The Mechanism’s most valuable resource are its people. We gather a diverse group of dedicated, expert staff, with significant experience in conducting and supporting complex investigations into allegations of serious international crimes. As part of a series on thematic issues related to the Mechanism’s mandate, we will highlight the experiences and insights of one of our experts.
In this conversation with Ms. Shyamala Alagendra (Malaysia), Gender and Child Rights Advisor, we learn about the investigation of crimes against children and sexual and gender-based crimes. She is deployed to the Mechanism from the Justice Rapid Response roster.
Your experience spans 22 years of investigations which included crimes against children and sexual and gender-based crimes (SGBC). What specific contexts have you worked in, and what are some of the most important cases in your experience?
I was a prosecutor at the UN Special Panel for Serious Crimes in Timor Leste, the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC) where I investigated, and prosecuted cases involving crimes against children and sexual and gender-based crimes (SGBC).
At the SCSL, I prosecuted the first case in an international court where the charges included the recruitment and use of children in conflict and forced marriage as a crime against humanity. Senior military and rebel commanders as well as Charles Taylor (who was Head of State when the crimes were committed) were ultimately convicted and sentenced to lengthy prison sentences for such crimes. As a prosecutor on the Darfur team at the ICC, I played a role in the indictment of Omar Hassan Ahmad Al Bashir, then the President of Sudan, for genocide and sexual crimes.
My other work includes serving as Assistant Director of Prosecutions of Fiji in 2018, where I prosecuted cases of child rape in which girls and boys – some as young as 2, 6 and 10 years old – testified. I secured the first life sentence for child rape in Fiji (and the Pacific) and successfully argued for an increase in the sentence tariff for child rape before the Supreme Court of Fiji. As a lawyer in private practice, I have represented (pro bono) victims of serious human right violations including torture and sexual violence by regional military troops in Sierra Leone and victims of rape by foreign clergy. In both of these cases the children allegedly born as a result of the rapes by the Nigerian military and by the clergy were recognized as a distinct group of victims. I have also represented the interests of street children, mainly boys, who were sexually abused by caregivers in a children’s home in Africa.
What are the specific characteristics of crimes involving SGBC and crimes against children?
SGBC and crimes against children generally have at least one thing in common – the abuse of power (often, but not always, by men) against those that they consider less powerful and who they wish to shame, humiliate, torture or otherwise harm. SGBC take various forms including rape, sexual slavery and persecution based on gender. Gender-related crimes such as forced marriage, forced nudity, sexual mutilation, sexualized torture are also all punishable as international crimes. These crimes may also simultaneously amount to torture and related crimes. Children fall victims to almost all international crimes but there are some crimes which are described as being “child-specific” such as the recruitment and use of children in conflict, attacks on schools and hospitals, the forcible transfer of children, and also crimes which disproportionately affect children such as torture, sexual violence and attacks on humanitarian staff and objects.
When SGBC and crimes against children are committed, the target is most often not only the individual child, woman or man themselves. These crimes are often committed as part of a deliberate and calculated policy to terrorize, repress, punish or destroy families, communities and targeted groups. These crimes are at times used as “as an expression of ethnic hatred”. This is because women and girls are frequently perceived by their communities as custodians of family honour. Children are often viewed as the most cherished members of a community or group, and represent the future and cultural continuity of a targeted group, while men are seen as protectors of the community. The gendered manner in which these crimes are inflicted is very often quite obvious. The harm that these crimes cause to the physical and mental health of victims is both severe and long-term. The forced witnessing of such crimes committed against a family member may also amount to separate international crimes.
What particular expertise and skills are required to investigate such crimes?
Some of these skills required to investigate these crimes are standard, needed for all types of investigations, while others are specific to the nature of SGBC and crimes against or affecting children. It is critical that investigators have an understanding of what the substantive crimes are, as well as the elements of those crimes. Investigators must also be seen to be independent, impartial and trusted professionals. The integrity of the investigative team as a whole also needs to be conveyed. Witnesses must understand and give their consent as to how the information they provide may be used.
These foundational issues can help to reassure witnesses that investigators appreciate the extreme difficulty that such witnesses may face to speak about what they have seen or experienced. Investigators must engage with witnesses with patience, respect, objectivity and empathy, but not pity. They must also follow best practice to mitigate the risk of re-traumatising witnesses.
Interviewing children requires specialized training and experience. Children have a right to participate and to tell their story in an environment that adapts to the unique circumstances of the individual child. The best interests of the child is a principle to be followed in all aspects of investigations that may concern the child. Investigators will need to take investigative decisions and put in place child-friendly procedures which will be in line with this principle. In all cases, investigators must understand and ensure that well-being and safety of witnesses will take priority over the value of the information they may be able to provide.
How will SGBC and crimes against children be integrated into the Mechanism’s work more broadly?
SGBC and crimes against or affecting children will be at the heart of the work of the Mechanism. These crimes will be rigorously investigated, and we will seek to share evidence and case files that prioritise these crimes with national, regional or international courts and tribunals. The Mechanism will also consider building case files against low-level perpetrators of such crimes where appropriate.
Children will be viewed as a distinct class of victims where possible and will not be subsumed into the broad category of “civilian population” or viewed within gender categories. A strong gender and intersectional perspective and analysis will also be integrated into all stages of our work. The Mechanism has recruited staff with specialized knowledge and experience in investigating SGBC and crimes against children who will be involved in investigation planning, witness interviews, evidence analysis and building of case files for future prosecutions. All investigative teams are required to consult with these experts at every stage of the investigative process.
The Mechanism is also in the process of creating guidelines for investigating SGBC and crimes concerning children which will not only ensure effective investigations of these crimes but will also ensure a survivor and child centered approach. The psychological and physical well-being, dignity and privacy of witnesses and victims is of utmost importance to the Mechanism. Adequate protection measures will be put in place to help mitigate the risk of harm to witnesses, victims and their families as a result of their cooperation and contact with the Mechanism. In this regard, the Mechanism will identify appropriate referral pathways for victims and witnesses.
What are some common challenges to building cases involving SGBC and crimes against children?
Due to cultural, religious and societal reasons, we invariably see in various conflict zones that survivors of SGBC are often stigmatized. They can be isolated, marginalized and excluded despite the fact that they have been subjected to crimes. This very often means that this category of witnesses may be fearful, uncertain and sometimes reluctant to give their accounts to investigators. Where they do come forward, it is essential that a safe space is created for survivors to give their account and that appropriate support is provided throughout.
The passage of time between when crimes are committed and when criminal investigations take place is often significant and may result in memories fading and recollection becoming less precise. Survivors are often interviewed by various documenters, including NGOs and journalists, before criminal investigators arrive. We must be aware of the risk that survivors may be re-traumatised by yet another interview and that accounts may become compromised by the manner in which those previous interviews were conducted. Another challenge may arise when survivors are living within the same community and will inevitably share their experiences with each other. This may result in defence lawyers challenging such recollections during a trial as being unreliable.
One of the biggest challenges is building cases against senior officials who were far away from the scene at the time of the commission of these crimes. That said, there are encouraging precedents that as difficult as it may be, it is not impossible. Senior officials, including those who were heads of state at the time offences were committed, have been indicted, prosecuted, convicted and sentenced by international and hybrid courts for sexual violence and crimes against children.
What is your message to the victims who are expecting the Mechanism to contribute to accountability for the crimes they suffered?
The Mechanism exists to ensure that the crimes committed against you, your family and your communities are thoroughly investigated. We are investigating crimes that should never, of course, have taken place, and in circumstances where so many have suffered enormously. Justice and accountability is a right that belongs to you and your community. At the same time, we must emphasise that building case files that can withstand scrutiny in the courtroom, and be proved beyond reasonable doubt, is a challenging endeavor and results may not be seen as quickly as you (and we) would like. The Mechanism is not a court and we do not have judges. We are an investigative team and will do our utmost to collect and preserve the evidence and build case files. These files can then be transmitted to national, regional or international courts that can conduct trials of the individuals who are the targets of our investigations. If we are to succeed in collecting, preserving and analyzing evidence and building case files that can feed into courts where fair trials are possible, we must all work together. The Mechanism cannot achieve accountability alone. We can only hope to do so by reaching out to you, gaining your trust and hearing your accounts. The Mechanism will put in place arrangements to build and maintain good communications with you and your communities and let you know what is happening to the extent possible. Given that we are conducting criminal investigations, much of the information must remain confidential to ensure the investigation is not compromised by allowing others to hide or destroy evidence, harm witnesses or avoid arrest. Rest assured, none of you is invisible, and whether you are a witness, or a survivor, we want to hear from you, and help your voice be heard so that you can – in time – see justice.