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.

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.  

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

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.

Posted: January 1, 1970, 12:00 am

The Permanent Premises of the International Criminal Court in The Hague, Netherlands. 

© 2016 UN Photo/Rick Bajornas

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

Human Rights Watch and Amnesty International have released a video on why the ICC matters today to a new generation of law students studying around the world.

“The ICC’s hard task of bringing justice to victims of grave international crimes is needed more than ever before,” said Richard Dicker, international justice director at Human Rights Watch. “ICC member countries should use the 20th anniversary of the Rome Statute to demonstrate their support for this critically important court of last resort.”

The ICC is the first permanent global court mandated to bring to justice people responsible for serious international crimes – including war crimes, crimes against humanity, and genocide – when national courts are unable or unwilling to do so. The court’s treaty was negotiated over several years, starting in 1995, and concluded after a tumultuous session in Rome.

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.

The ICC has opened investigations in 10 countries, and a request by its prosecutor to open an investigation in Afghanistan is pending before the court’s judges. But even as the court’s workload has expanded, ICC action is needed in many other places. It has been hampered by insufficient financial support from member countries, which fund the court, and limited assistance from governments to carry out investigations and arrests. In addition, court officials have made mistakes in policy and practices that need to be addressed. Fifteen arrest warrants are outstanding.

Without political action by states, including through the United Nations Security Council, the court’s treaty restricts the prosecutor’s mandate when it comes to investigating outside ICC member countries. Russia vetoed a Security Council resolution that would have sent crimes committed in Syria, which has not joined the court, to the ICC prosecutor for investigation. Other Security Council members have used the threat of their veto power to block other action on atrocities.

“Some of the worst international crimes committed today are beyond the ICC’s reach, but by taking effective action, the ICC sends both victims and those who would commit these crimes a powerful message that there can be justice for these crimes, and that those responsible can be held accountable,” Dicker said. “But for this to happen, court officials and member countries will need to rise to the challenge.”

July 17 is also the Day of International Criminal Justice. The work of the ICC is closely linked with broader justice efforts – in national courts, through international investigative bodies, and through international and national cooperation in hybrid institutions – to meet victims’ right to justice. Human Rights Watch has released a video that highlights the important role of trials for international crimes for victims and their loved ones, whom Human Rights Watch interviewed in locations throughout the world.

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.

There are positive signs that ICC member countries are committed to strengthening the court, Human Rights Watch said.

Several events with participation by ministers and other senior officials from ICC member countries are planned to mark the 20th anniversary. These include events on July 17 at UN headquarters in New York, and at the seat of the court in The Hague. Government-led, high-level events in other cities, as well as efforts to promote better public understanding of the court’s mandate, are taking place throughout the year.

European Union (EU) foreign ministers were expected to adopt conclusions on July 16 reaffirming support for the ICC. Human Rights Watch, along with other nongovernmental organizations, has said that the EU should go farther and deliver on a long-standing call by the European Parliament to establish a dedicated special representative on international humanitarian law and international justice, ensuring policy commitments are translated into effective action. All ICC member countries should consider signing agreements with the court to relocate witnesses and protect defendants’ rights to release on bail.

To improve prospects for justice, court officials need to address gaps in the ICC’s performance, Human Rights Watch said. Weak investigations in some of its earliest cases, lengthy investigations and court proceedings, and too-limited efforts to support victims’ access to their rights at the ICC risk undermining confidence in the court within the communities affected by the crimes within its mandate.

Strong support from member countries is key to overcoming political obstruction to the court’s work. The United States, which has not joined the court but in recent years has supported ICC investigations on a case-by-case basis, was a no-show at a July 6 informal discussion at the Security Council aimed at improving that body’s support to the court.

“There is a risk that the deteriorating global trends on human rights will all too easily be exploited to undercut the ICC by those who have something to fear from accountability,” Dicker said. “Justice supporters will need to do all they can to see to it that the ICC will succeed on this difficult landscape and deliver victims their day in court.” 

Posted: January 1, 1970, 12:00 am

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.

Posted: January 1, 1970, 12:00 am

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.

 
(The Hague) – Amnesty International and Human Rights Watch released a short video today in which students from universities around the world discuss the importance of the International Criminal Court (ICC). Supporters of international justice will mark the 20th anniversary of the Rome Statute, the court’s founding treaty, on July 17, 2018.
 

The ICC is the first permanent international criminal court set up to provide justice for the victims of the world’s worst crimes, including genocide, war crimes, and crimes against humanity. It has opened investigations in 10 countries since it began operations in 2003.

The International Criminal Court premises in The Hague.

© 2016 Human Rights Watch

“The frequent wartime atrocities around the world are a disturbing reminder of the need to hold those responsible to account and bring justice for victims,” said Elizabeth Evenson, associate international justice director at Human Rights Watch. “A new generation recognizes the critical role the International Criminal Court can play in achieving those goals.”

The ICC has 123 member countries. The ICC prosecution has opened investigations in Burundi, Central African Republic, Côte d’Ivoire, the Darfur region of Sudan, Democratic Republic of Congo, Georgia, Kenya, Libya, Mali, and northern Uganda.

The prosecutor is also examining allegations of crimes committed in a number of other countries to determine whether to open investigations. These include: Colombia, Guinea, Nigeria, Palestine, Ukraine, and alleged abuses by United Kingdom armed forces in Iraq. The prosecution’s request to open an investigation in Afghanistan is pending before the court’s judges.

“At this twentieth anniversary of the ICC we must keep looking forward,” said Matt Cannock, head of Amnesty International’s Centre for International Justice. “Challenges will increase as the ICC becomes even more effective, and they will be met by young people who recognize the importance of international justice.”

Posted: January 1, 1970, 12:00 am

Four years ago, Human Rights Watch and Amnesty International—joining hundreds of others—urged the United Nations Security Council to send atrocity crimes committed in Syria to the International Criminal Court (ICC) for prosecution. Then, the conflict had already claimed 100,000 lives, overwhelmingly civilians. Today, the death toll is estimated at over half a million, with each day bringing new violations and unlawful killings.

Yet the ICC has been unable to act. Russia’s veto at the Security Council continues to block a path to justice for Syria’s victims. Other council members, including the United States, have also used or threatened to use their veto to block action on other atrocity crimes.

The International Criminal Court premises in The Hague.

© 2016 Human Rights Watch

This sad situation is a far cry from the summer of 1998, when many governments with the support of nongovernmental organizations came together in Rome to create the ICC. Many of the major powers including the US opposed the effort, but smaller and medium-sized governments seized what turned out to be a fleeting moment. With a post-cold war faith in multilateralism and a resolve driven by genocide in Rwanda and the former Yugoslavia, these governments acted on longstanding but unrealized ambitions for a permanent, global criminal court. The Rome Statute, the court’s founding document, was adopted on July 17, 1998, and the court was set up four years later.

The ICC is a court of last resort, for the most serious international crimes, including genocide, war crimes, and crimes against humanity. The court can act in all countries that have joined its treaty—123 are now ICC members—but where states have not, as in Syria, a so-called referral from either the government or the UN Security Council is needed. These and other limits notwithstanding, the court’s creation was an extraordinary achievement, firmly establishing a marker on the side of justice and the protection of human rights.

Today, the court has opened formal investigations in 10 countries. But with mass atrocities being committed in many parts of the globe, it is needed elsewhere as well. The court is responding by moving away from its all-Africa focus. For example, the prosecutor’s pending request to open an investigation in Afghanistan would put in reach US nationals alleged to have committed war crimes there. That will likely provoke fierce opposition from the Trump administration. But it would demonstrate the potential of the ICC to investigate previously “untouchable actors” and to demonstrate that no one is above the law, puncturing a damaging if misleading narrative that the court was targeting only African leaders. Similarly, Palestine’s ratification and recent request to the ICC prosecutor to investigate war crimes there brings into the court’s sights a decades-long situation of near-complete impunity on the part of both Israeli and Palestinian forces.

Yet parallel with this acute need, the court is facing steep challenges. Some of these were to be expected as it becomes more effective and begins to investigate more powerful states or affect their interests. But this is not a sufficient explanation.

The court needs to improve its own performance. It has been plagued by lengthy proceedings, insufficient investigations in its earliest cases, and case-selection strategies that don’t always reflect what is most meaningful to victims. The prosecutor’s office would be well served by articulating clear priorities within and among the countries it addresses—and then living up to them.

But the burden of bolstering the ICC also rests with its member states. Like other human rights-protecting institutions, the court has struggled with a lack of political will among its ostensible government supporters, especially when it comes to arresting suspects. Inevitably, fulfilling obligations is more difficult in practice than in the abstract. Fifteen ICC arrest warrants are currently unenforced. In addition, damaging haggling among ICC members over restricting the court’s budget has displaced meaningful debate about how to build an effective institution.

The ICC has also attracted predictable opposition from leaders with reason to fear accountability. Facing possible ICC investigations, Burundi and the Philippines announced their withdrawals from the ICC, with Burundi having now formally left the court. As the now-open Burundi investigation shows, however, withdrawal has little legal effect on the court’s ability to pursue past crimes. Kenya, at a time when cases were pending before the ICC against the country’s president and deputy president for allegedly engineering attacks on one another’s supporters following the 2007 disputed election, tried to orchestrate a mass withdrawal by African countries. It failed in the face of strong opposition from other African governments and African civil society.

To counter such attacks, member states should use every opportunity to demonstrate support for the court. Member states that have complained about a perceived selectivity should support the court as it opens investigations outside Africa. Such concrete assistance can include building pressure to execute outstanding arrest warrants and ensuring that the court has the necessary funds to do its job.

At stake is not just the success of a single institution. The Rome Statute “system” is a network of the national courts of ICC member countries. The accountability embedded in the ICC treaty serves as a catalyst for other justice efforts, such as a UN-backed investigation mechanism set up for Syria to circumvent the Russian veto at the Security Council. That mechanism is not a court, but it can build trial-ready cases for national and international investigations when suspects are arrested and international justice avenues become available.

As the twentieth anniversary of the ICC treaty nears, it is time to renew commitment to this landmark institution and for other states to join the court. These are the dangerous times that the court’s founders anticipated, warning in the treaty that the “delicate mosaic [of humanity’s common bonds] may be shattered at any time.” They believed they were building an institution to ensure that the most basic values—equality, dignity, justice—would be protected by law. It is critical not to turn back from this goal. We urge the global community that supported the ICC’s creation to work together with court officials to ensure that the ICC and its fight against impunity are strengthened by adversity, not diminished.

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

All of us felt we were there in a history-making event and moment.

Richard Dicker, International Justice director, about the creation of the Rome Statute

You were there when the treaty establishing the ICC was completed 20 years ago. What was that like?

It was a six-week rollercoaster ride of intense negotiations, preceded  by three years of negotiations at United Nations headquarters in New York to create a draft treaty. There were ministers and lawyers from probably 150 countries around the world, and nongovernmental organizations from around the world, too.

I got to Rome filled with excitement. Really, we were looking at accomplishing a task that was so urgently needed. You have to remember, this was directly after the horrific conflict in the former Yugoslavia, where there was genocide in the mass execution of 8,000 Muslim men and boys in Srebrenica. It also followed on the Rwandan genocide, when in a three-month period about 800,000 Tutsis were slaughtered. The world was reeling and it needed a permanent criminal court that could deal with these kinds of horrors wherever they occurred.

All of us felt we were there in a history-making event and moment.

And there was also the uncertainly of whether at the end of the five weeks – it was going to end on July 17 come hell or high water – there would be a treaty establishing a court worth having. Were we going to succeed? Fail?

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.

What was your role in helping establish the court?

Civil society groups, including Human Rights Watch, had a lot to say about provisions that would be part of a final treaty, specifically the powers of the court and its officials. We had a say in what war crimes could be included, for example which crimes committed in civil wars.

We were not formally included in the negotiations. But another role for Human Rights Watch and colleague groups was to share strategy and tactics with the 70 or so countries that wanted to create a fair, independent, impartial, and effective court. We shared thoughts on ways to circumvent obstacles thrown up by some of the less supportive countries, like China, Saudi Arabia, and India. Also, the United States posed its own demands.

We also spoke to the media. We could say things that official delegations would not say and stigmatize certain governments that were being particularly obstructive.

Public Prosecutor Fatou Bensouda enters the court room for the trial of Dominic Ongwen, a senior commander in the Lord's Resistance Army, at the International Court in The Hague, Netherlands, December 6, 2016. 

© 2016 Reuters

The ICC’s current chief prosecutor, Fatou Bensouda, is seen as someone who diligently works to uphold the rule of law, all while a new generation of world leaders are busy trying to tear down institutions.

Unfortunately, the first prosecutor of the court made significant mistakes. He shortchanged the importance of serious, careful investigations. This meant that several of the charges and cases he brought during the court’s first decade were tossed out. Those cases were further undermined by witness tampering, with some witnesses disappearing and others possibly killed. This includes the now-dismissed case against Kenya’s current president and deputy president involving post-election violence. There were cases in the Democratic Republic of Congo that were similarly tossed out.

This was a real problem. The first impression created by the ICC was not terrifically positive.

The current prosecutor, Fatou Bensouda, started work in 2012. She is quite different, in that she actually bases her actions, and the actions of her office, on the requirements of the Rome Statue itself. Investigation is taken much more seriously. Getting the facts. Double-checking the facts. She conveys a sense of commitment to the law. A commitment to the victims in the communities most effected by the crimes, and a carefulness that is very important.

Which is not to say that the Office of the Prosecutor, or the court, does not still have challenges.

Le personnel de la Cour pénale internationale présente les activités de la Cour aux habitants d’un village de l’Ituri, région ravagée par la guerre à l’Est de la République Démocratique du Congo.

© 2008 ICC-CPI

Like the fact that some countries are not parties to the ICC because they haven’t ratified the treaty. So the court’s justice isn’t universal.

When the ICC was founded, it was shortly after the end of the Cold War, the end of apartheid in South Africa, the transition to democracy in many Latin American countries, and the end of dictatorship in South Korea. Some even thought, what will be the need for this court?

Contrast that with today. What’s happened in Syria. What’s happened in Iraq, what’s going on in Yemen. The civil war in South Sudan and the ethnic cleansing of 700,000 Rohingya Muslim in Myanmar. We see the proliferation of the ugliest kinds of crimes that the ICC was created to address.

Yet the ICC cannot address them because none of the countries I just mentioned – not surprisingly – have ratified and joined the ICC system. And thus, these crimes unfold and the court’s prosecutor has no authority to intervene unless the UN Security Council – without any of its five permanent members casting a veto – asks the court to get involved.

Why was the court designed this way? An important concession was slipped in to make the ICC appear less threatening to the US government. This happened at the last minute, very quietly, and was then presented as a fait accompli. And of course the US didn’t join anyway.

Activists from across Africa highlight the need for African governments to support the International Criminal Court in a video by 21 African and international nongovernmental organizations. 

The upshot, essentially, is that for the prosecutor to begin an investigation in a country, it is necessary for that country to have ratified this treaty. Nearly two-thirds of the UN membership – 123 states – are party to the treaty. Among the exceptions are the largest and most powerful states: China, the US, Russia, India, Pakistan, and Saudi Arabia.

The only other way for the ICC to reach these countries is if their forces commit crimes on the territory of a country that has joined the ICC. For example, there is evidence that US military forces and intelligence personnel committed war crimes on Afghan soil. In 2004 the government in Kabul decided to ratify the treaty. That’s why alleged US crimes in Afghanistan are a focus of the ICC.

And it’s not just Afghanistan. The ICC is on the cusp of a shift away from where it traditionally operated in Africa to opening preliminary examinations in the Philippines, Venezuela, and other countries.

There is a shift that’s taking place. The court carried out all of its first investigations in Africa, in most cases at the request of the countries themselves, with two others at the request of the UN Security Council. Some African leaders said the ICC was unfairly persecuting Africa. I think abusive leaders used that as a self-defense tactic. But it had resonance because of the dreadful centuries of Africa’s colonial history, where the continent and its people were ravaged by European powers.

Mourners display a streamer during a funeral march for Kian delos Santos, a 17-year-old student who was shot during anti-drug operations in Caloocan, Metro Manila, Philippines August 26, 2017.

© 2017 Reuters

So, then you have the president of Kenya saying the court was a tool of neo-colonial powers.

I think this prosecutor sees her legacy in part as bringing the court out of Africa. She has requested  opening investigations in Afghanistan, which implicates the US. She has opened an investigation in Georgia in the Caucasus, which may implicate Russia. In the case of Palestine, she may open an investigation into settlements in the West Bank that would implicate Israelis.

This is an effort to realize the promise and potential that inspired so many of us in Rome. We were creating a court that could reach people from the most powerful countries, as well as the  less powerful states, wherever horrific crimes have been committed.

Does the ICC have the resources to do this?

I think they are stretched very thin. And that’s in part because the major contributing governments – France, Germany, the UK, Japan, Canada, and Italy – refuse to increase the court budget  commensurate with the demands. These governments want to limit the court’s budget  increases to keeping with inflation when the number of countries where the court is investigating, or deciding whether to investigate, has increased dramatically.

The court’s budget of 150 million euros per year is a lot of money, no doubt. But it costs a lot less than a month’s UN field operations in some war-torn countries.

A community member in Lukodi stands next to a memorial of a May 19, 2004 massacre, one of the atrocities for which Dominic Ongwen is facing charges before the International Criminal Court. Over 4,000 victims are participating in the trial. 

© 2016 G. GT.

Victims of the 2010 post-election crisis protest outside the Justice Palace, demanding that the International Criminal Court prosecute former Cote d'Ivoire president Laurent Gbagbo, in Abidjan, Cote d'Ivoire on June 17, 2013.

© 2013 Reuters

Can the court manage without additional resources?

Yes, but in a more restricted way than the court’s treaty intended. The question, though, is whether in diversifying its investigations it will step on the toes of very powerful countries. And the sheer obstacles of doing this difficult work well with limited funding. Will the ICC be able to rise to the challenge? These are the stakes for 2018.

Is the court strong enough to withstand the attacks on the rule of law happening throughout the world? After all, these are coming from both authoritarian countries and democracies headed by autocratic populists.

The governments that created this court 20 years ago need to convey publicly, to their own people, why the court, with all its operational shortcomings, is important. And they need to increase the support – politically, diplomatically, financially – for this institution. That’s what this 20th anniversary should be about.

Why do you see the court as essential? People are still committing horrible and cruel crimes.

The court will not cure and correct all the cruelty and crimes human beings inflict on one another. But there is a clear lesson to be derived from history. Overwhelmingly, with one or two exceptions, when these crimes occur, if there is no proper accounting for them – no impartial trials – the same crimes will likely erupt again in an uglier, more intense way.

Slobodan Praljak is seen during television broadcast of the appeal trial in the Hague, Netherlands, for six Bosnian Croat senior wartime officials accused of war crimes against Muslims in Bosnia's 1992-1995 war, in Mostar, Bosnia and Herzegovina November 29, 2017.

© 2017 Reuters

Trials are essential, along with truth telling, documenting crimes, providing reparations, and ridding security forces of people who committed grave crimes. As is fostering the development of war-torn countries in the context of a durable peace.

So, you ask me what’s the importance of the court? First and foremost, it’s a matter of honoring the victims and their memory by holding to account those found to be responsible for their suffering. I think that’s a mark of civilization. But pragmatically speaking, if you want to prevent the recurrence of such crimes, these trials and other measures are crucial to prevent another, even more vicious, cycle of violence.

Why are you so dedicated to International Justice?

I’m a human rights activist, first and foremost. Have been for decades. I was trained professionally as a lawyer. And I’ve seen the role that law can play in advancing and defending human rights. I think that with its weakness and shortcomings the court still represents a qualitative advance in the rule of law and the protection of human beings.

What’s in it for me? I think that at the end of the day, it’s that. Of the advances this represents. The importance of improving the practice. Not just growing cynical. Or skeptical. Not letting those who fear accountability have their way to commit heinous crimes without fearing being held responsible. That’s what keeps me in there.

And the people I’ve met, in the camps for displaced people in northern Uganda and northern Mali, or the survivors of the genocide in Srebrenica, or the victims of the limb amputations in Sierra Leone, or the Iraqi victims of Saddam Hussein. I mean, that’s the fuel. That’s what’s driving me.

Author: Human Rights Watch, Human Rights Watch
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

Liberia inched closer to justice for war crimes this week. During an appearance before the United Nations Human Rights Committee in Geneva on Monday, the Liberian delegation pledged – for the first time – to issue a public statement on accountability for grave crimes committed during the country’s two civil wars. This promise falls far short of what is needed, but it’s a move in the right direction.

Liberians have been waiting many years to see justice for the atrocities suffered during the country's civil wars – including massacres, summary executions, rapes, torture, and mutilation. Nine years since Liberia’s Truth and Reconciliation Commission issued its report, which called for a special war crimes court to be set up, not a single person has been tried in Liberia for war crimes. A handful of cases involving civil war-era crimes have been pursued abroad.

When pressed by the Human Rights Committee to respond to calls for justice, the delegation said that Liberia has thus far focused on reconciliation, and argued that President George Weah’s administration is still relatively new. But it conceded that more and more Liberians are coming forward to press for justice, and indicated it would “soon” issue a public statement on accountability for past crimes.

Liberians, who of late have been marching in the streets demanding a war crimes court, will eagerly await their government’s public statement.

It may only be the smallest of steps, but for a country that lived through 14 years of war and for victims who suffered the worst crimes imaginable, the promised statement offers a glimmer of hope that one day justice will be served.

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

Session of the German lower house of Parliament, Bundestag, in Berlin, February 1, 2018.

© 2018 Reuters/Axel Schmidt
 
(Berlin) – The German parliament adopted a cross-party resolution on June 28, 2018, urging the government to increase its active support for the International Criminal Court (ICC), Human Rights Watch said today. The 20th anniversary of the court’s founding document, the Rome Statute, is coming up on July 17.
 
The resolution had support from members from the German Christian Democratic Party (CDU)/Christian-Social Union of Bavaria (CSU), Social Democratic Party of Germany (SPD), the Free Democratic Party (FDP), and the Green Party (Bündnis90/Die Grünen). The broad support underscores the court’s relevance and importance.
 
“Parliament’s resolution is an important signal of Germany’s ongoing commitment to the global fight against impunity,” said Wolfgang Büttner, senior press and advocacy officer at Human Rights Watch. “Foreign Minister Heiko Maas should heed this call and use the 20th anniversary of the ICC treaty to renew Germany’s leading role in supporting the court.”
 
The ICC is the first permanent global court mandated to bring to justice people responsible for serious international crimes, including war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so. The ICC has 123 member countries and its prosecutor has opened investigations in 10 countries.
 
The resolution urges the government to work to strengthen the ICC, including by encouraging more countries to join the court and by ensuring that it has sufficient financial support. With the need for the ICC clearer than ever, given the alarming human rights crises in many parts of the world, these steps are critically important to widen victims’ access to justice, Human Rights Watch said.
 
The Rome Statute was negotiated over several years starting in 1995 and finished after a tumultuous successful session in Rome on July 17, 1998. The court began work in 2003.
 
Germany, in particular through the support of then-foreign minister, Klaus Kinkel, played a leading role in the drafting of the ICC statute. The German delegation in Rome stood up for an effective and independent ICC. Germany’s stance generated a threat from the US to withdraw its forces from Germany. Germany withstood the pressure and 121 countries voted to adopt the treaty, while only seven voted against it. The US has not joined the court.
 
But the court needs greater support from its current 123 member countries including Germany, Human Rights Watch said. The court relies on the cooperation of member countries to make arrests. It has 15 outstanding arrest warrants, limiting its ability to deliver justice.
 
Germany, as other ICC states parties, should increase its efforts to help develop arrest strategies. In some cases, this could include providing operational assistance. In other cases, Germany should press ICC member countries that fail to live up to their responsibilities to carry out arrests when those named in the warrants are on their soil.
 
With a growing docket, the court also needs financial resources, as the resolution recognizes. The court’s member countries, which provide the financing, should expect that resources will be spent efficiently and in an accountable manner. But the demands on the court are such that it needs to work in far more places and on far more cases than it currently has resources for.
 
Germany has voluntarily donated to important court activities, like its Trust Fund for Victims. It is one of the court’s biggest funders. But in recent years, it has also been part of a small group of ICC member countries that has insisted on arbitrary limits to budgetary growth. This restrictive approach is increasingly undermining the ICC’s work, Human Rights Watch said.
 
The resolution also calls on the German government to consider what steps could be taken to expedite proceedings at the ICC. While the court’s judges have been working to improve the efficiency of proceedings, there is certainly room for improvement in the court’s performance, Human Rights Watch said. Weak investigations in some of its earliest cases led to charges being thrown out. The current ICC prosecutor since taking office in 2012 committed to strengthening investigations and prosecutions.
 
“German leadership on the ICC when its treaty was being developed was decisive and principled,” Büttner said. “Germany should return to firm political and financial support for the court, and its much-needed mandate to deliver justice for victims of the world’s worst crimes.”
Posted: January 1, 1970, 12:00 am
The European Union (EU) and its member states have a longstanding commitment to promote respect for human rights and international humanitarian law (IHL) and to fight impunity for international crimes through criminal prosecutions.[1] Translating these commitments into effective action now needs to be a matter of urgent priority for the European Union, in the face of an alarming commission of international crimes across the globe.
 
When it comes to armed conflict, as in Yemen, Syria, and South Sudan, the protection of civilians from targeting and indiscriminate attacks remains a paramount challenge. More specific challenges include attacks on humanitarian workers, as well as attacks on education and on medical and healthcare facilities. Ensuring civilian populations in need have access to humanitarian assistance, and that parties respect their obligations under IHL to facilitate humanitarian assistance is also a central concern. International crimes are also taking place outside of the context of an armed conflict, as in Burma/Myanmar’s Rakhine State.
 
And yet, global political consensus in support of the International Criminal Court (ICC) and other justice mechanisms—which should be able to act regarding crimes committed in conflict and non-conflict settings— has weakened and fragmented. Without stepped-up efforts there is a risk that impunity will become the new norm, fueling further attacks against civilians, healthcare facilities, schools, and aid workers, the use of illegal and indiscriminate weapons, and other serious crimes by governmental and non-state actors who have no reason to fear accountability.
 
International leadership is urgently needed. This is the time for the European Union and its member states to step up and renew their commitments to defend the rule of law, advance the protection of civilians, and relentlessly pursue justice for victims of the most serious crimes of international concern. The European Union and its member states should appoint a high-level expert as the European Union Special Representative (EUSR) for International Humanitarian Law and International Justice to ensure the best possible guidance and leadership in implementing EU pledges in these areas.
 
This high-level capacity is urgently needed for the EU to effectively confront what is an exceptionally complex policy landscape. Increasing support for the ICC remains essential. Although many crises are beyond the reach of its jurisdiction, its ability to act where it can sends a message about international commitment to accountability. This is of the greatest importance in the face of horrific contemporary crimes which include airstrikes on civilians, aid workers, and civilian infrastructure—such as schools and health facilities in Yemen and Syria—among other conflicts and situations. The ICC is needed to monitor situations within its jurisdiction, including crimes against humanity outside conflict situations, and hopefully to deter future crimes. But further investment is also needed in complementary mechanisms for providing justice at the national and international level, and in fact-finding and other means of evidence preservation to build long-term strategies for justice.
 
In addition, there is a need for the EU to engage and move forward at a higher level on a range of important debates at the UN and other multilateral settings relevant to the protection of civilians, consistent with its existing policies, including the EU Guidelines on Children in Armed Conflict and the EU Guidelines on violence against women and girls and combating all forms of discrimination against them. Over three-quarters of EU member states have joined the Safe Schools Declaration, a political commitment to protect education in war that the International Committee of the Red Cross (ICRC) has recognized as a tool to improve compliance with IHL. Debates related to attacks on healthcare facilities and personnel would benefit from additional expertise, research, and coordination. Critical international campaigns are also underway to prevent harm from the use of explosive weapons with wide-area effects in civilian areas and to prevent the development, production and use of fully autonomous weapons, also known as lethal autonomous weapons systems.
 
Against this landscape, the EU and its member states should continue to increase much-needed principled leadership. Creative diplomatic action is needed to identify and support the right approaches to build successful coalitions for the respect of IHL and the deterrence of international crimes (including those committed outside armed conflict), secure the protection of civilians, and develop pathways to justice for victims. A dedicated EUSR for International Humanitarian Law and International Justice will help ensure that EU policies, decisions, and efforts work as effectively as possible toward these ends and will greatly enhance the EU’s ability to team up with likeminded states, organizations, and actors around the world.

 

Proposed Mandate

An EUSR for International Humanitarian Law and International Justice should be mandated to:

  • Propose specific EU and member state actions to advance protection of civilians through respect for IHL and justice for international crimes, particularly in response to urgent crisis situations. This should include developing expertise on the range of justice options, for example, the ICC, other international tribunals and internationalized courts, fact-finding missions, commissions of inquiry, and dedicated investigative mechanisms. This should also include national-level atrocity crime trials, and ensuring that appropriate mechanisms are supported politically, financially, and at an operational level by the EU and other international partners;
  • Advance respect for IHL worldwide and implementation of the EU guidelines and action plan on IHL. This should include recommending measures to raise the cost for those committing atrocity crimes and addressing the lack of accountability for IHL violations, such as attacks on healthcare facilities and personnel. The EUSR should also promote the protection of schools including by restricting their use for military purposes;
  • Promote implementation and compliance of key humanitarian disarmament instruments such as the 2008 Convention on Cluster Munitions, 1997 Mine Ban Treaty, 1993 Chemical Weapons Convention, and 1980 Convention on Conventional Weapons. The EUSR should support the creation of new international law to prevent the development and use of fully autonomous weapons;
  • Advance and contribute to the implementation of the EU’s decision and action plan on the ICC. This should include maintaining contacts with the ICC, promoting cooperation with the court, notably with regards to pending arrest warrants; steering an EU early warning mechanism to avoid non-cooperation with the court and ensure the EU’s reaction when it occurs; strengthening the EU’s diplomatic support to the ICC with regards to ongoing investigations; and promoting universal ratification and implementation of the Rome Statute;
  • Mainstream EU support to national-level efforts through application of the complementarity principle, both as a matter of policy and in specific country situations;
  • Help to ensure internal and external coherence and coordination in EU policies addressed to advance respect for international law and fighting impunity for atrocity crimes; and
  • Forge coalitions with a range of other like-minded actors working collaboratively and innovatively, including other regional and international organizations, states, justice mechanisms, experts, victims, and civil society organizations.

Reporting to both the EU High Representative and EU member states will help maximize coordination of policies and actions, including with other special representatives; increase the representational value and legitimacy of the EUSR; and invest ownership in the development of policy steps equally with the EU institutions and member states.

 

What value would this position add to the EU’s existing support for international humanitarian law and international justice?

  • Expert leadership. The EUSR would provide expert leadership concerning implementation of existing EU decisions and policies concerning IHL and international justice, as well as urgently-needed expert guidance for recommended EU actions and policies when dealing with situations of persistent IHL violations and persistent impunity for the most serious crimes of international concern.
  • Visibility. The EUSR would be an important “face and voice” of EU support and the promotion of justice for international crimes across situations. The EUSR could catalyze diplomacy by various EU institutions and EU member states for maximum effect. Mandated by the European External Action Service (EEAS) and EU member states, the EUSR could demonstrate EU unity in matters related to the ICC and other international justice mechanisms, and add additional weight to the EU’s voice and actions.
  • Coordination. The EUSR would also be a high-level voice internally at the EEAS, who could ensure that support for IHL, the ICC, and other accountability mechanisms is appropriately mainstreamed in all relevant areas of EU foreign policy. This would also serve to ensure smooth coordination between the EEAS, the European Commission, other EU institutions, ESDP missions, and EU member states in the areas of IHL and international justice.
  • Innovation and consistency. The EUSR should bring and concentrate expertise on matters related to IHL, the ICC, and accountability for grave crimes with a view to influencing EU policy in a positive, proactive manner. This expertise should be across the board of various international justice initiatives and would enable the EUSR to draw lessons learned and inform EU policy. The EUSR would be the “keeper” of the EU’s agreed policies on IHL and the ICC and accountability for grave international crimes, to ensure consistent implementation. Working with a small expert team, the EUSR would also ensure that the EEAS has the necessary staff resources allocated to this important work. This is particularly important given the scale of IHL challenges around the world and the range of international justice mechanisms relevant to an increased commission of international crimes.
  • Knowledge resource. The EUSR would collect information relevant to IHL developments and the operation of the ICC and other justice or related mechanisms (e.g., commissions of inquiry and fact-finding missions) for the promotion of accountability globally. This information would then be shared with the relevant EU working groups in Brussels and could inform EU policy to advance the work of the ICC and justice.
  • External coordination and partnership. The EUSR would work within a network of partnerships across governments, regional organizations, the UN, the ICRC, and civil society. In this regard, the EUSR would be the counterpart of other existing IHL and international justice envoys including relevant regional and UN mechanisms.

 

Signatories:

Coalition for the International Criminal Court

FIDH

Human Rights Watch

No Peace Without Justice

Women's Initiatives for Gender Justice

World Federalist Movement - Institute for Global Policy


[1] This includes support for the International Criminal Court and other international mechanisms, assistance to national courts in third countries, and the use of universal jurisdiction and other forms of extraterritorial jurisdiction in the domestic courts of EU member states. Deterring and repressing international crimes also forms part of the European Union’s commitment to integrated approaches to external conflicts and crises, and is essential to peacebuilding and other efforts to achieve sustainable development. The EU has dedicated guidelines relevant to the deterrence and repression of international crimes committed against particularly vulnerable populations, guidelines on children and armed conflict, and guidelines on violence against women and girls and combating all forms of discrimination against them. Above all, these commitments reflect the European Union’s core commitment to the rule of law as an alternative to the use of violence. See, for example, “Council Decision of 13 June 2002 setting up a European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes,” Council of the European Union, 2002/494/JHA, June 13, 2002; “EU Guidelines on Children and Armed Conflict,” December 9, 2003; “EU guidelines on violence against women and girls and combating all forms of discrimination against them,” December 8, 2008; “Updated European Union Guidelines on promoting compliance with international humanitarian law (IHL),” 2009/C 303/06, December 15, 2009; “Council Decision 2011/168/CFSP of 21 March 2011 on the International Criminal Court and repealing Common Position 2003/444/CFSP,” March 22, 2011; “Action Plan to follow-up on the Decision on the International Criminal Court,” Council of the European Union, July 12, 2011; “Joint Staff Working Document on Advancing the Principle of Complementarity: Toolkit for Bridging the gap between international & national justice,” Council of the European Union, February 22, 2013; “The EU’s Policy Framework on support to transitional justice,” Council of the European Union, November 15, 2015; “Council Conclusions on the Integrated Approach to External Conflicts and Crises,” January 22, 2018.

Posted: January 1, 1970, 12:00 am