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.
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.
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.
- Who is Hissène Habré?
- What are the charges against Habré?
- What crimes fall within the jurisdiction of the court?
- Why did it take so long to bring Habré to justice?
- What was the role of the Chadian government in bringing about Habré’s prosecution?
- How did the chambers carry out their investigation?
- Why was Hissène Habré the only person standing trial?
- What about Idriss Déby, Chad's current president?
- What were Habré's rights before the Extraordinary Chambers?
- Habré and his chosen lawyers refused to cooperate with the chambers. What effect did that have?
- How did the trial proceed?
- What were some of the highlights of the prosecution's evidence?
- What was the defense lawyers' strategy?
- How was information about the trial disseminated?
- What is the maximum punishment Habré could receive if found guilty?
- What was the victims' role in the trial?
- Will the victims receive reparations?
- Can there be an appeal?
- How are the Extraordinary Chambers structured and administered?
- How were the prosecutors and judges assigned?
- What about the trial in Chad of Habré-era security agents?
- How are the chambers funded?
- What will happen to the Extraordinary Chambers after the trial?
- What were the key steps in the campaign to bring Habré to justice?
- What is the significance of Habré's prosecution under universal jurisdiction?
- How does this trial fit into critiques of the role of international justice in Africa and claims that universal jurisdiction cases target Africans?
- Why wasn’t Habré prosecuted in Chad?
- Why couldn’t the International Criminal Court prosecute Habre?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
- 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.
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.
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.”
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.”
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.
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.
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.
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.
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.
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.
The Extraordinary African Chambers will be dissolved once the judgment in the case of Hissène Habré is final.
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 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.
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.
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.
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.
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.
(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.
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.”
(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.
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.
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.
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.
As Co-Director of the US Program, Maria McFarland Sánchez-Moreno guides Human Rights Watch’s work on national security, criminal justice, immigration, surveillance, and drug policy in the United States.
Previously, as Deputy Washington Director for Human Rights Watch, McFarland Sánchez-Moreno conducted advocacy before the US government on a wide array of global human rights issues, including matters related to the Middle East and North Africa during the “Arab uprisings” of 2011. Earlier, she held the position of Senior Americas Researcher, covering Colombia's internal armed conflict and working on the extradition and trial of former Peruvian President Alberto Fujimori.
McFarland Sánchez-Moreno holds a law degree from New York University School of Law and did most of her undergraduate studies in Lima, Peru, before completing her BA at the University of Texas at Austin. She is a native speaker of both Spanish and English.
"Deadly Threats: Successors to the Paramilitaries in Colombia ," (February 2010)
"Your Reaction to NSA Curbs," on BBC World Service’s “World Have Your Say” (January 2014)
Interview with PBSNewshour "Why Does U.S. Having Varying Responses to Mid-East Unrest?"
(Erbil) – The Islamic State (also known as ISIS) executed and dumped the bodies of possibly hundreds of detainees at a site near Mosul, Human Rights Watch said today.
Multiple witnesses told Human Rights Watch that the bodies of those killed, including bodies of members of Iraqi security forces, were thrown into a naturally occurring sinkhole at a site known as Khafsa, about eight kilometers south of western Mosul. Local residents said that before pulling out of the area in mid-February, ISIS laid improvised landmines at the site, which are sometimes referred to as improvised explosive devices or booby traps.
The site is one of dozens of ISIS mass graves found between Iraq and Syria, but could be the largest discovered thus far, Human Rights Watch said. While it is not possible to determine the number of people executed at the site, the estimates of residents, based on executions they witnessed and what ISIS fighters in the area had told them, reaches into the thousands.
Iraqi forces seized control of the site in mid-February 2017. Human Rights Watch visited the site on March 7, but did not inspect the sinkhole closely due to the landmines. An improvised explosive device left at the sinkhole killed a journalist and at least three Iraqi security forces on February 25.
Residents said they had seen multiple mass executions at the 35-meter-wide sinkhole, sometimes on a weekly basis starting in June 2014 until May or June 2015. They said they heard ISIS fighters talking about other executions, including of former police, former Iraqi Security Force members, and members of the Awakening Force (Sahwa), the Sunni force that fought extremist fighters from 2007 to 2008.
On March 11, 2017, the Iraqi Security Forces announced that they had found another mass grave, about two kilometers from Badoush prison, that held between 500 and 600 men – though it is unclear how they determined these numbers. On March 13, Human Rights Watch spoke to an Iraqi military commander who had visited the site four days earlier and had witnessed Iraqi forces exhuming bodies there. On March 15, a general in the Iraqi military’s 9th division told Human Rights Watch that under the division’s supervision, medical experts from Baghdad had exhumed about 400 bodies from the site.
This is the second report of ad hoc and unprofessional exhumations taking place without authorization.
Widespread or systematic murder carried out by a state or organized group as part of an attack against a civilian population – as part of a policy to commit murder – constitutes a crime against humanity. The deliberate killing of civilians and civilian or military prisoners during an armed conflict constitutes a war crime.
To facilitate accountability for these crimes, Iraq should ratify the Rome Statute, giving the International Criminal Court jurisdiction over war crimes and crimes against humanity there, and should incorporate the prosecution of war crimes, crimes against humanity, and genocide into its domestic law.
All parties to the conflict in Iraq should respect the 1997 Ottawa (Mine Ban) Treaty, which Iraq has ratified.
“The strong desire to exhume the remains of loved ones from ISIS mass graves is perfectly understandable, but hastily conducted exhumations seriously harm the chances of identifying the victims and preserving evidence,” Fakih said. “While exhuming the remains of those killed at Khafsa may be difficult, authorities should do what they can to make sure that those who lost their loved ones there have access to justice.”
Five residents from villages near Khafsa told Human Rights Watch that on June 10, 2014, they saw ISIS fighters bring four large trucks filled with blindfolded men, with their hands bound, to the sinkhole. Two residents of al-Athba, a village three kilometers from Khafsa, two residents of Swada, a neighboring village, and a resident of Irbid, three kilometers away, who were able to see the site, described what they saw.
The witnesses said the fighters unloaded the men, lined most of them up on the edge of the sinkhole, and opened fire so that the bodies fell in. Fighters shot a smaller number of people a short distance away and threw their bodies into the hole, the witnesses said. One of the men from al-Athba and the man from Irbid said ISIS fighters later told them that the men they had executed were prisoners from Badoush.
The killings at the Khafsa sinkhole apparently continued regularly from late 2014 to mid-2015. One of the residents from Swada, a shepherd, said that in September 2014, he was near Khafsa and saw male ISIS fighters arrive in a pickup truck with at least 13 women, all with full face coverings and cloaks and blindfolds, with their hands bound. He said the ISIS fighters shot the women on the precipice of the pit. He said he witnessed three more group executions subsequently, including the execution of three of his relatives.
One of al-Athba residents, also a shepherd, said he witnessed one execution at the end of 2014, after ISIS fighters called on the residents of al-Athba to come to the sinkhole over the mosque loudspeaker. Fighters brought three of his friends and his cousin to the site because they were accused of having shared GPS coordinates of ISIS positions with the Iraqi forces, he said. The fighters beheaded the men on a wooden block in front of the town residents, and then threw the bodies into the pit. He said fighters told him they had killed another of his cousins, an army officer, and dumped him in the pit.
The shepherd from al-Athba said that at another time, at the end of 2014, he was with his sheep in the area and saw ISIS fighters arrive in two cars and drag out a very large, strong man. They walked him up onto the precipice of the sinkhole, and as they were about to shoot him, he grabbed one of the fighters and jumped into the hole, holding him. Two witnesses of multiple executions said that fighters started carrying out executions further from the precipice after that because of the fighter they had lost.
Another shepherd from al-Athba said that in February 2015 he was about 30 meters from Khafsa with his sheep when he saw six ISIS fighters arrive in a large bus and march at least 20 men to flat ground near the sinkhole. They lined the men up and shot them, then threw their bodies in, he said. In March 2015, the man said, he was again in the area with his sheep and saw two fighters pull up in a car, take four prisoners out, and shoot them near the pit, then throw their bodies into the sinkhole.
Human Rights Watch interviewed a family from Kudila, 60 kilometers southeast of Khafsa, who had fled their home in March 2016. The husband, a former Iraqi soldier, said that ISIS had imprisoned him for 18 days in Qayyarah in March 2015 for selling cigarettes. He said that fighters took several prisoners from the facility while he was there, and he overheard guards saying they were taking them to Khafsa for execution. The prisoners did not return.
Another man from Sawda said that in early 2015, he saw fighters driving 11 freezer trucks toward the sinkhole, and heard from local ISIS fighters that as many as 1,000 people transported to the site in those trucks had been executed that day.
The five people living near Khafsa said they had heard estimates of between 3,000 and 25,000 people executed at the site. They said they often heard screams and gunfire. By early 2015, the stench from the bodies had become unbearable and families were telling ISIS fighters that they would need to move to Mosul if it persisted. One of al-Athba residents said: “It was summer so we had to sleep on the roof, but we were not able to sleep because the stench of the dead was so strong. The smell was overwhelming.” Another said, “The smell was disgusting, we were inside our houses but the smell still reached us.”
In response to the complaints, fighters brought several cranes and dumped the contents of several large trailers into the hole then filled the rest of the pit with earth using several excavators, according to two of the residents Human Rights Watch interviewed. One said, “They [ISIS] told us the trailers were also full of bodies.” ISIS did not carry out any more executions at the site after it was filled in, all the locals said. They said the smell of decomposing bodies diminished after that.
Satellite imagery analyzed by Human Rights Watch shows that the sinkhole was filled in sometime between March and June 2015.
By the time Iraqi government forces retook the area around the sinkhole in February 2017, the filled-in earth had started to subside. Images taken then by international journalists show the remains of what look like two cars in the middle of the filled-in pit.
The location was already labeled on the open-source online map, Wikimapia, as an ISIS mass grave in April 2014 by an unnamed user, before the area had fallen to ISIS-control, but when there was already a strong ISIS presence in the area. The two shepherds from al-Athba and a federal police officer said that as early as 2004, Al-Qaeda in Iraq, the precursor group to ISIS, had used the sinkhole to dump bodies of people they executed for allegedly collaborating with the Americans or the Iraqi and Kurdistan Regional Governments.
Multiple witnesses told Human Rights Watch that the bodies of those killed, including bodies of members of Iraqi security forces, were thrown into a naturally occurring sinkhole at a site known as Khafsa, about eight kilometers south of western Mosul. Local residents said that before pulling out of the area in mid-February, ISIS laid improvised landmines at the site, which are sometimes referred to as improvised explosive devices or booby traps.
“This mass grave is a grotesque symbol of ISIS’s cruel and depraved conduct – a crime of a monumental scale,” said Lama Fakih, deputy Middle East director at Human Rights Watch. “Laying landmines in the mass grave is clearly an attempt by ISIS to hide evidence of its crimes.”
(Seoul) – The International Coalition to Stop Crimes against Humanity in North Korea (ICNK) today announced its support for two new United Nations reports calling for the international community to hold the North Korean government accountable for crimes against humanity.
The group of independent experts on accountability, appointed by the UN High Commissioner for Human Rights at the request of the Human Rights Council last year with a specific mandate to explore approaches to accountability, asserted that “investigation and prosecution of serious crimes is critical.” The group called for “measures to ensure the right of victims to reparations, the right of victims and society to know the truth about violations, and guarantees of non-recurrence of violations.”
“The North Korean government and its leaders should face justice for their crimes against humanity, which continue to this day,” said Phil Robertson, deputy Asia director at Human Rights Watch. “We urge the UN Human Rights Council to respond positively to the special rapporteur’s call that the recommendations of the group of independent experts be implemented without delay.”
The independent experts stressed the need to consider creating an ad hoc international tribunal, even with a referral to the International Criminal Court (ICC). The ICC provides an important way to hold accountable those most responsible for gross rights abuses, but given the pervasive impunity in North Korea, the experts argued the prosecution of some high-level perpetrators at the ICC should be complemented by other criminal accountability processes. “A dedicated international tribunal for the DPRK [Democratic People’s Republic of Korea] would allow the temporal, territorial, personal and subject-matter jurisdiction to be calibrated to meet the needs and aspirations of the victims,” the experts argued.
The independent experts – Sonja Biserko, a Serbian human rights activist who served on the UN Commission of Inquiry on human rights in North Korea, and Sara Hossain, a lawyer in the Supreme Court of Bangladesh – contended that “given the severity and complexity of the human rights situation in the DPRK, a comprehensive and multi-pronged approach is required to addressing violations.” They also made concrete recommendations to the Human Rights Council to strengthen the UN Human Rights Office in Seoul with additional resources to “receive, preserve and consolidate information and evidence pertaining to the human rights situation in the DPRK, through a central and independent repository, for use in any future accountability mechanism.”
“The two independent experts deserve backing for their hard work and strong recommendations for achieving accountability for human rights violations in North Korea,” said Eunkyoung Kwon, secretary-general of the ICNK. “Member states of the Human Rights Council should now step up to provide support and resources to OHCHR Seoul to support initiatives on extending research and ensuring effective analysis for holding perpetrators accountable.”
In a separate report, the new UN special rapporteur on the situation of human rights in the DPRK, Tomás Ojea Quintana, emphasized that “addressing human rights violations, particularly allegations of crimes against humanity, requires that perpetrators be held accountable.” He called for a “two-track strategy” of engagement with North Korea on human rights where possible, and the pursuit of accountability. “These two tracks are mutually reinforcing, and a dual approach is necessary to produce tangible and sustainable improvement in the situation of human rights.”
The special rapporteur endorsed the group of independent experts’ recommendations and urged “all relevant stakeholders” to act and “to ensure that serious human rights violations, especially those amounting to crimes against humanity, do not go unpunished.” He called on the Human Rights Council to implement the recommendations of the group of independent experts “without delay, ensuring that perpetrators of gross violations are held responsible and supporting all victims in their quest for truth and justice.” He further urged the UN “as a whole” to address “the grave human rights situation in the Democratic People’s Republic of Korea in a coordinated and unified manner.”
“Six years ago we joined together with over 40 other human rights organizations to establish the ICNK with the specific purpose of seeking accountability and justice for crimes against humanity in North Korea,” said Benedict Rogers, East Asia Team Leader at Christian Solidarity Worldwide. “The UN Commission of Inquiry and its report were a landmark step on the path to accountability. The time to end the culture of impunity surrounding North Korea’s crimes against humanity is long overdue.”
South Africa’s North Gauteng High Court today ruled that the government’s attempt to withdraw from the International Criminal Court (ICC) was unconstitutional and invalid, as the government issued its withdrawal notice without consulting parliament. The court ordered President Jacob Zuma and the Ministries of Justice and Foreign Affairs to revoke the notice of withdrawal.
It’s an important ruling for international justice both in South Africa and beyond.
The judgment will compel South African officials, as they move to comply with the court’s decision, to reflect and reconsider the withdrawal notice. Rather than leave the ICC – a court South Africa played a key role in creating – they should use this opportunity to reaffirm support for it. The ruling will be welcomed by many South Africans who opposed the government’s decision to abandon the ICC, which runs counter to the country’s human rights-oriented foreign policy agenda.
The ICC has the potential to deliver justice to victims of the world’s worst crimes when national courts are unable or unwilling to prosecute. The ICC has its flaws, and its reach to more corners of the world should be expanded. Yet it remains the crucial global court of last resort and for many victims the only chance they have to see perpetrators held to account.
South Africa should follow the lead of Gambia, which recently cancelled its ICC withdrawal notice. Such a move would signal South Africa’s commitment to justice and the rights of victims. It would also restore respect for human rights and international justice to the center of its foreign policy practice.
Last month I visited Bakala, a town in the center of the Central African Republic where serious fighting between two rebel groups had recently claimed at least 38 lives. A few brave residents showed me a well where seven bodies had been dumped. Nearby, we saw what looked like dried blood in a school where a man who managed to escape said 25 other people had been executed.
Ali Darassa, commander of the rebel group that witnesses identified as responsible for these killings, the Union for Peace in the Central African Republic (l'Union pour la Paix en Centrafrique, UPC), fiercely rejected the blame. “These accusations have been made against me and my men in the past and yet look, here I am,” he declared. “I have not been arrested.”
Since the country descended into political and communal violence in 2013, with thousands of civilians killed, nobody has been prosecuted for serious crimes. All sides have carried out executions and sexual violence.
Since last week, however, Darassa and the others should be less comfortable. On February 15, the president appointed Toussaint Muntazini Mukimapa of the Democratic Republic of Congo as special prosecutor of a new Special Criminal Court. After years of impunity, the court offers a real chance to hold abusive commanders to account inside the country.
The court will consist of national and international staff and has a mandate to investigate and prosecute the gravest crimes committed in the country since 2003. It will partner with the International Criminal Court, which has a mandate to prosecute crimes since August 2012 but will only be able to focus on a handful of high-level suspects.
Progress on the Special Criminal Court has been slow, but international partners have provided initial funding, and the appointment of the chief prosecutor is a crucial step forward. Next should come the prompt appointment of judges and further staffing, along with securing long-term financial support.
The court will help break the cycle of impunity that has left the many armed groups free to kill at will.
A woman who fled Bakala after her husband was executed explained it well. “If my husband’s killers are allowed to keep killing, how can we return?” she said. “They must stop killing. They must know they will face consequences.”
The appointment of the chief prosecutor is a step toward enforcing consequences. That could move the country a step closer to peace.
Gambia’s announcement this week that it would rejoin the International Criminal Court sends a strong message of support for the court and victims of grave international crimes. Along with Burundi – and its soaring human rights violations in the past year – South Africa is now the outlier on ICC exit.
Gambia’s decision to rejoin the ICC reflects shifting priorities under newly elected President Adama Barrow, who will be inaugurated tomorrow. The departure of his predecessor, Yahya Jammeh, who left for exile on January 21 after initially refusing to accept his December election defeat, ended two decades of repressive rule.
Gambia’s decision – along with numerous expressions of support from African ICC members since South Africa first announced its withdrawal in October – belie rhetoric that Africa is headed for a mass departure from the ICC.
Botswana, Burkina Faso, Côte d’Ivoire, Democratic Republic of Congo, Ghana, Lesotho, Mali, Malawi, Nigeria, Senegal, Sierra Leone, Tanzania, Tunisia, and Zambia are among those that have reaffirmed their support for the ICC. A number of these countries, joined by Liberia and Cape Verde, also pushed back against adoption of a so-called “ICC withdrawal strategy” at the African Union summit in January.
Gambia’s decision reflects the new government’s recognition of the important role that the court plays. The ICC is the only permanent court that has the potential to offer redress to victims of the worst crimes when national courts are unable or unwilling to prosecute.
Despite persistent claims by some African leaders that the ICC targets Africa, most ICC investigations in the continent have been opened as a result of requests from African governments themselves, or the United Nations Security Council, and offer redress for African victims.
The ICC faces steep challenges, particularly expanding its reach to crimes committed in a number of the most powerful countries. But the court still represents a rare hope for victims around the world at a time when horrific crimes continue to be perpetrated with impunity in many countries.
After years of playing a leading role on the court, South Africa opted to curtail access to the ICC for victims, instead of working to expand the ICC’s reach. This is real loss – as the Nigerian foreign minister said around the AU summit, the ICC has “an important role to play in holding leaders accountable.”
We write to thank your government for its support for the December 2016 General Assembly resolution to establish the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (the “mechanism”). Your government’s co-sponsorship of the resolution helped catalyze an important step forward to support justice for serious crimes committed in Syria.
But passing the resolution was just the first step. Raising the initial amount necessary for the mechanism to become operational needs to happen quickly. According to the UN Secretary-General’s recent report on the mechanism, a preliminary estimate puts the funding requirements to meet immediate start-up needs of the institution at between $4 million and $6 million. A broad number and diverse composition of contributing states acting expeditiously is crucial to ensuring the mechanism’s smooth operation and perceptions of its legitimacy. While the mechanism will at first be funded exclusively from voluntary contributions, the General Assembly decided to revisit the question of funding in the near future. We urge your capital to make a financial contribution to facilitate the mechanism’s prompt establishment and the sustainability of its important work.
Human Rights Watch had pressed for the creation of this mechanism and welcomed the December 21, 2016 United Nations General Assembly resolution which established it as a critically important step toward justice after years of unchecked atrocities in Syria. This new entity, along with other documentation efforts, including by the UN Commission of Inquiry on Syria, will be vital to future domestic and international accountability processes. It is our hope that these initiatives build momentum for justice as well as send the message to victims of the Syrian conflict that the crimes committed against them will not go unanswered.
The mechanism will work closely with the UN Commission of Inquiry on Syria, but its mandate goes beyond the commission in important ways. The General Assembly makes clear in its resolution that the mechanism will work to “collect, consolidate, preserve and analyse evidence” of violations and prepare files to facilitate credible criminal proceedings in courts with jurisdiction over the crimes. It will process, according to international law standards, materials that it receives from other sources as well as, where appropriate, collect additional evidence or information. Preserving materials and information that may serve as the foundation for future criminal prosecutions is all the more crucial given the likely lengthy timeframe necessary to hold to account those responsible in a court of law.
We were heartened by the UN Secretary-General’s first step to ensure the mechanism’s prompt and sound establishment, through the presentation of its terms of reference on January 19. Indeed, the terms of reference is a key document to help guide the work of this unique entity and ensure the effective implementation of its mandate. Given the essential tasks assigned to it by the General Assembly, we are pleased that the terms of reference are themselves robust and will support the mechanism’s ability to function independently and impartially.
There will doubtless be varied challenges ahead, but the most immediate relates to financial support. We therefore urge your government to contribute to the fund necessary to operationalize this important mechanism.
We are glad to discuss further our substantive assessment of the terms of reference, the steps necessary to make the mechanism operational, and the imperative of proper funding. Thank you in advance for your attention to this important issue.
International Justice Program
United Nations Director
The African Union made headlines Tuesday for purportedly agreeing to mass withdrawal from the International Criminal Court. The reality is more complex.
The decision by AU member states welcomes the announced withdrawals by South Africa, Burundi, and Gambia, adopts the “ICC withdrawal strategy,” and calls for member states to consider implementing its recommendations. This is based on text we have seen that, while labeled a draft, reflects the final text, sources close to the negotiations said.
But there was vocal opposition by ministers to withdrawal at last week’s AU summit. The Nigerian foreign minister said that the ICC has “an important role to play in holding leaders accountable,” and that “Nigeria is not the only voice agitating against [withdrawal], in fact Senegal is very strongly speaking against it, Cape Verde, and other countries are also against it.”
Nigeria, Senegal, and Cape Verde ultimately entered formal reservations to the decision adopted by heads of state. Liberia entered a reservation to the paragraph that adopts the strategy, and Malawi, Tanzania, Tunisia, and Zambia requested more time to study it.
Meanwhile, the “strategy” does not actually call for mass withdrawal, based on the text that Human Rights Watch reviewed. The document instead states: “Further research on the idea of collective withdrawal, a concept that has not yet been recognized by international law, is required.”
Instead the document revisits AU concerns with the court—including its relationship with the United Nations Security Council and a bid to amend the court’s statute to exempt sitting leaders implicated in widespread atrocities. The document offers information about how states may withdraw from the statute, and notes that lack of adoption of AU proposals to amend the statute could be conditions for withdrawal, but says only that a “timeline for reform should be clearly agreed upon.”
Outside of AU meetings, Nigeria, Senegal, Burkina Faso, Côte d’Ivoire, Mali, Malawi, Zambia, Tanzania, Ghana, Democratic Republic of Congo, Lesotho, Sierra Leone, and Botswana have clearly spoken out in their capitals, New York, and The Hague to expressly reaffirm their commitment to the ICC. The new Gambian president, Adama Barrow, also expressed his intention for Gambia to retract its withdrawal.
This support—and opposition to withdrawal plans—should be strengthened. The ICC is the only court of last resort to deliver justice for victims of mass atrocities when national courts are unable or unwilling. As advocates for victims have said, its reach should be expanded, not curtailed.