Sir John Chilcot's report on lessons to be learned from the 2003 invasion of Iraq has taken seven years to produce. David Cameron has said it should not be about "punishing" British soldiers, but holding senior people to account. However, 13 years of numerous inquiries and criminal investigations into alleged war crimes by UK military personnel in Iraq have so far produced little in terms of criminal accountability, especially for senior military and political figures.

The mother and son of Baha Mousa hold pictures of him at their house in Basra on September 7, 2011.

© 2011 Reuters

Now that Chilcot's report is out there will be many calls to put senior people on trial for 'war crimes' – including at the International Criminal Court (ICC) in The Hague. But the ICC is not in a position to do this concerning the actual decision to invade Iraq. The court does not have the authority – yet - to prosecute people for the crime of 'aggression', such as the unlawful military invasion of another country.

But the ICC, which the UK helped establish, does have jurisdiction over 'war crimes' committed during a conflict or military occupation itself. While the ICC is designed to be a court of last resort, its prosecutor, Fatou Bensouda, has opened a preliminary examination into alleged war crimes by UK nationals in Iraq. Bensouda's office will consider whether the gravity of war crimes — provided there is evidence for them —warrant its involvement and, crucially, whether the UK authorities are willing and able to properly investigate and prosecute war crimes themselves.

Allegations of war crimes by some UK soldiers quickly surfaced after the invasion, but more than a decade on we are little advanced in knowing the whole truth about these claims, let alone in seeing anyone put on trial. Two public inquiries into specific incidents were forced on reluctant British governments by UK courts.

The first, in 2011, found that Baha Mousa, an Iraqi hotel receptionist, had died in British custody in Basra in 2003 after suffering at least 93 injuries over two days of abuse, including food and water deprivation.

The second, the Al Sweady inquiry in 2014, dismissed allegations of deliberate murder of detainees in a 2004 incident, but still found that UK interrogators had committed serious abuses against Iraqis – including deprivation of food and sleep and sight – that have all previously been found to constitute torture. Hundreds more allegations of abuse of detainees by UK nationals have been submitted to various courts, including the ICC.

So far, many of these allegations have not been properly investigated. It seems the only UK conviction for war crimes in Iraq is of Corporal Donald Payne, who received a one-year prison sentence in 2006 after pleading guilty to the war crime of inhumane treatment in connection with the death of Baha Mousa. In 2010 the government set up the Iraq Historic Allegations Team to conduct criminal investigations into alleged war crimes, but six years on there are still no new prosecutions. The findings of serious abuses in the Baha Mousa and Al Sweady inquiries did not result in new prosecutions.

UK authorities have also shown little interest in investigating whether senior military and political figures are criminally liable for any war crimes. This is despite a powerful new law of 'command responsibility' enacted in UK law in 2002, which states that military and civilian commanders should be held criminally liable for war crimes committed by people within their chain of command when they knew, or should have known, of the crimes but failed to take necessary measures to prevent them or ensure they were investigated. For civilians – for example politicians commanding the armed forces - the test is whether they knew of the crimes or 'consciously disregarded' information about them.

Given that some of the crimes allegedly carried on for years, that some allegations were published by the British media early on during the occupation, and even that the International Committee of the Red Cross' concerns about abuses in UK detention reached the desks of ministers, one would expect investigations into criminal liability of senior figures to have been launched. But there is no evidence this has happened.

The UK's previous investigative failures suggest it's more important than ever for senior figures to be held accountable after Chilcot. It is vital that UK authorities now launch prompt and thorough investigations into these grave allegations – without governmental interference – both to clear the innocent, and hold those responsible to account. The UK authorities also need to show themselves genuinely willing and capable of investigating senior military and political figures and, if the evidence warrants, prosecuting them for command responsibility for war crimes. The UK clearly has the law and the resources to bring about these prosecutions. But if it is not willing to do so, the ICC could step in.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

 

On May 30, 2016, judges at the Extraordinary African Chambers in the Senegal court system will deliver their verdict in the trial of former dictator of Chad, Hissène Habré. Habré faces charges of crimes against humanity, torture and war crimes, and the prosecutor has asked the court to hand down a life sentence. The chambers were inaugurated by Senegal and the African Union in February 2013 to prosecute the “person or persons” most responsible for international crimes committed in Chad between 1982 and 1990, the period when Habré was president.

The trial began on July 20, 2015 and ended on February 11, 2016, after testimony from 93 witnesses and final arguments. It was the first trial in the world in which the courts of one country prosecuted the former ruler of another for alleged human rights crimes. It was also the first universal jurisdiction case to proceed to trial in Africa. Universal jurisdiction is a principle of international law that allows national courts to prosecute the most serious crimes even when committed abroad, by a foreigner and against foreign victims. The New York Times has called the case “a milestone for justice in Africa.”

The following questions and answers provide more information on the case.

  1. Who is Hissène Habré?
  2. What are the charges against Habré?
  3. What crimes fall within the jurisdiction of the court?
  4. Why did it take so long to bring Habré to justice?
  5. What was the role of the Chadian government in bringing about Habré’s prosecution?
  6. How did the chambers carry out their investigation?
  7. Why was Hissène Habré the only person standing trial?
  8. What about Idriss Déby, Chad's current president?
  9. What were Habré's rights before the Extraordinary Chambers?
  10. Habré and his chosen lawyers refused to cooperate with the chambers. What effect did that have?
  11. How did the trial proceed?
  12. What were some of the highlights of the prosecution's evidence?
  13. What was the defense lawyers' strategy?
  14. How was information about the trial disseminated? 
  15. What is the maximum punishment Habré could receive if found guilty?
  16. What was the victims' role in the trial?
  17. Will the victims receive reparations?
  18. Can there be an appeal? 
  19. How are the Extraordinary Chambers structured and administered?
  20. How were the prosecutors and judges assigned?
  21. What about the trial in Chad of Habré-era security agents?
  22. How are the chambers funded?
  23. What will happen to the Extraordinary Chambers after the trial? 
  24. What were the key steps in the campaign to bring Habré to justice?
  25. What is the significance of Habré's prosecution under universal jurisdiction?
  26. How does this trial fit into critiques of the role of international justice in Africa and claims that universal jurisdiction cases target Africans?
  27. Why wasn’t Habré prosecuted in Chad?
  28. Why couldn’t the International Criminal Court prosecute Habre?

 

1. Who is Hissène Habré?

Habré was president of the former French colony of Chad from 1982 until he was deposed in 1990 by Idriss Déby Itno, the current president. Habré has been living in exile in Senegal ever since.

A 714-page study by Human Rights Watch documented evidence of Habré’s government’s responsibility for widespread political killings, systematic torture, and thousands of arbitrary arrests. The government periodically targeted civilian populations, including in the south (1983-1985), and various ethnic groups such as Chadian Arabs, the Hadjerai (1987) and the Zaghawa (1989-90), killing and arresting group members en masse when the administration perceived that the groups’ leaders posed a threat to Habré’s rule.

A 1992 Chadian Truth Commission accused Habré's government of systematic torture and said that 40,000 people died during his rule. Most abuses were carried out by his political police, the Documentation and Security Directorate (DDS), whose directors reported directly to Habré. The four successive directors belonged to Habré’s inner circle, some to the same ethnic group, Gorane anakaza, and one to the same family as Habré.

The United States and France supported Habré as a bulwark against Libya's Muammar Gaddafi, who had expansionist designs on northern Chad. Under President Ronald Reagan, the United States gave covert CIA support to help Habré take power in 1982 and then provided his government with massive military aid. The United States also used a clandestine base in Chad to organize captured Libyan soldiers into an anti-Gaddafi force in the late 1980s. Despite the abduction of the French anthropologist Françoise Claustre by Habré’s forces in 1974 and the murder of Captain Pierre Galopin, who went to Chad to negotiate her release in 1975, France also supported Habré against Gaddafi after he took power, providing him with arms, logistical support and information, and carrying out military operations “Manta” (1983) and “Hawk” (1986) to help Chad push back Libyan forces.

2. What are the charges against Habré?

On July 2, 2013 the four investigating judges of the Extraordinary Chambers indicted Habré for crimes against humanity, torture and war crimes. On February 13, 2015, after a 19-month investigation, the judges found sufficient evidence for Habré to face charges of crimes against humanity and torture as a member of a “joint criminal enterprise” and of war crimes on the basis of his “command responsibility.” Specifically, they charged Habré with:

  • The practice of murder, summary executions, and kidnapping followed by enforced disappearance and torture, amounting to crimes against humanity, against the Hadjerai and Zaghawa ethnic groups, the people of southern Chad and political opponents; 
  • Torture; and
  • The war crimes of murder, torture, unlawful transfer and unlawful confinement, and violence to life and physical well-being.  

3. What crimes fall within the jurisdiction of the court?

The chamber’s statute gives it competence over the crimes of genocide, crimes against humanity, war crimes and torture as defined in the statute. The definitions generally track those used in the statutes of the International Criminal Court and other international tribunals. The crimes must have taken place in Chad between June 7, 1982, and December 1, 1990, which correspond to the dates of Habré’s rule.

4. Why did it take so long to bring Habré to justice?

The advent of the trial, almost 25 years after Habré’s fall, is entirely due to the perseverance of Habré’s victims and their allies in nongovernmental groups. When Habré was arrested in July 2013, the Toronto Globe and Mail lauded “one of the world’s most patient and tenacious campaigns for justice.” The New York Times wrote that the “Habré case has stood out because of determined victims who were advised and supported by Human Rights Watch and other advocates.” Habré was first indicted by a Senegalese judge in 2000, but for the next 12 years the Senegalese government of former President Abdoulaye Wade subjected the victims to what the Nobel Peace Prize winner Archbishop Desmond Tutu and 117 groups from 25 African countries described as an “interminable political and legal soap opera.” It was only in 2012, when Macky Sall became president of Senegal and the International Court of Justice ordered Senegal to prosecute Habré or extradite him, that progress was made toward the trial. 

5. What was the role of the Chadian government in bringing about Habré’s prosecution?

Habré’s supporters claim that Deby’s government is behind the effort to prosecute him. However, since the victims’ first complaint in 2000, it has been the victims and their supporters who have pressed the case forward, overcoming one obstacle after another. The Chadian government has long expressed its support for Habré’s prosecution, and in 2002 it waived Habré's immunity from prosecution abroad, but it did not otherwise contribute to advancing the case in a meaningful way until it agreed to help finance the court and cooperated with the investigating judges during their four missions to Chad in 2013 and 2014. More recently, the Chadian government seemingly cooled toward the chambers, particularly in Chad’s refusal to transfer additional suspects or to allow Habré-era agents convicted in a separate proceeding in Chad (see below) to testify at Habre’s trial. 

6. How did the chambers carry out their investigation?

The investigating judges began with access to a considerable amount of evidence collected in the years since Habré’s fall, including prior Belgian and Chadian investigations into Habré’s alleged crimes.

A 1992 Chadian Truth Commission accused Habré's government of systematic torture and said that 40,000 people died during his rule. In addition, the chambers’ judges obtained the extensive file Belgian investigators prepared on Habré during four years, which contains interviews with witnesses and “insiders” who worked alongside Habré, as well as DDS documents.

Most important, the chambers’ four investigating judges conducted their own thorough 19-month investigation, and for the most part relied on evidence they developed themselves.

On May 3, 2013, Senegal and Chad signed a “Judicial cooperation agreement” to facilitate the chambers’ investigation in Chad.

The investigative judges conducted four missions (“commissions rogatoires”) to Chad - in August - September 2013, December 2013, March 2014, and May - June 2014. They were accompanied by the chief prosecutor and his deputies as well as police officers. During their visits, the judges gathered statements from 2,500 direct and indirect victims and key witnesses, including former officials of the Habré government.

The judges took copies of DDS files that Human Rights Watch had recovered  in 2001. Among the tens of thousands of documents were daily lists of prisoners and deaths in detention, interrogation reports, surveillance reports, and death certificates. The files detail how Habré placed the DDS under his direct control and kept tight control over DDS operations. Analysis of the data for Human Rights Watch revealed the names of 1,208 people who were killed or died in detention and 12,321 victims of human rights violations. In these files alone, Habré received 1,265 direct communications from the DDS about the status of 898 detainees.

The judges also appointed experts on data analysis, forensic anthropology, handwriting, the historical context of Habré’s government and the functioning and command structure of Habré’s military.

7. Why was Hissène Habré the only person standing trial?

The Chadian victims’ goal in seeking justice in Senegal since 2000 has been a trial of Habré, the head of state who directly controlled the security apparatus and had primary responsibility for his government’s actions. The victims also filed cases in 2000 in Chad against other officials of Habré’s government who were still in Chad.

Under article 3 of the chambers’ statute, the Extraordinary African Chambers can prosecute “the person or persons most responsible” for international crimes committed in Chad during Habré’s rule. In July 2013, the chief prosecutor requested the indictment of five additional officials from Habré’s administration suspected of being responsible for international crimes. These are:

  • Saleh Younous and Guihini Korei, two former directors of the DDS. Korei is Habré’s nephew;
  • Abakar Torbo, former director of the DDS prison service;
  • Mahamat Djibrine, also known as “El Djonto,” one of the “most feared torturers in Chad,” according to the National Truth Commission; and
  • Zakaria Berdei, former special security adviser to the presidency and one of those suspected of responsibility in the repression in the south in 1984.

None of them was brought before the court, however. Younous and Djibrine were convicted in Chad on charges stemming from the complaints filed by victims in the Chadian courts (see below), and Chad refused to extradite them to Senegal. Berdei is also believed to be in Chad, though he is not in custody. The locations of Torbo and Korei are unknown. As a result, only Habré was committed to trial.

8. What about Idriss Déby, Chad’s current president?

President Déby was commander in chief of Habré’s forces during the period known as “Black September,” in 1984, when a murderous wave of repression was unleashed to bring southern Chad back into the fold of the central government. In 1985, Déby was removed from this post, and after a period of study in a military school in France, he was appointed a defense adviser until he left Chad in 1989 to take up arms against Habré.

It is important to note that Article 10 of the chambers’ statute provides that “[t]he official position of an accused, whether as Head of State or Government, or as a responsible government official, shall not relieve him or her of criminal responsibility….” The chambers were thus free to pursue charges against President Déby even though he is currently a head of state, but they did not.

9. What were Habré’s rights before the Extraordinary Chambers?

The process before the Extraordinary Chambers was governed by its own Statute and the Senegalese Code of Criminal Procedure. Habré was entitled to a fair trial in accordance with international law. The International Covenant on Civil and Political Rights and the African Charter on Human and Peoples' Rights outline the minimum guarantees that must be afforded to defendants in criminal proceedings.

In accordance with those standards, the chambers’ Statute provides a number of rights to defendants, including:

  • the right to be present during trial;
  • the presumption of innocence;
  • the right to a public hearing;
  • the right to have adequate time and facilities for the preparation of the defense;
  • the right to counsel and legal assistance;
  • the right to be tried without undue delay; and
  • the right to examine and call witnesses.

10. Habré and his chosen lawyers refused to cooperate with the chambers. What effect did that have?

Many defendants facing trial for alleged crimes under international criminal law – such as Slobodan Milošević, Radovan Karadžić and Charles Taylor– asserted that they did not recognize the authority of the tribunal or that they would not cooperate, or have sought to use the trial as a platform to present their version of events.

The burden always remains on the prosecution to prove the accused’s guilt beyond a reasonable doubt. However, if the accused decides to not cooperate in their own trial, that inevitably undermines the exercise of their right to an effective defense, which includes the ability to challenge the evidence against them and the opportunity to call into question the prosecution’s case.

After Habré’s lawyers refused to appear at the opening of the trial in July 2015 because they consider the court to be illegitimate, the court appointed three Senegalese lawyers to defend him and adjourned for 45 days so they could prepare. The first day back, on September 7, Habré was brought in to the court by force, kicking and screaming. After that, he was brought into the courtroom for each session before the doors to the public opened. The three court-appointed lawyers played an active role in questioning each witness and challenging the prosecution’s case, but were handicapped by Habré’s refusal to cooperate with them. Habré has remained silent, as is his right, even when the prosecutor tried to question him in line with standard criminal trial procedure in civil law jurisdictions.

11. How did the trial proceed?

The chambers sat for 56 days and heard from 93 witnesses. The trial examined evidence regarding alleged crimes committed during various periods in Chad under Habré: attacks against the Hadjerai ethnic group (1987), the Zaghawas (1989), and southern populations including the so-called “Black September” in 1984; the arrest and torture of political prisoners, and the treatment of prisoners of war. Some of the most moving testimony came from survivors, who described their experience in prisons and camps. Among the other witnesses were experts on that period in Chad, the president of the 1992 Chadian truth commission, former members the DDS, the Belgian judge who carried out a four-year investigation into a complaint filed against Habré in Belgium, a French doctor who treated 581 torture victims, researchers from Amnesty International and Human Rights Watch, and forensic, statistical and handwriting experts.

The witnesses, after presenting their testimony to the court, were questioned, in turn, by the prosecutor, the civil party lawyers and Habré’s court-appointed lawyers. The judges, in a departure from the French civil law “inquisitorial” model, generally did not put many questions to the witnesses. 

12. What were some of the highlights of the prosecution’s evidence? 

  • Four women sent to a camp in the desert north of Chad in 1988 testified that they were used as sexual slaves for the army and that soldiers had repeatedly raped multiple women. Two were under 15 at the time. One testified that Habré himself had also raped her. 
  • Other survivors testified that rape of women detainees was frequent in the DDS’s Locaux prison in N’Djaména.
  • Ten witnesses testified that they had personally seen Habré in prison or were sent to prison personally by Habré.
  • Prison survivors said that corpses were kept rotting in jail cells until there were considered to be enough to be taken away.
  • Survivors described the main forms of torture, in particular the “arbatachar,” which involved tying all four of a prisoner's limbs behind their back to interrupt the bloodstream and induce paralysis.
  • Bandjim Bandoum, once a top DDS agent, testified about the agency’s inner workings. He explained that when reports on detainees were sent to the presidency, they came back with annotations: E for “executer - execute”; L for “liberer - set free” or V for “vu - seen.” “Only the president could request a release," he said.
  • A court-appointed handwriting expert confirmed that it was Habré who responded to a request by the International Committee of the Red Cross for the hospitalization of certain prisoners of war by writing “From now on, no prisoner of war can leave the Detention Center except in case of death.”
  • Patrick Ball of the Human Rights Data Analysis Group presented a study of mortality in Habré’s prisons, based on the DDS’s own documents, concluding that prison mortality was “hundreds of times higher than normal mortality for adult men in Chad during the same period” and “substantially higher than some of the twentieth century’s worst POW contexts” such as German prisoners of war in Soviet custody and US prisoners of war in Japanese custody.
  • Experts from the Argentine Forensic Anthropology Team carried out exhumations at a number of potential mass grave sites. In Deli, in southern Chad, the site of an alleged killing of unarmed rebels in September 1984, the experts located 21 bodies, almost all military-age men, most of whom were killed by gunshot. In Mongo, in the center of Chad, the experts uncovered 14 bodies from another 1984 massacre.
  • Clement Abaifouta, the president of the Association of Victims of the Crimes of the Hissène Habré Regime, testified that he was forced to bury the bodies of deceased detainees in mass graves.
  • Souleymane Guengueng, the founder of the victims’ association, showed the court crude eating utensils he had carved in jail.
  • Robert Hissein Gambier, who survived five years in prison, earning the nickname “The man who runs faster than death,” said that he counted 2,053 detainees who died in prison. He brought wooden sticks to demonstrate how his head was squeezed as torture.
  • Abdourahmane Guèye, a Senegalese merchant imprisoned in Chad, testified that his release was won through diplomatic negotiations between the Senegalese and Chadian governments. His Senegalese companion, Demba Gaye, died, according to DDS documents, after being placed in the “cell of death” in the Locaux prison.
  • Mahamat Nour Dadji, the child of a close adviser to Habré, testified that the DDS director arrived at their home in Habré’s car saying, “The president needs you.” Dadji was detained with his father, who was never seen again.
  • Bichara Djibrine Ahmat testified that in 1983 he was taken with 149 other Chadian prisoners of war to be executed. Only he survived to take the truth commission 10 years later to find the mass grave. 

13. What was the defense lawyers’ strategy?

The court-appointed lawyers tried to show that Habré himself was not involved in committing crimes, and challenged the credibility of a number of witnesses, particularly those who implicated Habré directly. They asserted that the accusations against Habré were part of an exaggerated media and political campaign originated by Amnesty International and the Chadian truth commission, and then taken up by Human Rights Watch with the support of the current Chadian government.

The lawyers said that Habré was a patriot, committed to defending Chad against Libyan aggression and secessionist rebels. (“If it were not thanks to President Habré, Chad would not be Chad today, but a province of Libya.”) Habré’s response was to combat insurgents but not civilians. The DDS was not under his authority, but under the Interior Ministry. 

14. How was information about the trial disseminated?

The trial was recorded in its entirety, except for some technical problems. It was streamed live on the internet and broadcast on Chadian television. Almost all the sessions have been posted to the internet. Human Rights Watch considers this a major success in ensuring that the trial was meaningful to, and understood by, the people of Chad and Senegal. The landmark nature of this trial made it all the more important that it was available for viewing by the widest possible audience.

The chambers, through a consortium of non-governmental organizations from Senegal, Belgium and Chad that received a contract from the court, undertook outreach programs to both Chad and Senegal. The consortium has trained journalists in both countries, organized public debates, created a website and produced materials to explain the trial.

Human Rights Watch was part of a separate consortium of non-governmental organizations that facilitated the travel of Chadian journalists to Senegal to cover the trial, and the travel of Senegalese journalists to Chad during the pre-trial proceedings.

15. What is the maximum punishment Habré could receive if found guilty? 

If Habré is found guilty, the chambers could impose a sentence of up to life in prison. This is the punishment requested by chief prosecutor Mbacké Fall in his closing statement on February 10. The prosecution also requested the seizure of Habré’s property frozen during the inquiry - two small bank accounts and a property in an upscale Dakar neighborhood.

If Habré is sentenced to prison, he could serve that sentence in Senegal. However the statute also provides that he could serve it “in one of the African Union member States with which Senegal has entered into an agreement concerning the execution of prison sentences.”

16. What was the victims’ role in the trial?

Victims were permitted to participate in proceedings as civil parties. More than 4,000 victims registered as civil parties. Two teams of lawyers represented the civil parties, questioning witnesses, presenting evidence and participating in the closing statements.

The victims also left their mark on the trial through their long campaign for justice as well as their dramatic testimony. An opinion article in The New York Times reflected that “[n]ever in a trial for mass crimes have the victims’ voices been so dominant.”

17. Will the victims receive reparations?

Under its statute, in the event of a conviction, the chambers may order reparations against the accused. These can be paid into a victims’ fund, which can also receive voluntary contributions by foreign governments, international institutions, and non-governmental organizations. Reparations from the victims’ fund will be open to all victims, individually or collectively, whether or not they participated in Habré’s trial.

The chief judge, Gberdao Gustave Kam, has said that if Habré is found guilty, there will be a second set of hearings on damages for the civil parties

In July 2013, after the chambers arrested Habré, President Déby said that the Chadian government would compensate survivors and relatives of those who died. There is also a Chadian court judgment ordering the government to make reparations (see below). Chad’s responsibility under international law to provide reparations to victims of gross human rights violations is separate and distinct from reparations against the accused. 

18. Can there be an appeal?

Whether Habre is found guilty or acquitted, all parties in the trial – that is the prosecution, the accused and the victims with respect to their civil interests, could appeal. Although Habré does not recognize the Chambers’ authority, the court-appointed lawyers could lodge an appeal on his behalf. If an appeal is lodged by any party, an Extraordinary African Appeals Chamber would be constituted to hear the appeal. 

19. How are the Extraordinary Chambers structured and administered?

The Extraordinary African Chambers were created inside the existing Senegalese court structure in Dakar. The chambers have four levels: an Investigative Chamber with four Senegalese investigative judges, an Indicting Chamber of three Senegalese judges, a Trial Chamber, and an Appeals Chamber. The Trial Chamber and the Appeals Chamber each have two Senegalese judges and a president from another African Union member state.

The chambers also have an administrator to ensure the smooth functioning of their activities and to handle all non-judicial aspects of the work. The administrator’s responsibilities include financial management of personnel, outreach and media information, witness protection and assistance, and judicial cooperation between Senegal and other countries, such as Chad. The administrator since the opening of the chambers has been Aly Ciré Ba, a Senegalese magistrate.

20. How were the prosecutors and judges assigned?

The prosecutors and investigative judges were nominated by Senegal’s justice minister and appointed by the chairperson of the AU Commission. The president of the Trial Chamber is Gberdao Gustave Kam of Burkina Faso. 

21. What about the trial in Chad of Habré-era security agents?

On March 25, 2015, a Chadian criminal court convicted 20 Habré-era security agents on charges of murder, torture, kidnapping and arbitrary detention, based on complaints filed by the same group of victims in 2000 but that were stalled until Senegal created the extraordinary chambers. During the Chad trial, about 50 victims described their torture and mistreatment at the hands of DDS agents. The court sentenced seven men to life in prison, including Saleh Younous, a former director of the DDS, and Mahamat Djibrine, described as one of the “most feared torturers in Chad” by the Truth Commission. Both men were also originally wanted for possible indictment by the chambers, but Chad declined to transfer them. Most of the 20 gave their testimony to the chambers when they visited Chad, but the Chadian government also refused to allow them to travel to Senegal to testify at trial. The Chadian court acquitted four others.

The Chadian court ordered the Chadian government to pay half of the US$125 million in reparations to 7,000 victims and those convicted to pay the other half. The court also ordered the government, within a year, to erect a monument to those who were killed under Habré and to turn the former DDS headquarters a museum. These were both among the long-standing demands of the victims’ associations. One year after the court decision, the Chadian government has not implemented any of these compensatory measures. 

22. How are the chambers funded?

The chambers are funded in large part by donor countries. In November 2012, Senegal and donor countries agreed to a budget of €8.6million (US$11.4 million at the time) to cover Habré’s trial. Commitments were made by: Chad (2 billion CFA francs or US$3,743,000), the European Union (€2 million), the Netherlands (€1 million), the African Union (US$1 million), the United States (US$1 million), Belgium (€500,000), Germany (€500,000), France (€300,000), and Luxembourg (€100,000). The Netherlands has also given extra support to the Outreach consortium. In addition, Canada, Switzerland, and the International Committee of the Red Cross have provided technical assistance. A Steering Committee chaired by the African Union and consisting of Senegal and the donors receives and approves periodic reports from the administrator.

23. What will happen to the Extraordinary Chambers after the trial?

The Extraordinary African Chambers will be dissolved once the judgment in the case of Hissène Habré is final.

24. What were the key steps in the campaign to bring Habré to justice?

In January 2000, inspired by the London arrest of the former Chilean dictator Augusto Pinochet, a group of Chadian victims filed a complaint against Habré in Senegal. In February of the same year, a Senegalese judge indicted Habré on charges of torture, crimes against humanity, and “barbaric acts.” However, after political interference by the new Senegalese government of President Abdoulaye Wade, which was criticized by two UN human rights rapporteurs, appellate courts dismissed the case on the ground that Senegalese courts lacked competence to try crimes committed abroad.

Other Habré government victims, including three Belgian citizens of Chadian origin, then filed a case against Habré in Belgium in November 2000. The Belgian authorities investigated the case for four years, then indicted Habré in 2005 and sought his extradition. A Senegalese court ruled that it lacked competence to decide on the extradition request.

Senegal then turned to the African Union, which in July 2006 called on Senegal to prosecute Habré “on behalf of Africa” before its own courts. President Wade accepted the AU mandate and Senegalese law was amended to give the country’s courts explicit universal jurisdiction over international crimes, including torture and crimes against humanity. However, Wade contended that Senegal needed full up-front international funding of €27.4 million (US$36.5 million) before beginning any prosecution. Three years of halting negotiations over the trial budget ensued, until Senegal and donor countries finally agreed in November 2010 to a budget of €8.6 million (US$11.4 million) for Habré’s trial.

Just days before the budget agreement, the Court of Justice of the Economic Community of West African States (ECOWAS) ruled that Habré should be tried before a “special ad hoc procedure of an international character.” In January 2011, the AU responded to the ECOWAS court ruling by proposing a plan for special chambers within the Senegalese justice system with some judges appointed by the AU. Senegal rejected the plan, and in May 2011, withdrew from negotiations with the AU over creation of the tribunal.

In July 2011, Senegal’s foreign minister ruled out holding Habré's trial in Senegal. The Chadian government then announced its support for extraditing Habré to Belgium to face trial.

In 2011 and 2012, Belgium issued three more extradition requests, which were not properly transmitted by the Senegalese authorities to its courts.

On July 20, 2012, in response to a suit brought by Belgium, the International Court of Justice (ICJ), the UN’s highest judicial organ, found that Senegal had failed to meet its obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and ordered Senegal to prosecute Habré “without further delay” if it did not extradite him.

The new Senegalese government of Macky Sall reacted quickly to the ICJ decision, expressing regret that Habré’s trial had not taken place sooner and reaffirming its commitment to begin proceedings quickly. Negotiations resumed between Senegal and the AU, ultimately leading to an agreement to create the Extraordinary African Chambers to conduct proceedings within the Senegalese judicial system. On December 17, the Senegalese National Assembly adopted a law establishing the special chambers. On February 8, 2013, the Extraordinary African Chambers were inaugurated in Dakar.

25. What is the significance of Habré’s prosecution under universal jurisdiction?

As demonstrated by the Habré case, universal jurisdiction is an important safety net to ensure that suspects of atrocities do not enjoy impunity in a third state when they cannot be prosecuted before the courts of the country where the crimes were allegedly committed or before an international court. There has been an increase in the use of universal jurisdiction over the past 20 years, notably but not exclusively by courts in European countries. To strengthen the fight against impunity for the most serious crimes, it is critical for courts on all continents to use universal jurisdiction. The African Union has encouraged its member states to adopt legislation to give their national courts universal jurisdiction over war crimes, crimes against humanity and genocide and has taken steps to initiate a network of national prosecutors working on war crimes cases. Several investigations have been opened in South Africa and Senegal on the basis of universal jurisdiction.

26. How does this trial fit into critiques of the role of international justice in Africa and claims that universal jurisdiction cases target Africans?

Habré’s trial is an important step forward in African states taking responsibility to prosecute serious international crimes. However, the Habré trial does not negate the importance of the ICC and the use of universal jurisdiction by non-African states, including European courts, for crimes committed in Africa. These tools are often the only available hope for justice for African victims.

International justice has been applied unevenly. Powerful countries and their allies have often been able to avoid justice when serious crimes are committed on their territories, notably by failing to ratify the ICC treaty and wielding their political influence at the UN Security Council.

Nongovernmental organizations have actively campaigned for African governments to work to improve international justice and its reach —as opposed to undermining it— to limit impunity for atrocities. 

27. Why isn’t Habré prosecuted in Chad?

Chad never sought Habré’s extradition, and there are serious doubts that Habré could have gotten a fair trial in Chad, where he had been sentenced to death in absentia for his alleged role in a 2008 rebellion. In July 2011, President Wade threatened to expel Habré to Chad but, days later, retracted his decision in the face of an international outcry over the risk that Habré would be mistreated or even killed. 

28. Why couldn’t the International Criminal Court prosecute Habré?

The International Criminal Court only has jurisdiction over crimes committed after July 1, 2002, when its statute entered into effect. The crimes of which Hissène Habré is accused took place between 1982 and 1990.

Posted: January 1, 1970, 12:00 am

(Dakar, September 4, 2015) – The trial of the former Chadian dictator Hissène Habré on charges of crimes against humanity, war crimes, and torture will begin in earnest on September 7, 2015.

Video

Act 1 of the Hissène Habré Trial

The long-awaited trial of Hissène Habré, was adjourned almost as soon as it was opened, as an outburst from the former dictator of Chad caused a scene in the courtroom.

When the landmark trial before the Extraordinary African Chambers in the Senegal court system formally opened on July 20, Habré had to be removed from court after an outburst. Habré’s lawyers then refused to appear and the trial was adjourned, giving new court-appointed lawyers time to study the case.  

“After 25 years of campaigning and 45 days waiting patiently, the survivors will finally get their day in court,” said Reed Brody, counsel at Human Rights Watch who has worked with the victims since 1999. “Hissène Habré may try to create more disturbances, but he does not get a veto on whether he should be tried, or if the victims get justice.”

Habré has refused to communicate with the court-appointed lawyers, and it is expected that he will try to have them taken off the case. The president of the court, Gberdao Gustave Kam, has made clear, however, that in keeping with Senegalese law and international practice, the lawyers are needed to safeguard the rights of the accused and the integrity of the proceedings.

Habre is accused of tens of thousands of political killings as well as systematic torture during his rule, from 1982 to 1990. The trial is the first in the world in which the courts of one country prosecute the former ruler of another for alleged human rights crimes.

Habré is standing trial before the Extraordinary African Chambers in the Senegal court system. The chambers were inaugurated by Senegal and the African Union in February 2013 to prosecute the “person or persons” most responsible for international crimes committed in Chad between 1982 and 1990, the period when Habré ruled Chad. Judge Kam, of Burkina Faso, president of the Trial Chamber, will hear the case along with two senior Senegalese judges.

The trial is expected to last two months, with about 100 witnesses and victims expected to testify.

“If I get a chance to look Hissène Habré in the face, I will do it without fear,” said Fatimé Sakine, 53, a secretary who was subjected to electroshocks and beatings during 15 months in prison from 1984 to 1986 and who is in Dakar for the trial. “I want to know why we were kept rotting, why so many of my friends were tortured and killed.”

“This case is a milestone in the fight to hold the perpetrators of atrocities accountable for their crimes, in Africa and in the world,” Brody said. “It's taken many years, and many twists and turns, but in the end a group of tenacious survivors have shown that it was possible to bring their dictator to justice.” 

Posted: January 1, 1970, 12:00 am

(Dakar, July 17, 2015) – The trial of Chad’s former dictator Hissène Habré is a victory for the victims of his government. The trial began in Senegal on July 20, 2015, almost 25 years after he was overthrown.  

Video

Hissène Habré Finally Facing Justice

The trial of Chad’s former dictator Hissène Habré is a victory for the victims of his government. The trial will begin on July 20, 2015, almost 25 years after he was overthrown.

 
“The opening of Hissène Habré’s trial, 25 years after he fled Chad, is a tribute to the survivors of his brutal rule who never gave up fighting for justice,” said Reed Brody, counsel at Human Rights Watch who has worked with the victims since 1999. “This case warns despots everywhere that if they engage in atrocities they will never be out of the reach of their victims.”

Habré is charged with crimes against humanity, torture, and war crimes. The trial will be the first in the world in which the courts of one country prosecute the former ruler of another for alleged human rights crimes.

 
Habré will stand trial before the Extraordinary African Chambers in the Senegal court system. The chambers were inaugurated by Senegal and the African Union in February 2013 to prosecute the “person or persons” most responsible for international crimes committed in Chad between 1982 and 1990, the period when Habré ruled Chad. Judge Gberdao Gustave Kam of Burkina Faso, president of the Trial Chamber, will hear the case along with two senior Senegalese judges.

The trial is expected to last three months, with about 100 witnesses and victims expected to testify.

Habré, through his lawyers, has said that he does not want to appear in court. Under Senegalese law, however, the court president can require his appearance. 

“I have been waiting for this day since I walked out of prison almost 25 years ago, “ said Souleymane Guengueng, who nearly died of mistreatment and disease in Habré’s prisons, and later founded the Association of Victims of Crimes of the Regime of Hissène Habré (AVCRHH). “I want to look Hissène Habré in the face and ask him why I was kept rotting in jail for three years, why my friends were tortured and killed.”

Habré is accused of thousands of political killings and systematic torture. After he was deposed by the current president, Idriss Déby Itno, in 1990, Habré fled to Senegal. Habré was first arrested in Senegal in February 2000, but Senegal refused to prosecute him then or to extradite him to Belgium in 2005. It was only in 2012, when Macky Sall became president of Senegal and the International Court of Justice, acting on a suit by Belgium, ordered Senegal to prosecute or extradite Habré that progress was made toward the trial with the creation of the Extraordinary African Chambers. The chambers indicted Habré in July 2013 and placed him in pretrial custody. After a 19-month investigation, judges of the chambers found that there was sufficient evidence for Habré to face trial.

“This case is a milestone in the fight to hold the perpetrators of atrocities accountable for their crimes, in Africa and in the world,” Brody said. "It's taken many years, and many twists and turns, but in the end a group of tenacious survivors showed that even a dictator can be brought to justice." 

On March 25, a court in Chad convicted 20 top security agents of Habré’s government on torture and murder charges. 

Posted: January 1, 1970, 12:00 am

Richard Dicker, director of Human Rights Watch's international justice program since it was founded in 2001, has worked at Human Rights Watch since 1991. He started working on international justice issues in 1994 when Human Rights Watch attempted to bring a case before the International Court of Justice charging the government of Iraq with genocide against the Kurds. Dicker later led the Human Rights Watch multi-year campaign to establish the International Criminal Court (ICC). He continues to be closely involved on issues that are important at the ICC. He has also spent the past few years leading advocacy efforts urging the creation of effective accountability mechanisms. He monitored the Slobodan Milosevic trial in The Hague and made many trips to Iraq before and at the start of Saddam Hussein's trial. A former civil rights attorney in New York, Dicker graduated from New York University Law School and received his LLM from Columbia University.

Posted: January 1, 1970, 12:00 am
Posted: January 1, 1970, 12:00 am

Supporters of George Weah attend a meeting during their party's presidential campaign rally at Samuel Kanyon Doe Sports Complex in Monrovia, Liberia December 23, 2017.

© 2017 Reuters
 

(New York) – Liberian President George Weah should show leadership at the United Nations (UN) General Assembly by announcing his government’s endorsement of justice and reparations for victims of grave crimes during the country’s civil wars, 80 nongovernmental organizations said in a letter to the president released today.

Liberian, regional, and international groups sent the letter ahead of President Weah’s expected presentation on September 26, 2018 during the high-level segment of the General Assembly in New York. Liberian activists have scheduled a news conference regarding the letter in Liberia’s capital, Monrovia, on September 25 at 11:30 a.m. at the iCampus location.

“When President Weah takes the international stage at UN headquarters, he should support justice for past crimes in Liberia,” said Hassan Bility, executive director of the Monrovia-based Global Justice and Research Project.

Liberia’s civil wars, which spanned 14 years and ended in 2003, were characterized by widespread atrocities by all sides, including summary executions and large-scale massacres. At Carter Camp and St. Peter’s Lutheran Church, hundreds of civilians were killed in a single night.

Abuses also included widespread systematic rape, mutilation and torture, and forced conscription and use of child combatants. 

Attacks against aid workers and foreigners working in Liberia, including the killing of five American nuns, brought international attention to Liberia’s war.  

“Liberia has not initiated a single prosecution for the widespread crimes committed against civilians during its wars,” said Nushin Sarkarati, senior staff attorney at the Center for Justice and Accountability.

The Truth and Reconciliation Commission for Liberia in 2009 recommended creating a war crimes court to investigate and try people responsible for grave violations of international law. But the Liberian government has never moved ahead with this recommendation.

“The few cases addressing civil war-era atrocities have occurred outside Liberia, in Europe and the United States,” said Alain Werner, director of Civitas Maxima.

The UN Human Rights Committee on July 26 said that the Liberian government should establish a process to bring about accountability for past war crimes. The committee expressed “concern that none of the alleged perpetrators of gross human rights violations and war crimes mentioned in the TRC [Truth and Reconciliation Commission] report has been brought to justice.” 

“President Weah should take seriously UN concerns that no perpetrators of war crimes have been brought to justice,” said Adama Dempster, secretary general of the Civil Society Human Rights Advocacy Platform of Liberia.

Liberian officials pledged to the Human Rights Committee in July that it would soon issue a public statement about carrying out the Truth and Reconciliation Commission’s recommendations. The government has yet to do so.

“The UN General Assembly is an ideal moment for the Liberian government to deliver on its pledge to speak up on implementing the Truth and Reconciliation Commission’s recommendations,” said Elise Keppler, associate international justice director at Human Rights Watch.

Posted: January 1, 1970, 12:00 am
September 20, 2018
 
His Excellency George Weah
President of the Republic of Liberia
 
Re: Endorsing Accountability for Past Crimes at the UN General Assembly
 
Dear President Weah:
 
In anticipation of your participation in September’s high-level segment of the United Nations (UN) General Assembly, we urge you to show leadership at this global platform by announcing that the Liberian government will develop, with support from the international community, a roadmap to ensure justice and reparations for victims of the gravest crimes committed during Liberia’s civil wars.
 
The UN Human Rights Committee on July 26, 2018, called upon the Liberian government to establish a process of accountability for past war crimes following its first-ever review of the human rights situation in Liberia. The committee expressed “concern that none of the alleged perpetrators of gross human rights violations and war crimes mentioned in the TRC [Truth and Reconciliation Commission] report, has been brought to justice.”
 
In its final report issued July 1, 2009, Liberia’s Truth and Reconciliation Commission called for the creation of a war crimes court in the country, and Liberia is obligated under international law to try grave crimes committed. Nonetheless, Liberia has yet to hold a single person to account for past abuses. According to the committee, “such a situation fosters a climate of impunity and fails to achieve transitional justice.” The only prosecutions of past abuses are taking place in the United States and Europe.
 
Liberia’s civil wars were characterized by widespread atrocities, including summary executions and large-scale massacres, including at Carter Camp and St. Peter’s Lutheran Church where hundreds of civilians were killed in a single night; widespread as well as systematic rape; mutilation and torture; and forced conscription and use of child combatants. Attacks against humanitarian aid centers and murder of international aid workers, such as the death of five American nuns, brought international attention to Liberia’s war.
 
The Human Rights Committee identified measures to provide justice, truth, and reparations for civil war victims as a priority, and Liberia will need to report back on these issues by 2020. Meanwhile, calls for justice by Liberian civil society groups and ordinary citizens, in addition to international organizations, continue to grow.
 
Several of our representatives attended Liberia’s appearance before the Human Rights Committee and we welcome the pledge by the government delegation during the session that the government would soon issue a public statement on implementing the Truth and Reconciliation Commission’s recommendations.
 
By seizing the General Assembly high-level segment to present plans for Liberia to bring justice for the serious abuses committed during the civil wars, you would stand with victims and take an important step to address impunity—which has undermined development and reconciliation in Liberia for far too long—and build sustainable peace for Liberians.
 
We thank you and stand ready to support you in this important effort.
 
Sincerely,
 
Liberian Organizations:
1. Accountability Lab Liberia
2. African Advocacy Network
3. African Career, Education, and Resource, Inc. (ACER)
4. Association of Female Lawyers of Liberia
5. Association of Liberian Journalists in America
6. Better Future Foundation
7. Campaigners for Change
8. Catholic Justice and Peace Commission
9. Center for Social Justice and Human Development (CSJHDEV)
10. Coalition for Justice in Liberia
11. Dehkontee Artists Theatre, Inc- DATI
12. Economic Freedom Fighters of Liberia
13. ECOWAS Women in Liberia
14. The Emancipation Movement of Liberia Inc. (EMOL)
15. Flomo Theatre Production Inc.
16. Foundation for Human Rights and Democracy
17. Foundation for International Dignity
18. Friends of the Congo
19. Fubbi Foundation for Development and Sustainability
20. Global Justice and Research Project
21. Goba Foundation
22. Holistic Education Advocating Leadership (HEAL)
23. Human Rights Protection Forum
24. Human Rights Monitor Liberia United Methodist Church
25. Independent Human Rights Investigators
26. International Disable Women (IDS)
27. International Justice Group
28. IsraAID – Liberia
29. Liberia – America Friendship Organization
30. Liberia Human Rights Campaign
31. Liberian Diaspora Initiatives (LIDIN)
32. Liberian Human Rights and Welfare Organization
33. Liberia Judicial and Prisons Monitors
34. Liberian Massacre Survivors Association
35. Liberians United for Justice and Accountability
36. Liberia Working Group
37. Love 113
38. The Movement to Establish Peace, Justice and Unity in Liberia (MEPJUL)
39. National Civil Society Council of Liberia
40. National Economic and Social Development Action Committee
41. National Health Workers Union of Liberia
42. National Human Rights Monitor
43. National Street Children Activists Network
44. National Student Movement for the Establishment of Economic & War Crimes Court in Liberia
45. National Teachers’ Association of Liberia
46. Operation We Care for Liberia
47. Patriot Crusaders
48. Prison Fellowship of Liberia
49. Research for Documentation on Human Rights
50. Regional Watch for Human Rights
51. Rights and Rice Foundation
52. River Gee County Association in the Americas
53. Rural Human Rights Activists Programme
54. Student Unification Party
55. Tambasons Global Human Services Inc.
56. Transitional Justice Working Group
57. United Liberians Association of Alberta
58. Universal Human Rights
59. Voice of the Voiceless
60. Women Empowerment Foundation of Liberia
61. Women of Liberia Peacebuilding Network
62. Women Solidarity
 
African civil society organizations outside Liberia and international civil society organizations:
63. The Advocates for Human Rights
64. Africa Legal Aid
65. Amnesty International
66. The Ghana Center for Democratic Development
67. Centre for Accountability and Rule of Law – Sierra Leone
68. Center for Justice and Accountability
69. Centre for Human Rights and Rehabilitation (Malawi)
70. Children’s Education Society (Tanzania)
71. Civitas Maxima
72. Human Rights Center, University of California, Berkeley – School of Law
73. Human Rights Watch
74. International Federation of Human Rights
75. Kenyans for Peace with Truth and Justice
76. National Centre For Human Rights and Development (Sierra Leone)
77. No Peace Without Justice
78. Parliamentarians for Global Action
79. Southern African Centre for the Constructive Resolution of Disputes (Zambia)
80. World Federalist Movement – Institute for Global Policy
Posted: January 1, 1970, 12:00 am

As we commemorate the 70th anniversary of the Genocide Convention, I wish to address the crucial role of the International Criminal Court in realizing its ideals.

This year also marks the twentieth anniversary of the adoption of the ICC’s founding treaty in Rome. At the time, some questioned the need for the court—that perhaps the horrors of the 20th century that spurred the adoption of the Genocide Convention were behind us.  Instead, it’s clear that the ICC is needed now more than ever.  Last month’s report of the fact-finding mission on Myanmar, which flagged possible genocide of the Rohingya, underscores this point.

It was the singular determination of a group of like-minded states that resulted in the creation of the ICC. But as long as the court does its job, it will stir fierce opposition. This week’s hyperbolic speech from the US government in anticipation of an ICC investigation in Afghanistan is a stark reminder of what’s at stake.

While the global demand for accountability has increased, the will to deliver it has weakened. The veto by permanent members of the UN Security Council of a much-needed resolution referring Syria to the ICC is the best example of this disturbing trend.

There are glimmers of hope. In the wake of the Security Council’s failure in Syria, the General Assembly established an international mechanism to preserve evidence of crimes. And last week, a panel of ICC judges confirmed the court’s jurisdiction over the mass deportation of Rohingya from Myanmar to Bangladesh as a crime against humanity.

Still, the climate for a Security Council referral of Myanmar – critical to address the full scale of criminality - remains chilly. In the meantime, the Human Rights Council is well-positioned to create a Syria-type mechanism for Myanmar to preserve a path to justice.

ICC member countries – and non-members – should increase efforts to ensure justice for genocide and other crimes. The court has shortcomings, but greater resources would help it handle its increased caseload and engage better with victims. And states should be prepared to defend the court’s mandate and independence in the face of politicized opposition to its work. Victims of the worst crimes, including genocide, deserve nothing less. 

Posted: January 1, 1970, 12:00 am

Federica Mogherini

High Representative of the European Union for Foreign Affairs and Security

Policy/Vice-President of the European Commission

 

September 10, 2018

 

Dear High Representative/Vice-President Mogherini,

On behalf of our organizations, we are writing to call on you to swiftly establish an EU Special Representative for International Humanitarian Law and International Justice.

EU leadership has been essential in the fight against impunity for international crimes and the promotion of respect for the laws of war. We welcome the personal leadership you have shown. As just one measure of this personal leadership, we were very appreciative of your February 2018 video statement in the context of the Coalition for the International Criminal Court’s commemorations of the twentieth anniversary of the 1998 adoption of the Rome Statute. In that statement, you indicated that “you can count on the EU’s constant support for the Court. We will continue to be the point of reference for all those who work for justice and peace all around the world. The path that started in Rome 20 years ago has only just begun.”

We could not agree more that our collective efforts to bring redress to victims of international crimes and to prevent their occurrence are far from completed. To the contrary, now more than ever, there is a need for increased, principled leadership by the EU. As the July Council Conclusions on the International Criminal Court (ICC) indicated, “the rules-based international order is facing increased pressure,” making “the strengthening of its criminal justice system … more important than ever.” The same is clearly true when it comes to reinforcing international humanitarian law. There is a very real risk that without stepped-up efforts impunity will reassert itself as the new norm, contributing to cycles of violence and new generations of victims, and rolling back the gains represented by the adoption of the Rome Statute.

A Special Representative for International Humanitarian Law and International Justice will provide the EU with significantly enhanced capacity to play this much-needed leadership role. In the attached concept note, we set out in more detail how a Special Representative would provide increased visibility and influence; consistency in the implementation of existing EU policies; expertise; and innovative approaches to navigate what is an increasingly complex landscape, in the face of a proliferation of crises and blockages to justice at the national and international levels. A Special Representative could ensure that the EU’s voice is increasingly brought to bear on key policy debates, while also acting nimbly to marshal resources to develop responses in specific situations.   

The need for a dedicated high-level expert has been recognized by the European Parliament, which first called for the establishment of this position in 2011. In a June 2018 letter, 34 parliamentarians reiterated this call. In his statement marking the twentieth anniversary of the adoption of the Rome Statute, Pier Antonio Panzeri, the chair of the parliament’s Subcommittee on Human Rights, also reiterated this call.

We understand that several EU member states’ foreign ministers also actively support the creation of a dedicated Special Representative for International Humanitarian Law and International Justice and indeed all EU foreign ministers in their July conclusions encouraged you “to present proposals for possible further steps on how the EU could further enhance its capabilities and structures to strengthen the visibility and coherence of EU action on international criminal justice and international humanitarian law.”  

We appreciate that you may have concerns regarding ensuring coordination between this Special Representative and other existing mandates, including that of the Special Representative on Human Rights, as well as the resources required to support a new position. But we strongly believe that the expertise that would be added in the field of international law and international justice would benefit the work of all Special Representative mandate holders, the European External Action Service (EEAS), and the EU’s foreign policy actions and would greatly outweigh any such concerns. 

When it comes to coordination, this is actually one of the significant advantages of establishing this position. A Special Representative would ensure dedicated attention to international humanitarian law and international justice issues, in dialogue and coordinated action with other Special Representatives, the ICC focal point within the EEAS, and member states. This level of consistent coordination—given the sheer number of situations in which these issues are relevant today—is not possible within existing resources, with the result that implementation of EU policies is not as consistent or robust. A Special Representative would also increase coordination with third-party governments, UN bodies, civil society, and other partners. When it comes to resources, the investment required would be repaid through more effective EU action in what are highly significant policy areas. The Common Decision on the ICC remains one of the few legally binding decisions in foreign policy.

That the twentieth anniversary of the ICC treaty is taking place at a time when the very crimes it seeks to prevent through accountability are occurring at an alarming pace brings into sharp focus the need for increased efforts to realize the promise of Rome. We urge you to seize on this momentum and establish a Special Representative in order to concretely advance the EU’s efforts to bring justice and prevent violations of international humanitarian law. Representatives of our organizations would welcome the opportunity to meet with you at your earliest convenience to discuss this matter in further detail.

 

Sincerely,

 

William R. Pace

Convenor, Coalition for the International Criminal Court (CICC)

Executive Director, World Federalist Movement-Institute for Global Policy (WFM-IGP)

 

Antoine Madelin

International Advocacy Director, Fédération internationale des ligues des droits de l’Homme

 

Lotte Leicht

EU Advocacy Director, Human Rights Watch 

 

Alison Smith

Director of International Criminal Justice Program, No Peace Without Justice

 

James Goldston

Executive Director, Open Society Justice Initiative

 

Melinda Reed

Executive Director, Women’s Initiatives for Gender Justice

Posted: January 1, 1970, 12:00 am
Video

ICC: Victims of Atrocities Deserve Justice

Member countries of the International Criminal Court (ICC) should increase their support for the court in the face of increasing challenges to delivering justice. The court’s founding treaty, the Rome Statute, was adopted 20 years ago on July 17, 1998.

Yesterday, US national security advisor John Bolton denounced the International Criminal Court (ICC), announcing in a speech that the Trump administration would no longer cooperate with the court and rattling off a number of threats should ICC investigations reach US, Israeli or other allied country citizens.

Of Bolton’s bluster, the most outlandish was a threat to prosecute in US courts ICC judges and prosecutors who bring legal action against Americans.

Bolton was the public face of a concerted US campaign under the George W. Bush administration to undermine the ICC, a court set up in 2002 to try the worst international crimes. These efforts did little more than erode US credibility on international justice and gradually gave way to a more supportive US posture. In 2005, the US did not veto a UN Security Council request to the ICC prosecutor to investigate crimes in Darfur, Sudan.

Video

ICC Turns 20: Reflections from Law Students Around the World

Supporters of international justice will mark the 20th anniversary of the Rome Statute, the founding treaty of the International Criminal Court (ICC), on July 17, 2018. In this video, students from universities around the world discuss the court’s importance.

So what prompted the high-profile attack on the ICC, which scraped away the veneer on the Trump administration’s stated commitments to accountability for grave crimes in Syria and Myanmar? Bolton said the Bush administration’s “worst predictions” were confirmed by the ICC prosecutor’s request last November to open an investigation in Afghanistan. Afghanistan is an ICC member, which means the court has jurisdiction over alleged war crimes committed there, which could include those committed by US military personnel and Central Intelligence Agency officers. The ICC prosecutor is also considering launching an investigation into the Palestine situation; Palestine is also an ICC member. Bolton used the speech to announce a decision to close down the PLO representative office in Washington over its support for an ICC probe into serious crimes committed in Palestine.

Bolton’s remarks painted the ICC as lacking checks and balances, but there are significant constraints on the ICC’s ability to act. Bolton was dismissive of what is, in fact, a key limit: the ICC is a court of last resort. Countries can avoid ICC scrutiny by conducting genuine investigations and bringing appropriate prosecutions as are already required by international law. This is something that the US has not done in Afghanistan nor Israel with respect to Gaza and the West Bank.

ICC officials and member countries are unlikely to be cowed by Bolton’s disdain for the court. But his speech was a stark affront to victims of atrocity crimes seeking justice. The ICC has its shortcomings, but it serves as a powerful signal to perpetrators and victims alike that justice for the worst crimes is possible. ICC member countries pushed back on US threats during the Bush administration. They should do the same this time and make clear that they will ensure the ICC remains the vital avenue for justice the world desperately needs.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Activists hold an event in memory of people who were disappeared during Nepal’s decade-long civil war, Kathmandu, August 30, 2017.

© 2017 Reuters

It has been 12 years since the Maoist conflict ended in Nepal. Thousands became victims of enforced disappearances, torture, sexual violence and unlawful killings between 1996 and 2006. And yet there has been no justice in the form of prosecutions for these crimes.

Nepal’s government—the first elected under its new 2015 constitution—has indicated a key priority is to amend its laws to ensure there can finally be genuine accountability for the serious crimes committed by individuals on all sides during the war. After the laws are passed, courts around the world may need to determine if the Nepali justice system can now investigate and prosecute those most responsible for war crimes. If they decide it cannot, national prosecutors elsewhere, such as in the UK, Australia or the US, may decide to prosecute war crimes cases from Nepal.

Earlier this year, I met with Attorney General Agni Kharel together with other organisations that work on rights and justice to discuss the draft legal changes. Among other issues, we discussed if those accused of the most serious crimes during the fighting could face justice in other countries, especially if Nepal does not show itself capable of prosecuting them at home.

The key principle for those concerned with justice in Nepal is “universal jurisdiction.” This means that some crimes—such as torture and war crimes—are considered so serious that many countries ensure their own police and prosecutors are able to investigate and prosecute in their courts the people responsible, regardless of where and when they have committed these crimes. The impact of this principle on Nepalis was made clear when Col Kumar Lama was arrested in the UK in 2013 and tried in a British court under charges of torture allegedly committed during the Maoist conflict in 2005. Lama was effectively kept under house arrest in the UK until after his trial, which was marred by a lack of interpreters.The Crown Prosecution Service was unable to provide evidence beyond a shadow of a doubt, and Lama was acquitted in 2016.

Problems with the Lama case notwithstanding, the UK and some other countries will continue to bring universal jurisdiction cases using police and prosecutors dedicated to investigating and prosecuting such crimes. Improved technology means it is now easier for prosecutors around the world to obtain relevant evidence, and to be aware when potential suspects are in their territory. The likelihood of Nepalis suspected of torture or war crimes facing arrest in other countries may grow.

But justice is often best done as close to the scene of the crime as possible.In principle, crimes committed in Nepal should be tried there. So, if a suspect is arrested in another country under universal jurisdiction, the courts there will normally consider if the country where the crime took place is willing and able to prosecute those responsible.

With that in mind, Human Rights Watch has set out six key tests to assess Nepal’s proposed laws on justice. If Nepal can meet those benchmarks, it is unlikely other countries will need to pursue cases against Nepalis for crimes committed in Nepal—the country’s justice system will be able to do so.

The benchmarks include whether Nepal has incorporated international crimes in its law and joined the International Criminal Court, and whether those responsible for investigating, prosecuting and trying the crimes are able to do so impartially and independently.

The justice system should ensure fair trials, and the protection of witnesses. Another key test is whether Nepal has included the principle of command responsibility in its law, meaning the most senior military commanders and civilian officials can be prosecuted for failing to prevent or prosecute crimes committed by their subordinates.

Unfortunately, our assessment is that the draft laws, although a helpful start, do not yet meet any of the benchmarks. We hope the attorney general and his team will revise the drafts to make them effective, and in particular, that the amendments, and their implementation, will meet the sixth and final test: Whether Nepal actually brings to trial those most responsible for the worst crimes during the conflict.

If Nepal continues to fail to hold those responsible to account, prosecutors around the world will be ready to step in.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

In March 2017, the United Nations Human Rights Council established the Independent International Fact-Finding Mission on Myanmar to “establish the facts and circumstances of the alleged recent human rights violations by military and security forces, and abuses, in Myanmar … with a view to ensuring full accountability for perpetrators and justice for victims.” The three members appointed to the Fact-Finding Mission were Marzuki Darusman (chair), Radhika Coomaraswamy, and Christopher Dominic Sidoti.

The Fact-Finding Mission’s mandate was extended after Myanmar security forces carried out a campaign of ethnic cleansing, including killings, rape, and mass arson, against the Rohingya population in northern Rakhine State following attacks by the Arakan Rohingya Salvation Army (ARSA) on August 25, 2017. Human Rights Watch found that security force abuses amounted to crimes against humanity.

More than 720,000 Rohingya fled to Bangladesh, where nearly one million refugees now live in precarious, crowded, flood-prone camps. Agreements between UN agencies and Myanmar to facilitate the return of Rohingya refugees would require conditions conducive to voluntary, safe, dignified, and sustainable returns, and protections to ensure Rohingya’s basic rights – criteria unlikely to be met in the foreseeable future. Human Rights Watch documented the torture in Myanmar of several Rohingya who had returned.

The Myanmar government did not cooperate with the Fact-Finding Mission and denied access to its experts and its staff. It has also banned Yanghee Lee, the UN special rapporteur on the situation of human rights in Myanmar.

The Fact-Finding Mission released its 20-page report on August 27, 2018. While it focused primarily on Rakhine State, the Fact-Finding Mission also documented serious violations of international law primarily by government security forces, but also by ethnic armed groups, in Shan and Kachin States. The Myanmar government summarily rejected the Fact-Finding Mission’s report.

The mission’s report with a 400+ page appendix is expected to be presented to the Human Rights Council on September 18.

What were the Fact-Finding Mission’s findings?

What is the basis for the Fact-Finding Mission’s conclusions?

What are the Fact-Finding Mission’s main recommendations to bring perpetrators to justice?

Why can’t perpetrators be held accountable in Myanmar?

What is the UN Human Rights Council’s role in carrying out the Fact-Finding Mission’s recommendations?

Why is an International, Independent, Impartial Mechanism so important now?

Can the Human Rights Council create an International, Independent, Impartial Mechanism?

Is a UN Security Council referral of Myanmar to the International Criminal Court a realistic possibility?

Isn’t the ICC already looking at crimes in Myanmar?


What were the Fact-Finding Mission’s findings?

The Fact-Finding Mission found that Myanmar security forces committed serious crimes under international law “that warrant criminal investigation and prosecution,” namely crimes against humanity, war crimes, and genocide.

Crimes against humanity by Myanmar security forces, committed as part of a widespread or systematic attack on a civilian population, include murder; imprisonment; enforced disappearance; torture; rape, sexual slavery, and other forms of sexual violence; persecution; and enslavement. Elements of the crimes of extermination and deportation were also present. The mission concluded that the systematic oppression and discrimination against the Rohingya might also amount to the crime of apartheid.

War crimes are serious violations of international humanitarian law committed by individuals with criminal intent. War crimes committed by the military in Rakhine State since at least August 2017 include murder; torture; cruel treatment; outrages upon personal dignity; attacking civilians; displacing civilians; pillaging; attacking protected objects; taking hostages; sentencing or execution without due process; and rape, sexual slavery, and sexual violence.

Genocide refers to certain criminal acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.

The mission found that Myanmar security forces carried out genocidal acts against the Rohingya: killing; serious bodily or mental harm; conditions of life calculated to bring about the group’s physical destruction; and measures to prevent births.

The mission concluded that there was “sufficient information to warrant the investigation and prosecution of senior [military] officials” to determine liability for genocide. Six senior commanders were named for investigation and prosecution, including the military commander-in-chief, Sr. Gen. Min Aung Hlaing.

The mission highlighted relevant factors to show “genocidal intent,” a necessary element of genocide, including the broader oppressive context and hate rhetoric; statements of individual commanders and perpetrators; exclusionary policies, including to alter the makeup of Rakhine State; a level of organization suggesting a plan for destruction; and the extreme scale and brutality of the violence.

The mission reported that certain acts committed by ARSA in Rakhine State “may also constitute war crimes.” It also found that the Myanmar military committed crimes against humanity and war crimes in Shan and Kachin States since 2011, while ethnic armed groups in those states committed war crimes.
 

What is the basis for the Fact-Finding Mission’s conclusions?

The Fact-Finding Mission stated that it only relied on verified and corroborated information for its findings. It conducted 875 in-depth interviews with victims and eyewitnesses. It used satellite imagery and authenticated documents, photographs, and video. Since the mission did not have access to Myanmar, despite repeated requests to the government, its members traveled to Bangladesh, Indonesia, Malaysia, Thailand, and the United Kingdom to collect information.
 

What are the Fact-Finding Mission’s main recommendations to bring perpetrators to justice?

To address the “gross human rights violations and abuses committed in Kachin, Rakhine and Shan States,” which are “shocking for their horrifying nature and ubiquity,” the mission urged the UN Security Council to refer the situation to the International Criminal Court (ICC) or create an ad hoc international criminal tribunal similar to those established for the former Yugoslavia and Rwanda. Since Myanmar is not a party to the Rome Statute, the treaty that created the ICC, a Security Council referral is the only way for the entire situation in Myanmar to come under ICC jurisdiction.

The mission also urged the UN General Assembly or the Human Rights Council to create “an independent, impartial mechanism to collect, consolidate, preserve and analyze evidence” of serious violations of international human rights and humanitarian law, and “to prepare files to facilitate and expedite fair and independent criminal proceedings in national, regional or international courts or tribunals.”
 

Why can’t perpetrators be held accountable in Myanmar?

The Fact-Finding Mission concluded that the Myanmar government has demonstrated that it is “unable and unwilling” to investigate and prosecute crimes under international law. This is an important conclusion since the ICC, as a court of last resort, can only step in when justice in national courts is not possible. The mission found that Myanmar’s political and legal system effectively placed the military above the law. Myanmar’s military courts have long failed to deal with massive human rights violations committed by the military, while the civilian criminal justice system lacks independence and the capacity to respect fair trial standards.

The mission noted that it examined eight ad hoc inquiry commissions and boards created to address abuses in Rakhine State since 2012. It concluded that “none meets the standard of an impartial, independent, effective and thorough human rights investigation.” It said that the government’s new Commission of Enquiry with international members “will not and cannot provide a real avenue for accountability.” In fact, in August, the commission’s chair, Rosario Manalo, told the media that “there will be no blaming of anybody, no finger pointing at anybody, because we don’t achieve anything by that procedure.”
 

What is the UN Human Rights Council’s role in carrying out the Fact-Finding Mission’s recommendations?

The Human Rights Council, as the UN’s primary human rights body, has the first responsibility to substantively address the concerns raised in the Fact-Finding Mission report and act on the recommendations of the body it created in its upcoming resolution on Myanmar. This should include pressing the Security Council to fulfill its responsibility to refer the entire situation in Myanmar to the ICC and establishing an International, Independent, Impartial Mechanism as the mission called for.
 

Why is an International, Independent, Impartial Mechanism so important now?

An International, Independent, Impartial Mechanism, modeled on a similar mechanism established for Syria by the UN General Assembly, is urgently needed to collect, consolidate, preserve, and analyze evidence of possible crimes to support criminal proceedings in the future. The Myanmar mechanism should have a similar title to convey the seriousness of the crimes, the standard for gathering evidence, the scale of the task, and the need for commensurate staffing and resources.

The urgency reflects the realities on the ground. Since the military operations began in August 2017, 362 predominantly Rohingya villages in northern Rakhine State were completely or partially destroyed by arson. Human Rights Watch has documented the complete or partial destruction since November 2017 of at least 60 villages formerly occupied by Rohingya, destroying evidence of crimes.

And while thousands of Rohingya victims and witnesses are in Myanmar and Bangladesh, as more time passes, memories will fade and key witnesses may no longer be available or easily located. These challenges highlight the urgency of concrete action to support eventual criminal investigations and prosecutions before the ICC or other competent courts.

An International, Independent, Impartial Mechanism would also play a critical role in centralizing the documentation and fact-finding efforts that are ongoing across the country by nongovernmental organizations, journalists, and others, and ensure that evidence is collected according to international standards and best practices. This can help minimize risks and further trauma to victims and witnesses and safeguard the confidentiality and integrity of potential evidence shared with investigators.

Analysis of evidence and preparation of case files would also send a message to perpetrators that there could be justice for atrocity crimes and act as a deterrent to further abuses. Evidence gathered could also be used by other countries to prosecute cases under the principle of universal jurisdiction.

The mechanism should have the expertise and budget to effectively document violations and abuses. At a minimum, the mechanism should have staff with expertise in the following areas: building case files and indictments for serious international crimes, including command responsibility; investigating sexual and gender-based violence, and interviewing children; analyzing military operations, weapons, and command structure; forensics; Myanmar criminal law; and investigating serious international crimes. Sufficient funds should be allocated for translation and interpretation.

Once operational, the mechanism should develop protocols for managing evidence, including preserving the chain of custody, managing information and security, and protecting witnesses and victims, among other areas.
 

Can the Human Rights Council create an International, Independent, Impartial Mechanism?

The Human Rights Council regularly creates mechanisms in response to reports of international crimes to carry out a variety of functions, including gathering and preserving evidence and identifying perpetrators. For example, the Commission on Human Rights in South Sudan has the mandate “to determine and report the facts and circumstances of, to collect and preserve evidence of, and to clarify responsibility for alleged gross violations and abuses of human rights and related crimes, including sexual and gender-based violence and ethnic violence, with a view to ending impunity and providing accountability.” Human Rights Council resolutions on North Korea have set up a field-based structure in Seoul and strengthened its monitoring and documentation capacity by “establishing a central information and evidence repository,” and appointing “experts in legal accountability [to] assess all information and testimonies” with a view to advancing accountability.

The UN General Assembly, in its upcoming resolution on Myanmar, should welcome and endorse the creation of this mechanism, and strengthen it as needed. The mechanism should report both to the Human Rights Council and the General Assembly.
 

Is a UN Security Council referral of Myanmar to the International Criminal Court a realistic possibility?

A Security Council referral to the ICC would underline the international community’s responsibility to help bring those responsible for grave crimes in Myanmar to account. However, China and Russia have previously blocked an ICC referral for grave crimes in Syria, and Russia has made it clear that it will continue to block referrals in the foreseeable future.

Security Council members Sweden and the Netherlands have been vocal in calling for a referral of the situation in Myanmar to the ICC. Voices outside of the council are also making themselves heard. For example, a group of more than 130 sitting members of parliament from Indonesia, Malaysia, Timor-Leste, Singapore, and the Philippines have called for an ICC referral. Malaysia’s foreign minister emphasized the Security Council’s responsibility to step in to address the crimes in Myanmar if the government “proves to be unwilling or incapable of ensuring justice.”

Current political dynamics in the Security Council add to the obstacles to achieving an ICC referral in the near term. To date, the UK, the “penholder” on Myanmar resolutions at the Security Council, has not put forward a draft resolution on any element of the country situation, even on issues like refugee return, on which council members are largely in agreement.

To change the political climate in the Security Council so that a resolution can be adopted, UN member countries, especially those on the council, will need to persistently make accountability in Myanmar a priority. That approach would help raise the political cost on China, Russia, and other countries opposed to an ICC referral.

A concrete step in this direction would be for the Security Council to invite the Fact-Finding Mission to brief members on its findings and recommendations. Any council member could also formally circulate the Fact-Finding Mission’s report as a Security Council document, which could further pressure the council to address its findings.
 

Isn’t the ICC already looking at crimes in Myanmar?

On September 6, a panel of ICC judges confirmed that the court could assert jurisdiction over Myanmar officials who forced Rohingya to flee to Bangladesh as the crime against humanity of deportation. This is because an element of the crime occurred in Bangladesh, which, unlike Myanmar, is an ICC member. The judges also said that the court could have jurisdiction over the crime against humanity of persecution if the prosecutor shows that the deportation of the Rohingya was based on discriminatory grounds, such as ethnicity or religion. Additionally, Myanmar’s efforts to prevent the return of the Rohingya could be examined by the court as “other inhumane acts” causing “great suffering or serious injury.” Myanmar has rejected the court’s ruling.

However, there is not yet an ICC investigation, and the judges’ ruling should not be used as an excuse to stall action at either the Human Rights Council or the Security Council. The crimes linked to the mass flight of several hundred thousand Rohingya into Bangladesh represent only a fraction of the crimes committed during the Myanmar security forces’ ethnic cleansing campaign. A Security Council referral is needed for an ICC investigation to cover the full scope of criminality in Myanmar, including the war crimes and crimes against humanity in Kachin and Shan States. Likewise, the need remains for the Human Rights Council to create a mechanism to urgently collect evidence of crimes outside of any limited ICC investigation.

Posted: January 1, 1970, 12:00 am

Rohingya refugees line up at an aid relief distribution center at the Balukhali refugee camp near Cox’s Bazar, Bangladesh, August 12, 2018.

© 2018 Ed Jones/AFP/Getty Images

(Geneva) – The United Nations Human Rights Council should act to preserve evidence and create a path to justice for victims of atrocities in Myanmar, Human Rights Watch said today in issuing a question and answer document. The Human Rights Council is expected to adopt a resolution on the human rights situation in Myanmar as part of its 39th session, which starts on September 10, 2018.

The session follows the report in August by the UN Fact-Finding Mission on Myanmar, which detailed crimes against humanity, war crimes, and genocide by Myanmar’s security forces in Rakhine State. The council created the panel in March 2017 to document violations by Myanmar’s security forces and non-state armed groups “with a view to ensuring full accountability for perpetrators and justice for victims.” The report also examined abuses in Shan and Kachin States.

“The Human Rights Council should demonstrate its resolve to bring Myanmar’s generals to justice for their heinous crimes,” said John Fisher, Geneva director. “The council should underline the UN Security Council’s responsibility to refer Myanmar to the International Criminal Court and create an evidence-gathering body to prepare case files for future trials.”

The Fact-Finding Mission recommended that either the Human Rights Council or the UN General Assembly should create as a matter of urgency an international, independent, impartial mechanism, similar to the one on Syria. As an appendix to its recent report, the Fact-Finding Mission will provide a detailed compilation of its findings and conclusions to the Human Rights Council on September 18.

The question and answer document analyzes the Fact-Finding Mission’s report, the role of the Human Rights Council in addressing its findings, the need for a Security Council referral of Myanmar to the International Criminal Court (ICC), and the recent decision by ICC judges confirming the court’s jurisdiction for the crime of deportation.

Posted: January 1, 1970, 12:00 am

The Peace Palace in The Hague (Netherlands), seat of the International Court of Justice.

© Jeroen Bouman, courtesy of the ICJ

This week, the International Court of Justice (ICJ), the United Nations’ Court, held hearings on a case Iran has brought against the United States. Iran is arguing that because the US withdrew from the nuclear agreement and is unilaterally imposing economic sanctions, the US has violated the terms of the 1955 Treaty of Amity, Economic Relations, and Consular Rights, known as the “Treaty of Amity,” between the two countries.

The irony is, while Iran accuses the US of breaking the treaty, Iranian courts continue to convict people of “cooperating with a hostile country” – despite clear instructions to the contrary from the Supreme Court.

Millions of Iranians whose livelihood have been hit hard by the US withdrawal and subsequent imposition of sanctions are following the ICJ proceedings. But for families of several Iranian dual nationals, invoking the Treaty of Amity is also a bitter reminder of continued detention of their loved ones. Iranian counsel to imprisoned Iranian-US citizens Baquer and Siamak Namazi have now lodged an appeal with the Iranian Supreme Court in response to Iran’s case at the ICJ, said Jared Genser, their lawyer, in a statement on August 28.

In the past several years, Iran has charged several individuals with “cooperating with the hostile country of the United States,” including Namazis, two Iranian-Americans who are serving 10-year prison sentences.

This isn’t the first time the Supreme Court has been asked to weigh in on this issue. In 2014, in accepting the appeal of Omid Kokabi, a young physicist charged with cooperating with the US as a hostile government, the court explicitly stated that “no government [including the United States] is in a state of hostility with Iran” and that “political differences” are not sufficient to classify a state as “hostile.” Despite this clear guidance, the revolutionary courts have blatantly ignored this interpretation and sentenced at least five individuals to 10 years in prison on this charge.

When the law is applied in so vague a way that people cannot predict which acts are crimes, then prosecutions are arbitrary. If Iran wants its grievances to be taken seriously on the international stage, it should respect its own rights obligations at home. It should start by releasing all individuals arbitrarily arrested and charged with vague and ill-defined crimes.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am