of international tribunals.

UpRights is pleased to support the organisations’ commitment to promoting knowledge-sharing in international justice. Read more about these visits here, about the IUP-UA Project here and read the Benchbook on the Adjudication of International Crimes.

UpRights’ Co-Director Asa Solway had the opportunity to teach a course on self-determination in international law at the University of California, Berkeley School of Law.

“Self-Determination of Peoples in International Law” aims to familiarise students with the legal foundations of self-determination in international law, considering its relevance in the United Nations Charter, the jurisprudence of the International Court of Justice, decolonization and modern dynamics of both national and international self-determination movements.

Throughout the course, students engaged in discussions and debates on a range of pertinent issues, including decolonization, secession minority rights, state sovereignty, and claims to natural resources.

The course provides a platform for students to explore contemporary approaches to the concept of the right to self-determination in light of modern advocacy movements, as well as ongoing debates surrounding the applicability, scope, and original intent of this right as envisioned in the drafting of the United Nations Charter.

In 2023, UpRights and The Hague Academy for Local Governance developed a Training of Trainers on transitional justice, as well as an interactive online training, for Ukrainian civil servants. In recognition of the International Day of Peace on September 21st, UpRights’ co-director, Asa Solway, discussed with the Hague Academy the importance of transitional justice processes in Ukraine including in light of the full-scale Russian invasion of Ukraine.

Asa observed that the training is intended to serve as a toolkit designed to help societies confront the aftermath of large-scale past conflicts, repressions, violations, or abuses. In this regard, transitional justice is composed of different processes designed to address challenges that arise during and following conflict and periods of serious human rights abuses to ensure justice and accountability, strengthen the rule of law and promote reconciliation through a victim-centered approach.

Asa observed that the situation in Ukraine faces a plurality of conflict-related challenges that, viewed through these lenses, can be addressed through transitional justice processes including by giving voice to those most affected. He further noted that although peace requires long-term commitment, communities will have the best chance to begin to rebuild while focusing on those most vulnerable if an organised approach is taken that rooted in the rule of law.

Read the full interview here and read the Benchbook on the Adjudication of International Crimes

On July 18, 2023, UpRights Senior Legal Advisor David Kinnecome alongside Ukrainian judges led the fifth and final workshop focused on procedure in international crimes cases in Ukraine. The workshop is the final in a series of events organized by the USAID Justice for All Activity following the publication of the Benchbook on the Adjudication of International Crimes, which was developed by the USAID Justice for All Activity in partnership with the National School of Judges, Global Rights Compliance, and UpRights.

David and Ukrainian judges presented attendees with national and international perspectives on issues relating to trials in absentia, the assessment and admissibility of digital evidence, and the risks of re-victimization, which are relevant to adjudicating international crimes. In particular, the event highlighted how international practice and procedures can offer guidance and in certain instances persuasive authority when considering procedural issues under the Ukraine Criminal Procedure Code.

The event closed a series of thematic workshops organized following the publication of the Benchbook on 22 June 2023 to provide judges and other stakeholders with the opportunity to discuss substantial and procedural aspects of international crimes adjudication provided by the Benchbook.

On July 12, 2023, UpRights Co-Director Valérie Gabard led the 11h lecture of the Summer School on International Criminal Justice organised by the University of Amsterdam. The Summer School examines the juridical and empirical sides of mass atrocities, striving to give its attendees a better understanding of the nature of international crimes, of their perpetrators and of the role of the international community in pursuing international justice.

UpRights provided students with a lecture on the role of civil society to fill the accountability gap for international crimes. Notably, while international tribunals played an undeniable role in holding perpetrators accountable, international actors like civil society and victim representatives have progressively attempted to mend the limitations of the current international legal order.

To illustrate the creative ways in which civil society organizations at the national and international level are trying to assist to fill this accountability gap, Valérie Gabard discussed the important role of civil society organizations in documenting international crimes and preserving evidence, highlighting in particular the best practices to ensure the efficacy of the documentation and the importance of employing creative legal thinking to assist victims in their quest for justice.

On July 10, 2023, UpRights led the second workshop in the series of events organised by the USAID Justice for All Activity following the publication of the Benchbook on the Adjudication of International Crimes, developed by the USAID Justice for All Activity in partnership with the National School of Judges, Global Rights Compliance, and UpRights.

By focusing on the topic of war crimes, the workshop aimed to provide Ukrainian judges , prosecutors and other relevant stakeholders with the information necessary to adjudicate particular war crimes by presenting a list of the war crimes applicable under Article 438 of the CCU as well as their definition under international law.

The event is part of a series of five thematic workshops organized following the publication of the Benchbook on 22 June to provide judges and stakeholders with the context to discuss substantial and procedural aspects of the process of adjudication of international crimes outlined in the Benchbook.

On July 5, 2023, UpRights conducted a workshop for judges and prosecutors from French-speaking African countries in the context of the high-level training programme on international criminal law and transnational criminal law organised by the T.M.C. Asser Instituut, the Antonio Cassese Initiative, and the International Nuremberg Principles Academy.

The workshop aimed at strengthening domestic legal capacity to prosecute international and transnational crimes. UpRights’ Co-Director Valérie Gabard delivered an interactive presentation on investigating conflict-related sexual violence, allowing participants to engage in active discussions concerning its scope and implications in the context of warcrimes and crimes against humanity. The exercise centered on prosecuting international crimes in the context of the fight against terrorism, with a particular emphasis on sexual and gender-based violence.

The course was developed to equip judges and prosecutors with practical skills, tools, and knowledge necessary to address international and transnational crimes effectively. Essential topics covered included the elements of these crimes, modes of liability, strategic planning for investigations, and ensuring the protection of victims and witnesses. By establishing a robust regional and international network, this training program seeks to enhance cooperation among national and international judiciaries and facilitate effective collaboration with the International Criminal Court (ICC) and other judicial bodies.

On July 6th, 2023, the USAID Justice for All Activity started a series of a workshops on the applicability of international law instruments concerning war crimes under article 438 of the CCU with engagement of UpRights. It follows the recent launch of the Benchbook on the Adjudication of International Crimes under Ukrainian Domestic Law developed by the USAID Justice for All Activity in partnership with the National School of Judges and Global Rights Compliance, and with participation of UpRights initiative.

The workshop aims to facilitate discussions between Ukrainian judges, prosecutors and other relevant stakeholders in interpreting the scope and content of Article 438 of the CCU, considering the nature and content of international humanitarian law and international criminal law, in particular the ICC framework.

The event is the first in a series of five thematic workshops to follow the publication of the Benchbook on 22 June. The workshops provide the opportunity for judges and other stakeholders to consider substantial and procedural aspects of international crimes adjudication provided by the Benchbook.