Alain Werner is creating new spaces for stakeholders of the international criminal justice system, such as victims, NGOs, investigators, and lawyers, to work together with the aim of building the competency of, and ultimately strengthening, domestic judicial systems across the world to undertake international crimes prosecutions. In doing so, Alain is paving the way for impunity to be something of the past, and for justice to be served.
The New Idea
There are three key aspect to the innovation of Alain’s project.
First, he gives local NGOs in affected countries a key role in the war crimes documentation process. Alain understands that collecting evidence is key to ensuring that international legal mechanisms for trying perpetrators of international crimes can be effectively leveraged: not only because that increases the likelihood of effective investigations, but also because it allows to secure documentation for a later trial. Alain also understands that NGOs in affected countries – with their appreciation of the context and culture, their strong network and the trust victims place in them – are in a unique position to carry out this crucial task. Through Civitas Maxima, he weaves close partnerships with local NGOs to build their capacity to professionally document the international crimes that happened in their territory and collaborates with them to trigger international crimes prosecutions.
Secondly, he strengthens the prosecution of international crimes at the national level. By presenting a strong criminal case supported by solid evidence, Alain is able to convince (sometimes reluctant) prosecutors and judges to take up these cases. Ultimately, judicial authorities are provided with an opportunity to gain experience with these kinds of cases, and set legal precedents in their domestic systems. This in turn strengthens “universal jurisdiction”, key, yet still under-utilized, international legal mechanism enabling third countries to prosecute perpetrators of international crimes present on their soil, regardless of their nationality. Thus, the international community as a whole is enabled to try a larger number of perpetrators of international crimes, complementing the work of the International Criminal Court (ICC).
Thirdly, Civitas Maxima aims at restoring justice locally by leveraging successful complaints abroad. By initiating multiple legal proceedings against perpetrators from the same country at once, Alain is able to create a momentum for change and have strong impact in countries affected by war crimes first, and by impunity after. Through media campaigns and outreach efforts, Alain leverages judicial ‘wins’ secured abroad to break deeply entrenched cultures of impunity. This triggers a fundamental shift in mindset – with victims becoming aware of their rights to demand justice, also locally. This change in perspective is harnessed to initiate legislative change – paving the way for justice to be restored in the country where the crimes were originally committed. In the long-run, such a shift in mindset by the local population, coupled with significant legislative change, will put an end to the ambient culture of impunity, and lay a healthy foundation for post-conflict nations to rebuild themselves.
International crimes include war crimes, acts of genocide, and crimes against humanity. Despite the well-known fact that these crimes occur on an alarming scale across the globe, the current system hinders closure and justice: less than 1% of people who allegedly committed international crimes between the Second World War and 2008 have ever been tried. For the victims of these crimes and their families, this means effective denial of one of their fundamental rights to liberty, which is access to justice, and often their best chance to heal from trauma. Moreover, impunity in respect of these crimes allows the perpetrators to continue committing them without fear of punishment. This inefficiency in the prosecution of international crimes can be tied to four main systemic problems.
Firstly, since the end of the Cold War, international tribunals and the permanent International Criminal Court (ICC) have been established to try key perpetrators of international crimes when domestic judicial institutions break down. However, the ICC only has jurisdiction when states fail to act. Furthermore, as a body established and funded by states, the ICC is very slow moving, having been bogged down, amongst other things, by realpolitik. Since its establishment in 2002, its well over one-billion-euro budget has only resulted in the Court bringing charges against 37 individuals, of whom only 4 have been convicted of international crimes.
Secondly, while domestic prosecutorial authorities can often try perpetrators in international crimes cases, they are often reluctant to do so. This can be because of little experience or legal precedent to rely on, since the legal mechanism allowing them to do so are not often used. It can also be due to limited resources: they are reticent to risk pursuing such complex cases where there is mere suspicion, necessitating the gathering of evidence in a foreign and remote context. Indeed, many criminal complaints only identify an alleged perpetrator at the outset and leave the collection of evidence from unknown victims and witnesses until later, rendering the documenting process extremely challenging in countries. As a result, universal jurisdiction is rarely used, and remains a mechanism whose practical implications are still not well understood. In 2019, for instance, it is estimated that worldwide, extra-territorial trials for international crimes took place only against 207 individuals – a small statistic, considering the vast number of individuals perpetrating international crimes and traveling or living abroad.
Thirdly, when an investigation into international crimes is launched in a third country, victims and local stakeholders in the country where the crimes were originally committed are often barely involved or given a marginal role. Normally, evidence and testimonies are obtained only after a case has been opened, rather than systematically documented beforehand. The documentation process, starting much afterwards, decreases the likelihood that justice will be obtained in the future: with time, in fact, the quality of the available evidence deteriorates or even disappears if not properly documented at the outset.
Lastly, even when perpetrators of international crimes are successfully prosecuted in a third country, this often has very little impact on the restoration of justice in the country where the crimes took place, as nothing is done locally to generate awareness about these trials occurring abroad and drive momentum for justice. As a result, such trials remain almost anecdotical for the affected population in the country where the crimes occurred, and often known by a small fraction of the population.
The first thing to do when starting to work in a country affected by international crimes, is to identify the right local human rights NGO to partner with. For this, Alain looks at a set of criteria: Firstly, integrity – to ensure a trusting relationship with the partner and the highest professionalism in dealing with the evidence and testimonies of victims. Secondly, legitimacy in the local context – to be able to collect evidence from vulnerable groups in the population and drive change in the domestic judicial system. In order to allow for local NGOs partners to succeed, Alain equips them with the legal and professional skills required, by leading them through a strong capacity building and mentoring program. The professional training is delivered by the world-renowned Institute for International Criminal Investigations (IICI). The local NGOs then use the investigation skills acquired to gather exhaustive evidence. Thanks to the rigorous documentation methodology, the local NGOs trained by Civitas Maxima and its partners set a new high-quality standard: shifting the norm and ensuring that only complaints backed by considerable impartial evidence are filed.
Civitas Maxima then concentrates on monitoring the identified alleged perpetrators who fled the country. Its role is to urge the country where the suspect is present, or resides, to bear its responsibility – flagging the case to national police or prosecutors and urging them to make use of their local international crimes legislation and “universal jurisdiction” laws. In order to be able to file criminal complaints, Alain relies on an international network of independent lawyers that allows him to pursue criminals wherever they are. Because these lawyers are familiar with the workings of their national investigative and judicial institutions, they know exactly what legal arguments to put forward, and what levers to use to make sure that the complaints are addressed and given proper consideration.
Alain then uses these legal proceedings and trials occurring abroad as a trigger to jumpstart a broader nation-wide discussion about justice and impunity in the country where the crimes were committed. By focusing on facilitating multiple cases progressing in parallel against perpetrators, Alain creates strong awareness about the justice processes that are occurring, and this builds more momentum in the country where the crimes occurred than a single isolated case would. To do so, Civitas Maxima leads creative multi-level outreach campaigns to make sure that everyone in the country, regardless of their literacy level, age, or geographical location, is informed about the process for justice that are underway and understands that impunity is not the inevitable status quo. Thanks to the collaboration with independent local journalists, local artists, radio presenters, etc., taboo-topics, such as justice and impunity, are openly discussed. This forms part of the process of overcoming the trauma experienced by victims and helps to encourage the local population to start demanding concrete change to restore justice locally, desire that decision-makers in that country can no longer ignore. Leveraging on this increased awareness, Alain facilitates – together with his local partners – discussion between civil society, national institutions and international organizations, to ensure that it leads to concrete change locally.
In Liberia, where 2 civil wars cost the lives of over 200 000 people, this model has been effective. On the one hand, Civitas Maxima has been instrumental to bring several suspected war criminals to trial and conviction. On the other, these were the trigger to peaceful protests demanding the establishment of a special court to try Liberian war criminals in Liberia, petitions to legislators, parliament members engaging to restore the justice system locally and Liberian authorities collaborating with European ones on a formal investigation on their soil.
In the long run, Alain wants to develop an international network of organizations collaborating, and also sharing best practices, to fight impunity – including through open source material that would be of assistance to all NGOs operating in this field of international criminal law and looking to successfully activate universal jurisdiction mechanisms on behalf of the victims of mass crimes.
Alain grew up in Geneva and, from an early age, was immersed in the world of law and justice. While his grandfather was a judge, and his father a prominent lawyer specializing in international arbitration, his mother fought for the rights of prisoners. Growing up, some personal experiences gave Alain the opportunity to learn about the intricacies of the judicial system, as well as to meet close-up some of the leading criminal lawyers in Switzerland. Alain likes to say that everything in his life destined him to become a criminal defense lawyer in Geneva, but a series of significant encounters and events set him on a very different path.
While studying international law at Columbia University in 2002, he met Reed Broody, a world-renowned human rights lawyer, with whom and Human Rights Watch he collaborated on the case against Hissène Habré from 2008 onwards. This encounter not only allowed Alain to discover the exciting world of international criminal prosecution, but it also taught him that, to effectively pursue justice, passionate individuals do not need to necessarily be part of the United Nations or an international court, but if they have a powerful vision and skillset they can succeed.
Alain also worked for 5 years as an attorney for the Prosecutor’s Office of the Special Court for Sierra Leone (SCSL), to try war criminals in the wake of the civil war in Sierra Leone, including on the trial of former Liberian President Charles Taylor, which in his view was one of the most resounding successes in the history of international criminal justice. In the meantime though, Alain began to understand some of the major limitations of the international legal system: prejudice in prosecution – as those with resources - such as Western businessmen dealing with blood diamonds - got away with their crimes; as well as the lack of direct victim participation in the proceedings, as victims were sometimes “showcased” rather than properly considered and involved in the legal process. For Alain, this added to the reality that the current system as it stands needs other actors.
For this reason, Alain volunteered in 2009 as Co-Counsel for Civil Parties at the Extraordinary Chambers in the Courts of Cambodia (ECCC), representing the rights of indirect victims of Khmer Rouge Comrade Duch, the Director of the infamous concentration camp S-21 in Phnom Penh between 1975 and 1979. As Duch’s trial was held over 30 years after the Khmer Rouge genocide had occurred, many direct victims had already passed away, but thankfully a lot of written evidence had been documented, triggering Alain’s realization of the absolute necessity of systematically documenting crimes and securing evidence, in order for it to be available when crimes can eventually be prosecuted, especially in countries with more oral cultures.
Fortified by these fundamental experiences and encounters, Alain returned from Cambodia with a deep-seated conviction that the international criminal justice system was not living up to the expectations of hundreds of thousands of victims all over the world, and that something urgently needed to be done to address this. Taking matters into his own hands, he got in touch with Hassan Bility, a Liberian human rights journalist who had been tortured during the civil wars, and who was a prosecution witness at the SCSL. They started working together to develop a solution to the particular context of Liberia, where impunity for war crimes has been the rule, to then expand the reach on a bigger scale. Since then, Alain has continued fine-tuning and developing this idea, and will not stop until he has effectively made a dent in shifting the culture from impunity to justice for international crimes.