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

Congolese Special Prosecutor Toussaint Muntazini (R) and the five other judges of the Special Criminal Court (SCC)—which is to investigate and prosecute crimes against humanity and war crimes committed in the Central African Republic since 2003—sit at the National Assembly in Bangui, having been sworn in on June 30, 2017. 

© 2017 Saber Jendoubi/AFP/Getty Images

(Bangui) – The Central African Republic’s Parliament should swiftly adopt the rules of procedure and evidence for the country’s Special Criminal Court, 40 Central African organizations, the International Federation for Human Rights (FIDH), and Human Rights Watch said in a letter to members of parliament released today. The court cannot proceed with investigations and trials until the rules of procedure and evidence are in place to govern the court’s operations.

The Special Criminal Court is a new court based in the Central African Republic’s domestic justice system that operates with international participation and support. The court has a mandate to try war crimes and crimes against humanity committed in the Central African Republic since 2003. It was established by law in 2015, but the appointment of the special prosecutor, judges, and a chief register began in 2017.

“The Special Criminal Court offers a landmark opportunity to break the cycles of impunity that drive violence in the Central African Republic,” said Maître Mathias Barthélémy Morouba, president of the Central African Human Rights Observatory. “The recent violence in Bangui shows that, five years into this conflict, armed groups still feel they can kill and terrorize civilians without consequence.”

The organizations are holding a news conference on May 24, 2018, in Bangui, the capital, on the need to adopt the rules of procedure and evidence without delay and distributed their letter seeking their adoption to all members of parliament. The rules were sent to parliament on May 15 amid the worst fighting in the capital since 2015.

The rules include key provisions for ensuring respect for the rights of the accused, protection of witnesses, engagement by victims, and the potential for reparations. The rules as presented should be adopted swiftly to enable the court to advance its core operations, the groups said.

Many of the organizations participated in consultations on a draft of the rules, during a workshop in Bangui in October 2017. During the workshop, lawyers, judges, and human rights defenders exchanged views on the text. The draft rules were subsequently revised based on those discussions and other input.

The work of the new court complements two investigations opened by the International Criminal Court into crimes committed in the Central African Republic, as well as investigations by the country’s regular national justice system.

“We have already waited too long to see justice for atrocity crimes,” said Monsieur Hervé Séverin Lidamon, president of the Victims’ Association for the 2012-2014 Events. “Parliament is in a position to send a strong message to current and would-be perpetrators: prepare to be held accountable for your actions.”
 

Posted: January 1, 1970, 12:00 am

Congolese Special Prosecutor Toussaint Muntazini (R) and the five other judges of the Special Criminal Court (SCC)—which is to investigate and prosecute crimes against humanity and war crimes committed in the Central African Republic since 2003—sit at the National Assembly in Bangui, having been sworn in on June 30, 2017. 

© 2017 Saber Jendoubi/AFP/Getty Images

Governments across Africa should take note of developments in the Central African Republic to deliver justice to victims of grave crimes committed in the country.

The Special Criminal Court (SCC), established in 2015, is a domestic court that operates with significant international support. The court is staffed by international judges, prosecutors, and administrators, who work alongside practitioners from the Central African Republic. The United Nations is contributing to the court’s security, staff recruitment, the training of investigators, and witness protection. (We examine the court in a report released last week.)

Too often, countries that suffer widespread atrocities lack the capacity or the will to try such crimes. The SCC is an example of how governments can demonstrate commitment to victims by teaming up with international partners to work to overcome the challenges. Also, trials at – or close to – home can have more impact and resonance than trials in distant courthouses.

Trying war crimes and crimes against humanity in the Central African Republic will not be easy. The court will need to manage security challenges—armed groups still control large parts of the country and violence has recently resurfaced in the capital, Bangui. The court also needs far more funding from donors to succeed.

The court has made important progress. Key staff – including the special prosecutor, chief registrar, investigators, and judges – are now in place and working out of make-shift premises in Bangui. Outreach about the court’s work with local communities has begun. If the court can conduct credible prosecutions of atrocities, it would represent a major break from the country’s troubled history of violence driven by impunity.

The SCC will also operate alongside the International Criminal Court (ICC). The ICC has two investigations in the Central African Republic, which were referred by the government, and is likely to prosecute a few highest-level perpetrators.

The SCC will not be a cure for all that ails the Central African Republic, but it could help put the country on the right track. Lack of justice is fueling further crimes there, as it has in many different countries. To achieve lasting peace, accountability for the many grave international crimes that civilians suffered is crucial. 

Governments across the globe who need to grapple with grave crimes committed in their countries should see the SCC as a model they can explore to hold their perpetrators to account.

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

French President Emmanuel Macron delivers a speech before a debate on the Future of Europe at the European Parliament in Strasbourg, France, April 17, 2018.

© 2018 REUTERS/Vincent Kessler
Among media analysts and academics, there is a widespread belief that one man, President Emmanuel Macron of France, can stem the tide of radical right populism in Europe. Macron burnished his credentials as the continent’s leading defender of liberal democracy in a major speech at the European Parliament on April 17. His central message was to respond to the populists’ rise not with “authoritarian democracy, but the authority of democracy.”

The challenges are real: Established center-left parties are in decline across the continent, hitting historic lows in elections in the Netherlands last year and polls in Germany in February, and seeing their vote share halved in Italy in March.

The most electorally successful center-right parties, in the Netherlands and Austria for example, seem to be offering a sanitized and politically opportunistic version of radical right populism. These centrists claim to offer a responsible alternative on immigration, yet their rhetoric and politics play on and stoke the same fears about migration and terrorism that the far-right has so skillfully exploited.

By this summer, radical right populists could be in power outright or acting as coalition kingmakers in a contiguous belt across the European Union stretching from Poland in the north, through the Czech Republic, Slovakia, Hungary, and Austria, to Italy in the south. The rise of these parties poses a threat to basic human rights — particularly those that protect vilified minorities — and to democratic institutions themselves.

The May 12 stabbing attack in Paris, now being treated as a terrorism incident, is a reminder that the French authorities have a tough task keeping people safe. Keeping people safe, however, shouldn’t be an excuse for undermining rights.

Democratic governments’ human rights credentials are tested by how they defend seemingly abstract principles like the rule of law and checks and balances in the face of populists’ calls to abandon them in the name of public safety. Macron’s triumph over Marine Le Pen in the May 2017 presidential election appeared to offer a genuine and, above all, popular alternative to xenophobic populists in France and beyond. By labelling Le Pen the “high priestess of fear” in a televised debate, Macron conveyed to the French public that he stood for a different sort of politics.

Macron deserves credit for defending the European Union’s founding values from those EU governments that seem happy to undermine democratic institutions, human rights, and the rule of law. He has publicly criticized the governments of Poland and Hungary for eroding judicial independence and seeking to mute critical voices in society. But if Macron’s defense of European values is to be credible, he needs to ensure that his actions at home uphold those values unequivocally.

One year after Macron’s election victory, his record at home is decidedly mixed when it comes to respect for human rights and key democratic principles. France’s draft migration law, which passed through the National Assembly on April 22, is an example of Macron praising Germany’s progressive refugee policy, but then doing something altogether more draconian at home.

The draft law doubles the maximum period of administrative detention for foreign nationals facing deportation from 45 to 90 days, contrary to a clear recommendation from the official French detention oversight body. In fact, this provision appears to be pure political posturing; data from nongovernmental organizations show that in 2016, deportations were carried out on average after 12 days of detention.

The law permits the detention of children awaiting deportation, despite repeated criticism of France’s record on this issue by the European Court of Human Rights. And it seriously restricts appeal rights for asylum-seekers, while reopening the possibility of deporting people who still have appeals pending, which thankfully has not been possible since 2015.

There has been a minor rebellion within Macron’s own party, En Marche!, with a handful of Parliament members abstaining and defying the party line. But the draft law passed by 228 to 139, with 24 abstentions, and will soon head to the Senate.

This law passed the same weekend that far-right activists launched a publicity stunt in the Alps. They chartered helicopters and sent patrols to stop migrants trying to enter France from Italy through the mountains. Rather than standing up to ill-informed xenophobic vigilantism, the draft law plays into their hands, making their fears seem legitimate.

Macron’s tough line on migration is perhaps epitomized best by Richard Ferrand, his party’s leader in the National Assembly, who exclaimed: “You can’t make an omelet without breaking some eggs. And if some eggs need to be broken, I’ll do it.” The message from the top seems to be: Yes, children may be locked up and some people may be deported unfairly, but this is what getting tough requires.

In the long game against far-right populists, however, this kind of “getting tough” is counterproductive. It legitimizes their grievances, because it treats migrants’ rights as a bargaining chip and abandons long-established principles such as the right to appeal government decisions through the courts.

When it comes to terrorism, Macron’s legislative record is similar. France’s new anti-terrorism law entered into force on Nov. 1, 2017, formally ending the state of emergency that had lasted almost two years after the Paris attacks in November 2015.

During those two years, the normal rule of law was suspended in the name of fighting terrorism, and French security forces responded disproportionately with widespread abuses. They conducted over 4,000 searches, many without warrants, issued more than 700 “assigned residence” orders placing people suspected of terrorism links under house arrest or curfew-like conditions, summarily closed places of worship, and imposed restrictions on peaceful protest. Research by Human Rights Watch and other groups shows that many of those heavy-handed practices targeted and stigmatized Muslim communities.

Although France suspended its commitment to some of the rights enshrined in the European Convention on Human Rights during that period, Macron gave a speech to the European Court of Human Rights on the eve of the new law entering force, assuring his critics that the new law would restore the rule of law. But it hasn’t.

In fact, the new law enshrines in ordinary criminal and administrative law many of the state of emergency’s exceptional powers and practices. It includes extremely vague language allowing local police prefects to order the closure of a place of worship — a power thus far used exclusively against mosques or Muslim prayer groups — and a vaguely worded power to search people without a warrant within a six-mile radius of ports, airports, and international train stations. These measures risk exacerbating existing divisions and mistrust, particularly among already stigmatized Muslim and migrant communities. Human Rights Watch’s research has shown that France’s law enforcement authorities have a longstanding problem with ethnic and racial discrimination in their identity checks, particularly in economically disadvantaged areas.

Shoring up the rule of law against an attack from populists should not entail ripping up the rulebook, or radically rewriting it. Rather than passing laws and policies that undermine rights and exacerbate division, Macron’s government should address the inequalities that help drive support for the National Front’s simplistic solutions.

Odd as it may sound, given all the talk of populists making the most of the people’s distrust of elites, it’s worth paying attention to what the economists at the World Bank have to say. Their report, released in March, recognizes the growing inequality within Europe and calls for greater inclusion of people left behind by technological progress.

Macron has announced some reforms that could address social exclusion and lack of upward mobility, but his plans to tackle poverty and deprivation in the banlieues (France’s primarily working-class and lower-middle-class suburbs), through improved return-to-work schemes for unemployed people, and to shake up France’s creaking social housing system are still in their early stages.

So far, leading anti-poverty and anti-homelessness charities are concerned that Macron’s social policy reforms are taking France in the wrong direction. His government appears to be increasing the pinch on pensioners and others with low incomes. Macron’s government reduced the housing support benefitthat an estimated 10 percent of people in France rely on — a move that is unlikely to convince voters that he wants to improve economic and social rights for all. Macron may also be learning that labeling those left behind by technological progress and those who object to his labor and welfare policy choices as “slackers” does not help his case.

There is also the question of racism, which state statisticians and mainstream French political commentators would prefer to ignore. Nevertheless, the uncomfortable fact remains: Young people from ethnic minority backgrounds experience persistent discrimination at the hands of the police, and their life chances are limited by having the wrong name or growing up in the wrong area. Improving schools and facilitating access to the job market for young people — regardless of race or religion — could help promote social integration in deprived areas and prevent the social division that populists willingly exploit. A recent wide-ranging report into urban deprivation commissioned by Macron late last year and published by veteran politician Jean-Louis Borloo this April paints a devastating picture on youth unemployment, inadequate services, and discrimination in the banlieues. Mayors of these urban areas by and large welcomed its findings, but the government’s response has so far been lukewarm.

Macron’s defeat of Le Pen last year created the potential for a bulwark against radical right populism in Europe. But his “get tough” legislative agenda risks playing directly into the populists’ hands by borrowing from their nativist rhetoric and reactionary policy toolkit to address the very fears they stoke.

If he is to present a real alternative, Macron should first confront some of his own government’s deeply flawed policies on immigration, counterterrorism, and integration. Above all, Macron should stand up for human rights principles and address the fear, abuse, and unfairness that drive voters into the arms of radical right populists.

That pluralist vision is where the authority of democracy lies.

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

Until now, how has the justice system in the Central African Republic tried to deal with cases surrounding the conflict?

No one has been prosecuted for war crimes and crimes against humanity in the Central African Republic. Lack of justice has fueled further crimes. When no one is prosecuted for killings, rape or attacks, perpetrators believe they can commit war crimes without consequence.

Given the years of conflict, it is perhaps not surprising that the Central African Republic’s justice system is weak and extremely under-resourced. For several years it was not able to convene any criminal sessions, let alone attempt to try cases involving war crimes and crimes against humanity. Such cases tend to involve numerous underlying incidents, complicated legal issues, and are highly sensitive.

How does the Special Criminal Court (SCC) operate? Why is it novel?

This SCC is unusual because it is based within the Central African Republic’s justice system even while it has international staffing and support. It includes international and domestic judges, prosecutors, and administrators. The court has a 5-year renewable mandate.

The court came about in 2015 after local authorities asked the United Nations for assistance in trying international crimes and the then transitional government passed legislation to create it. This set-up positions the court to deliver justice for crimes in the country, leveraging international experience and maximizing domestic relevance. When possible, the delivery of justice at home has greater potential to have impact with the communities most affected by the crimes, and the SCC could be a valuable model for other countries looking to ensure accountability for grave crimes.

The International Criminal Court (ICC) is also conducting two investigations in the country, because the Central African Republic government sought the involvement of the ICC. The ICC and SCC will complement each other’s prosecutions. The ICC focuses on those at the highest levels of responsibility and generally pursues only a small number of cases due to its limited mandate and resources.

What struck you as you spoke to people in Bangui about the SCC?

When I was in Bangui last year, I spoke to several victims of crimes committed during the conflicts, activists and justice practitioners. I was struck by how strong the desire for justice was among everyone I spoke to so that the Central African Republic can break from its past. There was a strong concern among people I spoke with that today’s victims will become tomorrow’s perpetrators if action is not taken to break the cycles of violence and if people don’t pay for their crimes. Their focus was more often on why the court has not started operating more quickly, not whether the court is needed.

Participants pose with a banner commemorating an outreach workshop on the Special Criminal Court in Bossangoa, Ouham Prefecture, in the Central African Republic on October 30, 2017. 

© 2017 Special Criminal Court

At the same time, some activists were concerned that not enough information had been made available about the court to the public, and more outreach was necessary to create awareness of the Special Criminal Court. Since then, the UN has conducted a series of events to increase awareness, efforts that will need to be continued.

The country is still wracked by violence. How can the court work effectively in such an environment?

There is no question that adequate security for victims, witnesses and court staff will be essential for the court to succeed. And ensuring this security is a huge challenge. Much of the country is under the control of different armed groups, and we have seen resurgence of violence even in Bangui this month. MINUSCA, the UN peacekeeping mission in the Central African Republic, is in charge of ensuring security for the Special Criminal Court. It is important that they have the necessary staffing and resources so that they can achieve this task. Even so, security will be an ongoing issue that needs to be constantly evaluated.

Parliamentarians in the Central African Republic are working to bring back the country from the devastation caused by the crisis. Why should they prioritize the Special Criminal Court now?

The recent violence in Bangui – where for example, combatants attacked a church service, killing 16 -- goes to the heart of the need to start a new chapter for the Central African Republic that includes justice. We have seen in the Central African Republic, as well as in many countries around the world, that a lack of justice tends to fuel more violence. By contrast, prosecuting perpetrators sends a signal that such abuses will not be tolerated, thereby building respect for the rule of law.

The rules for the Special Criminal Court were submitted for adoption by parliament this week. We urge parliament to enact them into law without delay so that investigations and prosecutions can formally begin as soon as possible.

Displaced people at the main camp in Batangafo, Ouham province, August 2015. 

© 2015 William Daniels/Panos Pictures

What is key for the court to operate effectively?

It’s still early days, but we have seen lots of progress in the appointment of judges, prosecutors, investigators, chief registrar and other staff this year. The court had a very slow start after its founding in 2015, but now it has gained momentum. The staff have begun work in a makeshift building until renovations of the permanent premises are completed, the rules are drafted and outreach events with the public are being conducted.  This is a significant development.

It is also encouraging to see that the legal community and activists are tracking the court’s development and have offered detailed input on strengthening the court’s rules. This kind of engagement can strengthen the prospects for the court’s local impact.

But if this court is to succeed it will need much more from international partners. Importantly, most of the court’s budget is unfunded at this point. The court relies on voluntary contributions, meaning that donors have to step up. We are looking to governments like the US, Netherlands, and France, which have already contributed, and to other donors like the European Union, Canada, Japan, Germany, and others committed to justice for atrocities, to support this institution.

The UN is providing crucial financial, logistical, and administrative support to the court and this will need to be continued and even increased. The desire to shift the landscape in the Central African Republic towards justice and accountability is clear, and the international community should heed this call by giving the SCC all the backing it needs to succeed.

How will victims participate in the court’s system?

Victims can be “civil parties” at the court, which means they can act alongside the prosecutor and defense counsel on cases. For example, they can request steps in the investigation and examine witnesses through their legal representative, as opposed to solely acting as witnesses. The opportunity to be civil parties puts victims at the center of the judicial process.

That said, without sufficient funding for this court, victims will not be able to bring their cases forward. People in the Central African Republic have waited far too long to see trials for grave crimes in their country. The SCC offers the chance for victims to at long last have the chance to see a measure of justice done.

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

Congolese Special Prosecutor Toussaint Muntazini (R) and the five other judges of the Special Criminal Court (SCC)—which is to investigate and prosecute crimes against humanity and war crimes committed in the Central African Republic since 2003—sit at the National Assembly in Bangui, having been sworn in on June 30, 2017. 

© 2017 Saber Jendoubi/AFP/Getty Images

(Nairobi) – Recent violence in the Central African Republic makes the country’s new Special Criminal Court especially important as a means to offer justice to victims of brutal crimes committed during the country’s conflicts, Human Rights Watch said today. A new report by Human Rights Watch finds that the court will need more support from the United Nations and government donors to prosecute grave crimes, including widespread killings, rape and sexual violence, and destruction of homes.

The 32-page report, “‘Looking for Justice’: The Special Criminal Court, a New Opportunity for Victims in the Central African Republic,” discusses the progress, obstacles, and challenges for the Special Criminal Court in its initial phases. Based on regular observation of the court and interviews with victim representatives, activists, court staff, UN representatives, donors, and government officials, Human Rights Watch offers observations on the current stage of the court’s development.

“There has been almost no justice for the most serious crimes committed in the Central African Republic in recent years, and this impunity fuels more abuses,” said Elise Keppler, associate international justice director at Human Rights Watch. “The Special Criminal Court is an unprecedented effort to help deliver justice for the gravest crimes, but international partners need to provide greater political and financial backing for it to succeed.”

Participants pose with a banner commemorating an outreach workshop on the Special Criminal Court in Bossangoa, Ouham Prefecture, in the Central African Republic on October 30, 2017. 

© 2017 Special Criminal Court

Dozens of people have been killed in Bangui, the capital, in recent weeks, many of them civilians, as the violence threatens to ruin hard-fought gains toward stabilizing the city.

The Special Criminal Court offers a chance to deliver justice at a national level and could also serve as a model for other countries that are seeking to pursue justice for international crimes in their national systems.

Since 2017, the court has gained momentum with appointments of the special prosecutor, judges, investigators, and administrators. Rules to govern its operations have been drafted and the court has begun conducting outreach with the local population. But major challenges lie ahead. The court relies on voluntary contributions to operate, and the majority of funding for its five-year renewable mandate has yet to be secured.

Assuring security for court staff, and protection for victims and witnesses, will be difficult as violence persists across the country. There is no operational program of legal aid in the country for indigent defendants, and detention facilities are wholly inadequate. Central African investigators and administrators working at the Special Criminal Court lack experience with cases involving atrocity crimes, and the parliament still needs to adopt the rules for the court.

Over the course of research conducted since 2013, the desire to see those responsible for the violence held to account before courts of law has remained firm among victims, activists, and members of the legal community. Bruno, who works with a victims’ association and is himself a victim, told Human Rights Watch in late 2017, “People who should already be listed as criminals continue to commit crimes. Victims are looking for justice. They want to see the perpetrators and their accomplices held to account.” His name has been changed for his protection.

The Special Criminal Court, established by law in 2015, is integrated into the Central African Republic’s domestic judicial system, but staffed by both international and Central African judges, prosecutors, and administrators. The court has jurisdiction over serious crimes committed since 2003 and will operate alongside the International Criminal Court (ICC), which has two investigations into crimes committed in the country. The ICC is expected to prosecute only a small number of cases given its limited resources and mandate.

Victims have an important role at the Special Criminal Court. In addition to serving as potential witnesses, victims can join the criminal proceedings as civil parties (partie civile). A feature of civil law systems, civil parties serve as a formal party to the proceedings, alongside the prosecutor and the defendant. Civil parties generally may take measures such as making submissions to the case file, requesting an investigation or steps to advance an investigation, and examining witnesses.

“The Special Criminal Court has made important progress since 2017, and demand for this court is high in the Central African Republic,” Keppler said. “Justice for the gravest crimes is not a panacea, but credible trials can build respect for the rule of law and signal that those responsible for grave crimes can be held to account, marking a new chapter for the country.” 

Posted: January 1, 1970, 12:00 am

Summary

The establishment of the Special Criminal Court (SCC) in the Central African Republic is a significant, unprecedented initiative to deliver justice for victims of brutal crimes committed during conflicts there since 2003. The court, established by law in 2015, is integrated into the Central African Republic’s domestic judicial system, but staffed by both international and Central African judges, prosecutors, and administrators.

Together with the International Criminal Court (ICC), which has two investigations into crimes committed in the country, the SCC is a significant opportunity to end the widespread impunity that victims of the cycles of violence in the Central African Republic have faced. By delivering justice at a national level, the SCC offers a chance to increase the resonance of trials with victims and others most affected by the crimes, and to bolster domestic ownership and capacity in the delivery of justice for atrocity crimes. The SCC may also serve as a potential model for other countries that are seeking to pursue justice for international crimes in their national systems.

While creating an avenue for justice for the gravest crimes cannot solve the full range of complex problems the Central African Republic faces, experience suggests that continued abuses are being fueled by lack of accountability. By contrast, fair, credible trials of grave crimes can build respect for the rule of law, contributing to long-term stability, in combination with other factors.

This report discusses the progress, obstacles, and challenges for the SCC in its initial phases to date. It is not intended to provide a conclusive assessment of the court, but offers observations on the current stage of its development. The report updates developments at the court since the Human Rights Watch July 2017 report, Killing Without Consequence: War Crimes, Crimes Against Humanity and the Special Criminal Court in the Central African Republic.

The SCC has made important progress, especially in 2017, but continues to face intense challenges. While getting the court operational has taken longer than anticipated, it has involved important steps to protect the court’s credibility, independence, and impartiality.

Central African victims, activists, and justice practitioners reaffirmed a continued, urgent, and unequivocal demand for justice for war crimes and crimes against humanity that have been committed during Human Rights Watch’s research. International partners will need to provide strong political backing and financial support for this court to succeed, alongside support from the Central African authorities.

 

Recommendations

To the Government of the Central African Republic

  • Support the prompt adoption of the Rules of Procedure and Evidence of the Special Criminal Court so the court can move ahead with investigating and prosecuting crimes suffered by Central African victims.
  • Expedite and ensure the provision of work facilities for the investigators, magistrates, and SCC support staff, and residences for the SCC national magistrates and their families.
  • Expedite the renovation of the former Court of First Instance, which will serve as the Special Criminal Court premises.

To the Parliament

  • Adopt the Rules of Procedure and Evidence of the Special Criminal Court without delay once put before parliament.

To the United Nations Security Council

  • Closely follow and reauthorize continued strong MINUSCA support of the Special Criminal Court and other government efforts to prosecute those responsible for abuses in line with international fair trial standards.

To the UN Mission in the Central African Republic (MINUSCA)

  • Provide full-time security to national magistrates serving on the SCC.
  • Maintain and fully deliver on its mandate to the Special Criminal Court over time, particularly with respect to security, victim and witness protection and support, protection of the rights of the accused, and investigation of crimes.

To the United Nations Development Program

  • Maintain support for the Special Criminal Court as part of its joint project on the court.
  • As part of UNDP support to the court, ensure the recruitment of Central Africans to conduct SCC outreach and an active outreach program for the SCC in order to minimize misunderstanding and increase the impact of the court.

To the European Union, Governments of France, the Netherlands, the United States, and Canada, and Other Government Donors

  • Provide additional financial and political support to the Special Criminal Court to ensure it can implement its mandate to deliver justice for grave crimes committed.
  • Utilize the Special Criminal Court reference group, a group composed of states interested in the Special Criminal Court in New York, to galvanize continuous adequate financial support for the SCC.

To the International Criminal Court

  • Support effective prosecutions by the Special Criminal Court through sharing information on specific cases where possible.
  • Support the development of effective investigations and victim and witness protection and support by continuing to share experience with SCC staff.
  • Coordinate with the SCC on outreach programming to minimize confusion among the Central African population on the ICC and SCC and maximize the amount of outreach activities.

 

Methodology

This report is based on Human Rights Watch desk research, regular observation of developments at the Special Criminal Court, and research conducted in Bangui, the Central African Republic in October 2017. In Bangui, Human Rights Watch staff held 18 meetings, including group meetings, involving more than 35 individuals, on the Special Criminal Court’s work. This is in addition to attending a workshop on the court’s draft Rules of Procedure and Evidence. Interviewees included victims of brutal crimes committed during conflicts in the country since 2003 who are working with victim associations, local civil society representatives, lawyers, government officials, the court’s magistrates and administrative personnel, United Nations staff, International Criminal Court representatives, international non-governmental organization staff, and donors. Interviews were conducted in French or English, and material in this report reflects a synthesis of notes taken by two staff.

Follow-up interviews were conducted by phone and in person in New York, between October 2017 and March 2018. Some individuals interviewed wished to remain anonymous because they were not authorized to publicly discuss these issues and other names were withheld for security reasons. Generic descriptions of interviewees or pseudonyms are used throughout the report to respect the confidentiality of these sources.

 

I. Background

The Central African Republic’s current crisis began in late 2012, when mainly Muslim Seleka rebels ousted President Francois Bozizé and seized power through a campaign of violence and terror.[1] In late 2013, Christian and animist militias known as anti-balaka also began to organize counterattacks against the Seleka.[2] The anti-balaka had its roots as local self-defense groups that existed under Bozizé. The group frequently targeted Muslim civilians, associating all Muslims with the Seleka.

As the Seleka and anti-balaka fought each other and carried out increasingly brutal tit-for-tat attacks on those who they perceived as supporting their enemies, civilians were caught in the middle. Many Muslims fled, and with the mass departure of the country’s minority Muslim population, the anti-balaka turned on Christians and others they believed had opposed them or had sided with their Muslim neighbors. Over time, the anti-balaka turned on anyone in order to steal or loot.

In late 2013, the African Union (AU) peacekeeping mission was joined by French soldiers to restore order. Violence continued despite the AU and French troops, and in April 2014 the United Nations Security Council authorized a new peacekeeping mission called the Multidimensional Integrated Stabilization Mission in the Central African Republic, known by its French acronym, MINUSCA. The mission had a multi-pronged mandate: protecting civilians; facilitating humanitarian access; monitoring, investigating, and reporting on human rights abuses; and supporting the political transition. As of the most recent figures at writing, which were published in December 2017, MINUSCA had 10,246 troops and 2,020 police deployed in the country.[3]

In March 2016, after two years of an interim government, relatively peaceful elections were organized and Faustin-Archange Touadéra was sworn in as president. But violence and attacks against civilians have nevertheless continued, with Seleka factions and anti-balaka groups still controlling large swaths of the country, especially in the eastern and central regions.[4] In the second half of 2017, violence threatening civilians surged.[5]

 

II. Importance of the SCC for Victims in the Central African Republic

In the Central African Republic, the lack of accountability for crimes committed by government forces in the northeast, together with stark economic and social inequalities, contributed to the sense of frustration and anger that helped form the Seleka movement that overthrew Bozizé.[6] The current conflict has also been marked by near-total impunity. Both the Seleka and anti-balaka have suffered almost no price for committing atrocities, and targeting civilians has become a routine part of their military operations.[7] The lack of accountability when serious crimes are committed has led to further reprisal attacks by one group against the other, intensifying the violence and widening the sectarian divide.

In May 2015, national consultations, known as the Bangui Forum, made clear the Central African people’s strong interest in criminal justice for grave crimes committed, with a recommendation for the operationalization of the Special Criminal Court.[8] The SCC complements two ICC investigations into crimes committed in the Central African Republic.[9]

In 2017, the desire to see perpetrators held to account before courts of law remained unequivocal among victims, activists, and members of the legal community that Human Rights Watch interviewed in Bangui.

Bruno, a victim who works with an association of abuse victims of crimes, told Human Rights Watch:

People who should already be listed as criminals continue to commit crimes. We need an official operational court to dissuade people, and it is regrettable that we don’t have it. Victims are looking for justice. They want to see the perpetrators and their accomplices held to account. For me, justice is to face the perpetrators and know why it was done.[10]

Pierre, a representative of another victims’ association, told Human Rights Watch:

For many decades, this country has known many crimes that have never been judged. Today’s perpetrators are yesterday’s victims. We have no confidence in the national justice system. The Special Criminal Court gives us a chance to start from zero and improve the climate.[11]

Henri, a representative of another victims’ association, said:

Victims want justice to be done and reparation offered so they can rebuild their lives. They want the authors of the crimes to be brought before justice.[12]

The question most prominent in the minds of some of the victims’ association representatives who spoke with Human Rights Watch was not whether the Special Criminal Court was needed, but rather why it is taking so much time to become operational.[13] They noted that the abuses continue, and the number of victims continue to multiply while justice has yet to be delivered. One victim who works with an association of victims, Bernard, told Human Rights Watch: “We need the Special Criminal Court to be rapidly installed.”[14]

Some of the victim association representatives who spoke with Human Rights Watch also expressed concern that without credible judicial proceedings, there is a greater risk of vigilante justice rendered by mobs, and the likelihood the evidence will be lost.[15]

Members of the Central African human rights and legal community who spoke with Human Rights Watch also stressed the vital need for the Special Criminal Court and frustration that the court has yet to become functional.[16] A lawyer who works with victims of atrocities committed in the country told Human Rights Watch that justice and reparations will help to put an end to human rights abuses.[17]

Central African practitioners working at the Special Criminal Court told Human Rights Watch of the need for justice for the crimes. One practitioner told Human Rights Watch: “We are all victims here. Every one of us has been affected. We want to contribute to the fight against impunity to help bring peace. We want to discourage the tormentors.”[18]

Western diplomats based in Bangui reinforced the importance of accountability efforts, sharing their analysis that impunity for abuses is at the heart of the continued challenges the country faces.[19]

Some Central African lawyers are working as a collective, with the assistance of the International Federation of Human Rights, to assist victims in accessing justice. These lawyers talked to Human Rights Watch about their interest in assisting victims to assure accountability. Robert, one of the lawyers, said: “One can contribute to justice, establishing the truth, and holding those culpable to account.”[20] Jean, another lawyer who is working to assist victims in judicial proceedings, said:

The Special Criminal Court is an opportunity for Central Africans. We hope that judgment of these matters in the Special Criminal Court can be a curb on impunity, because soon there will be a generation that grew up in this crisis, and the executioners must be stopped. The crimes were too much. We have had thousands killed. They have killed people like we have never seen. We need to hold the perpetrators accountable. We hope this has an educational character. People will learn that actions have consequences.[21]

Lawyers conveyed the significance of the SCC as a national initiative. One lawyer told Human Rights Watch: “This is our justice. It’s a national jurisdiction, which has complementarity with the ICC investigations. The ICC will prosecute the big fish.”[22]

 

III. Progress at the SCC

In August 2014, the transitional government signed a Memorandum of Understanding with MINUSCA that outlined a hybrid judicial accountability mechanism to try crimes committed in the country. The Central African government requested the participation of international staff to strengthen the capacities of the national justice system and to protect the proposed court’s independence.[23]On April 22, 2015, the country’s interim parliament, the National Transitional Council, adopted a law to create the Special Criminal Court by a vast majority, and on June 3, 2015, Catherine Samba-Panza promulgated the law creating the SCC.

The National Transitional Council tasked the new court to try crimes committed during the recent crisis, as had been proposed by the transitional government, but also those committed since January 1, 2003.[24] The court’s mandate is to investigate and prosecute “grave violations of human rights and international humanitarian law committed on the territory of the Central African Republic since January 1st, 2003, as defined by the Central African criminal code and under international law obligations of the Central African Republic, notably the crimes of genocide, crimes against humanity and war crimes.”[25]

The SCC is given primacy over the country’s ordinary national courts, meaning that the SCC has priority to select and try cases but ordinary courts can still try remaining cases of international crimes.[26] In addition, the law establishing the SCC foresees that if the ICC and the SCC work on the same case, priority will go to the ICC.[27] The SCC has a mandate of five years, which can be renewed.[28]

Victims have an important role in this court. In addition to serving as potential witnesses, victims can join the criminal proceedings as civil parties (partie civile). A feature of civil law systems, on which the Central African Republic system is based, civil parties serve as a formal party to the proceedings, alongside the prosecutor and the defendant. Civil parties may take measures such as making submissions to the case file, requesting that an investigation be initiated and that steps be taken to advance the investigation, and examining witnesses.

The opportunity for victims to become civil parties places victims more squarely at the center of the accountability process, and is relatively novel in proceedings involving international crimes.[29] Indigent victims who are civil parties at the SCC are entitled to a lawyer to represent them.[30]

The law establishing the court furthermore provides: “The Government is required to take all measures to provide the Special Criminal Court the means to accomplish this mission in the interest of the victims,” and that the government should ensure support for the preservation of court material during and after the court’s operations for the benefit of victims and the Central African population.[31]

After a period of stagnation, the SCC gained momentum during 2017, and many of the key staff are now appointed. This includes 11 international and national magistrates who are serving as prosecutors, investigating judges, and judges in the indictment chamber at the court, which largely follows a civil law system structure.[32]

On February 15, 2017, President Faustin-Archange Touadéra appointed the court’s chief international special prosecutor, Toussaint Muntazini Mukimapa, the former attorney general of the armed forces of the Democratic Republic of Congo.[33] On May 25, Prosecutor Muntazini arrived in the Central African Republic to begin work.[34]

On April 11, 2017, Minister of Justice Flavien Mbata announced the appointment of Adelaïde Dembelé, from Burkina Faso, and Emmanuelle Ducos, from France, to serve as international investigating judges at the court.[35]

On May 5, President Touadéra announced the appointment of five national magistrates to serve at the court: Alain Ouaby-Bekaï, as the deputy national special prosecutor; Alain Tolmo, as the substitute[36] national special prosecutor; Patience Guerengbo and Michel Ngokpou as national investigating judges; and Jacob Sanny-Damili as a national judge in the court’s indictment chamber.[37]

On June 6, President Touadéra nominated Dieudonné Detchou from Canada as the substitute international special prosecutor.[38] On January 8, 2018 Koffi Kumelio A. Afanđe, from Togo, and Bernadette Houndékandji-Codjovi, from Benin, were nominated to serve as international judges in the indictment chamber, marking the last nominations of international judicial posts needed for the court’s first phase of operations.[39]

Several important administrative posts at the SCC have now been appointed as well, including Central African Republic’s Dieudonné Selego, who will serve as the court’s registrar.[40]

Since 2015, the UN Security Council has mandated MINUSCA to support the operationalization of the Special Criminal Court. Among other things, the most recent Security Council resolution gives the peacekeeping mission the wide ranging tasks of providing:

technical assistance…in order to facilitate the functioning of the SCC, in particular in the areas of investigations, arrests, detention, criminal and forensic analysis, evidence collection and storage, recruitment and selection of personnel, court management, prosecution strategy and case development and the establishment of a legal aid system, as appropriate, as well as, to provide security for magistrates, including at the premises and proceedings of the SCC, and take measures for the protection of victims and witnesses.[41]

In 2016, the Security Council expanded the mission’s duties to include mobilizing bilateral and multilateral support for the court itself.[42] MINUSCA works together with UNDP to support the operationalization of the Special Criminal Court as part of a “joint project” on the court.[43]

MINUSCA staff have advanced a wide variety of initiatives for the court’s administration over the course of the last year. These include overseeing and recruiting consultants for the development of the draft Rules of Procedure and Evidence; a witness protection strategy, a detention strategy, an outreach strategy, and a draft memorandum of understanding between the SCC and the ICC.[44]

Central African lawyers have shown significant interest and engagement in the progress being made to operationalize the SCC. Members of the legal community were well represented at a two-day workshop convened by the United Nations and the Central African government in October on the draft rules and actively participated in lengthy debates on specific provisions, including related to the rights of victims at the court.[45] This type of engagement can contribute to the court’s positive impact over the long term.

Plans are underway for the Special Criminal Court premises to be located at the former Court of First Instance (Tribunal de Grande Instance), although renovations are still needed before it can be functional; these are expected to take until at least until the end of 2018 according to a UN source in the country. Until the renovations are completed, the court is using an apartment building in Bangui as a makeshift premises. The investigators and the prosecutor are expected to work out of the Commissariat Central as of June 2018, which has also undergone renovations.[46]

 

IV. Challenges Ahead

Despite these advances, the Special Criminal Court faces significant obstacles that will need to be addressed for the court to succeed. Prosecuting international crimes is difficult for even the most developed justice systems, while the Central African justice system is extremely weak and under-resourced, and the country faces continued violence and violations of human rights. Development of the justice system overall is needed and should be supported by international donors. This section, however, highlights the pending steps and major challenges ahead for the Special Criminal Court to start its investigations and prosecutions.

Rules of Procedure and Evidence

The SCC is yet to have rules of procedure and evidence, which are necessary for the court to proceed with any prosecutions. While there is some debate as to whether the rules could be properly adopted by the judges of the SCC or need to be adopted by parliament, consensus for their adoption by parliament emerged in 2017.[47] Members of the Central African legal community who spoke to Human Rights Watch suggested that rules that are not adopted by parliament would lack credibility and curtail a positive legacy for the court in the country.[48]

A key challenge is developing rules that are aligned both with international standards and practice and Central African criminal procedure. The role of the Special Criminal Court as a court within the national justice system should not be overlooked, according to Central African lawyers; the court’s impact will be limited if local practice and procedure is not integrated into the rules to the extent possible.[49] There also has been significant contention around key elements of the rules with respect to victims’ interests at the SCC, as discussed in the following section.

Several members of the Central African legal community expressed concern to Human Rights Watch that their initial input for the rules was insufficiently reflected in the draft text developed by international consultants and that consultations on the rules took place when the draft was too advanced.[50] At the same time, the drafters committed to make a number of revisions to the rules at the October 2 and 3 workshop to consider the draft rules.

The rules were to be submitted for approval during parliament’s last 2017 session. However, revisions and further consideration of them has taken longer than anticipated, and they are expected to be tabled for consideration during parliament’s session which began in March.

In early October, the director-general of the Ministry of Justice identified adoption of the rules by parliament as a priority, and committed to press for the swift adoption of the rules to the SCC.[51]

Victim Reparations

A major issue has been the type of reparations the Special Criminal Court will have the authority to award victims of the crimes. During consultations on the draft rules, Central African lawyers raised concerns that the proposed language on the rules did not envision the possibility of individual reparations, or even collective reparations, and appeared to only permit the award of “symbolic” reparations, such as memorials.[52]

Reparations are a common feature of civil law systems, on which the Central African system is based.[53]Victims of crimes committed in the Central African Republic who are working with victim associations highlighted the importance of the opportunity to pursue reparations.[54] Lawyers argued that victims want reparations, that reparations are their right, and that victims will expect reparations.[55]

The question of reparations presents challenges. Central African officials indicate that the government has neither the capacity nor the willingness to pay reparations, while international partners have indicated they are not prepared to fund reparations.[56] Some Central African lawyers suggest that those convicted may have resources that could be utilized to satisfy a reparations award.[57] However, observers question whether any of the leading individuals implicated in the crimes have substantial resources.[58] Recent experience with the trial and conviction of former Chadian dictator Hissène Habré before the Extraordinary African Chambers in Senegal reinforces the difficulties of satisfying reparation awards where there is a lack of resources.[59]

The issue of judicial reparations sharpened in the Central African Republic with the International Criminal Court proceedings against Jean-Pierre Bemba, a former vice president of the Democratic Republic of Congo, who was convicted in March 2016 of crimes against humanity and war crimes committed in the Central African Republic in 2002 and 2003 by his troops.[60] The ICC is one of the first international courts with the authority to award reparations, and proceedings related to reparations in the Bemba case began in July 2016, but no decision on reparations has been issued yet.[61]

Human Rights Watch and other international and local civil society groups have highlighted the need to avoid foreclosing the opportunity for victims to receive reparations in the SCC rules.[62] As of January 2018, the rules had been updated to include the possibility of collective and individual reparations.[63]

Victim and Witness Protection and Support

Protection and support before, during, and after war crimes trials for victims and witnesses involved in the cases are crucial to ensuring their safety and well-being, and to fostering their involvement in proceedings. In the Central African Republic, there is little experience with such protection and support, and the risks for victims and witnesses involved with the Special Criminal Court could be high given the sensitive nature of cases, the location of the court in the country where the crimes were committed, and that armed groups continue to control parts of the country.[64]

Among representatives of victims’ associations Human Rights Watch interviewed, there is concern over how the court will protect witnesses and victims involved in the proceedings given the security risks.[65] Recent ministerial appointments of individuals believed to be implicated in abuses heightened these concerns.[66]

The law creating the Special Criminal Court and the draft Rules of Procedure and Evidence provide for measures to protect the witnesses and victims.[67] Since 2015, the Security Council also has explicitly authorized MINUSCA to “take measures for the protection of victims and witnesses.”[68]

An international practitioner has been appointed to lead witness protection at the SCC, and he will be joined by two additional international advisors and three Central African protection staff.[69] Consultants also have prepared a witness protection strategy for the SCC, although significant effort will still be needed to transform this strategy into a practical plan that can be implemented in the context of the Central African Republic.[70]

Important experience with victim and witness protection and support in cases involving grave crimes conducted in the country where the crimes were committed exists in Africa and should be drawn from as the Central African Republic moves ahead with the SCC’s cases.[71] Some components of such efforts, such as at the Special Court for Sierra Leone and the domestic trial of rapes committed in the Democratic Republic of Congo, include:

  • Initial assessment of concrete risk for individual victims and witnesses;
  • Use of pseudonyms and other measures to protect the identities of victims and witnesses from the public, including using closed sessions, as needed;
  • Having psychosocial counselors to support victims and witnesses, and ensuring referral of victims for medical care as needed;
  • Possible in-country relocation of at-risk victims and witnesses; and
  • Post-testimony follow up with victims and witnesses to assess continued risk, ensure provision of psychosocial and medical care, and to implement additional protection measures as needed.[72]

Security

Overall security of the premises and court staff is another major challenge for the Special Criminal Court. There are important questions on how to maintain security for investigations and trials in a country where conflict persists, large parts of the country remain under the control of armed groups, and abuses continue to be perpetrated.

Staff working at the SCC expressed concern about conducting effective investigations in this environment.[73] Central African civil society members also identified security as a top challenge for the SCC.[74]

MINUSCA is currently responsible for security for magistrates, including at the premises and proceedings of the court.[75] Armored vehicles provide security at the court’s temporary premises, and all of the international magistrates appointed to the SCC who have arrived in Bangui are benefitting from close protection by military escorts twenty-four hours per day.[76]

The situation has been more complicated for the national magistrates, who are serving in judicial and prosecutor posts at the court.[77] MINUSCA has indicated its willingness to provide close protection for all of the national magistrates, but the force has been unable to provide that protection due to logistical challenges related to the locations of their residences.[78]

The government, MINUSCA, and the national magistrates have proposed a solution for the longer-term: the national magistrates and their families will relocate to a building provided by the government where MINUSCA is prepared to offer close protection, in cooperation with national security forces.[79] However, it remains unclear when and whether the government will make this building available.[80] In the meantime, some of the magistrates and their families have relocated to areas where they are able to benefit from full-time security by MINUSCA and national security forces, and others were in the process of following suit as of February 2018.[81]

Fair Trials, Legal Representation, and Detention Facilities

Fair trials are required by international standards and are important to ensure war crimes prosecutions foster greater respect for the rule of law. The Special Criminal Court draft rules provide for protection of internationally accepted rights of the accused, including the presumption of innocence and the right to counsel. As discussed above, legal aid for indigent victims who are acting as civil parties and accused is also foreseen.

Arrangements to ensure these rights are protected in practice are yet to be determined and external support will be important to ensure the fairness of the proceedings. There is currently no operational regime of legal aid to ensure counsel for indigent accused or victims in the country, though a domestic law on legal aid is in development.[82] Local lawyers are also unlikely to have experience with defending individuals accused of the types of crimes under international law which will be prosecuted before the SCC.[83]

The detention infrastructure, and oversight, is also in shambles. Detention centers tend to be severely overcrowded and detainees often stay in pre-trial custody beyond the proscribed legal limits and with little evidence to justify their ongoing detention. Mass escapes have occurred.[84] Given the conditions of detention and prison facilities, UN staff are exploring creating temporary high-security detention cells within Camp de Roux and Ngaragba prison that can hold SCC suspects.[85] Measures to avoid pre-trial detention of suspects beyond legal limits will also be needed.

Staffing and Administration

While many staff appointments were made in 2017, key positions at the SCC remained vacant. This included the deputy registrar, which is an international post, and 20 judicial police officers, who will conduct investigations for the SCC.

The deputy registrar will play a major role in the overall functioning of the SCC. Traditionally, registrars in international and hybrid courts—including the Special Criminal Court—have far more responsibility than registrars in domestic courts. In the Central African Republic, registrars are focused on organizing court papers and hearings, and have generally worked with proceedings that last a maximum of 10 days.[86] Registrars in international and hybrid war crimes courts regularly oversee victim and witness protection and support, defense representation, and outreach for cases which last far longer, as will also be the case for the Special Criminal Court.

The SCC’s chief registrar, who is from the Central African Republic, has shown a strong interest in benefitting from training and sharing of best practice by international staff.[87] He will need extensive support from the deputy registrar, other registry staff, and MINUSCA to ensure the full range of registry responsibilities are adequately addressed. The deputy registrar post was yet to be filled at time of writing.

Appointments of the judicial police officers reinforced the need for vigilance in protecting the court’s independence, impartiality, and perceptions thereof. After a first round of appointments that were substantially different than those proposed by a committee organized for their selection, extensive consultations between MINUSCA, the Central African government, and donors took place.[88] Ultimately, the president annulled the appointments that were made, and appointments of the judicial police officers were sent back to the committee of selection for further consideration with an emphasis on greater attention to regional balance, religion, and gender of the officers.[89] The committee recommending candidates was also expanded to include two additional members from the donor community.[90]

On February 20, the president issued a decree nominating the 20 judicial police officers on the basis of the expanded committee’s reconsideration of candidates and their updated recommendations.[91]

The judicial police officers are unlikely to have any experience or training in investigating the types of international crimes which will be prosecuted. The UN organized a three-week training for these investigators, and additional training, mentorship, and investigative support from international experts will be essential.[92]

With respect to routine administration, SCC staff have faced basic technological problems due to basic deficiency in the country’s infrastructure. Internet connectivity was a significant problem for the magistrates when they first assumed their posts, although as of November 2017, basic internet connectivity had been achieved.[93] The Ministry of Justice is also understaffed, which limits their ability to respond quickly in taking steps to operationalize the court and also to offer assistance to the administration of the SCC.[94]

Outreach

Accumulated experience in the delivery of justice for serious crimes underscores the importance of proactive, deliberate efforts to inform victims and the larger population about the SCC.

Even in the best circumstances, the majority of alleged perpetrators are unlikely to be tried. It is essential to try to minimize misunderstandings that can fuel misperceptions and false expectations. Effective outreach initiatives can help achieve this and ensure that proceedings have maximum resonance with those that have been most affected by the crimes.[95]

Targeted outreach will also be important to ensure victims of crimes are aware they can apply to be civil parties, how to do so, and that they can have a legal representative. Availability of accurate information will also help against inflated expectations of acting as a civil party.

Central African civil society members place significant value on the need for outreach and in October 2017 told Human Rights Watch that there was a significant need for greater efforts to inform Central Africans about the court and what it intends to accomplish. “We have the impression that there is a deficit of knowledge about the Special Criminal Court at the interior of the country,” Robert, one civil society activist said.[96]“There is a problem of communication,” said another Central African civil society activist, Ali.[97]

Activists noted that outreach activities have been limited to Bangui and to elites, and this is a major concern.[98] Marie, a civil society activist, suggested to Human Rights Watch: “Even in Bangui, nobody knows about the Special Criminal Court, and victims, they do not know the court exists.”[99]

Civil society members also expressed a strong desire to be involved in assisting outreach on the SCC, and frustration that they had not been more integrated in the development of an outreach strategy.[100]While acknowledging that the UN convened initial discussions on outreach with civil society, activists indicated they would like further involvement in the outreach plans.[101]

UN staff working with the SCC have told Human Rights Watch that there is commitment to outreach on the SCC, noting that an outreach strategy has been prepared by a consultant. Initial outreach events had already occurred, such as an outreach event on July 17, 2017 in Bambari in which the ICC also participated, and events in November 2017 in Kaga Bandoro and Ouham Bossangoa.[102] Practical arrangements to conduct further outreach were underway and UN volunteers were being trained to conduct outreach.[103]

More recently, from January 22 to 26, 2018 MINUSCA’s Justice and Corrections Section and UNDP organized five workshops on SCC outreach with leaders of human rights and other civil society organizations, judicial actors, youth group leaders, women’s associations, and local journalists. One aim of the workshops was to identify individuals who may be well-placed to conduct SCC outreach activities, and who will be offered additional training to strengthen their skills and knowledge-base to conduct outreach in the following months.[104]

These are valuable steps as Central Africans should play a major role in conducting outreach on the SCC. They will be far better placed to appreciate the kinds of questions and concerns of the general population with respect to the SCC and to respond to them in ways that will resonate with the population.

Relationship with the ICC

In addition to conducting investigations and prosecutions,[105] particularly of those implicated in international crimes at the highest levels of responsibility, ICC involvement in the Central African Republic can help foster greater accountability at the national level.

Under what is known as the principle of complementarity, the ICC is a court of last resort, stepping in only where national authorities are unable or unwilling to try cases domestically. But even where the ICC has launched its own investigations, its officials and staff members can engage with national authorities to build capacity and political will to support additional prosecutions and investigations. Indeed, given that the ICC is likely to bring only a limited number of cases to trial in each situation country, its efforts to help spur national prosecutions could be an essential element in increasing the effect of the court and its long-term legacy.[106]

The ICC is not, and should not be, expected to function as a development agency, but there are a number of concrete ways in which the ICC can contribute to capacity building efforts, including by sharing expertise on international criminal law, investigations, and victim and witness protection and support with national professionals.[107] The ICC has already offered training to the SCC judges, committed to contribute to training of the SCC investigators, and assistance of this nature should be continued.[108]

The ICC should also take a proactive approach to encouraging an effective prosecution strategy by the SCC, including with assistance on specific cases where possible. This approach is consistent with ICC policy to: “provide national authorities with information collected by the Office that could be of assistance to their national proceedings, subject to the existence of a credible local system of protection for judges or witnesses, the integrity of domestic proceedings and other security caveats.”[109]

There will also be a need for the SCC and ICC to coordinate on outreach activities so their efforts are complementary and to minimize confusion of the roles of the two different institutions.[110]

In March 2018, the ICC prosecutor and Special Criminal Court special prosecutor exchanged letters on cooperation during a visit by the ICC’s prosecutor to Bangui. According to one ICC staff member, the letters are a “good start” for cooperation between the SCC and the ICC and provide all that would be included in a formal memorandum of understanding which may considered at a later stage, if deemed necessary.[111]

Funding

The financial situation of the SCC remains extremely challenging.[112] The SCC is dependent on voluntary and UN contributions, and its budget is complex because funds are made available from a patchwork of sources, some of which restrict the types of work that may be supported with the funding.[113]

Individual government donations to date have been made by the United States, France, and the Netherlands, and governments are also supporting the court by seconding magistrates and other practitioners to the court.[114] Support from the United Nations comes from MINUSCA and UNDP budgets, including budgets for both discretionary project funds and regular funding.[115]

According to documents from January 2018 prepared by UN staff, the SCC will require between US$10 and $13.3 million per year to operate over the next five years, which is a modest budget compared to a number of other war crimes courts.[116] For 2018, there is a funding gap of $5,100,104 out of an estimated budget of $10.7 million.[117] MINUSCA is expected to seek to allocate approximately $5 million to the SCC for its 2018-19 budget, which would make an important contribution to reducing the 2018 and 2019 funding gaps.[118] In addition, the European Union has expressed recent interest in potentially helping to fund the court.[119] If confirmed, the SCC could be able to cover more of its core functions such as payment of the judges’ salaries for the year 2018.[120] But some gaps in funding for 2018 expenses are still anticipated, and funding for 2019 and beyond has yet to be secured.[121]

States should step forward to ensure the SCC has all of the necessary funds to function effectively. Otherwise, the opportunity to deliver justice in a country where it is so needed and desired will be squandered.

Moreover, funding should be provided on a continuous sustained basis. Otherwise, court officials can be expected to have to spend substantial time fundraising instead of advancing the court’s core functions, as has happened with other war crimes courts.[122]

 

Acknowledgments

This report was researched by Elise Keppler, associate director in Human Rights Watch’s International Justice Program, and Lewis Mudge, senior researcher in the Africa division. It was written by Keppler, with contributions from Mudge.

Manon Dantin, Sebastian Dutz, and Marryum Kahloon, interns with the International Justice Program, provided research, fact-checking, and citation assistance.

The report was edited by Hilary Margolis, researcher in the Women’s Rights division; Akshaya Kumar, deputy United Nations director; Aisling Reidy, senior legal advisor; and Babatunde Olugboji, deputy program director.

Editorial assistance was provided by Anjelica Jarrett, associate in the International Justice Program. Layout and production were coordinated by Fitzroy Hepkins, administrative manager; and Jose Martinez, senior coordinator. Danielle Serres translated the report into French. Peter Huvos, French website editor, vetted the French translation, as well as Jim Wormington, researcher in the Africa division of Human Rights Watch.

Human Rights Watch thanks the individuals who spoke with us for this report, and the donors that funded this work.

 

[1] This background provides only a brief overview of developments; for a more in-depth discussion of the recent conflict, including detailed descriptions of Seleka and anti-balaka forces, see Human Rights Watch, Killing Without Consequence: War Crimes, Crimes Against Humanity and the Special Criminal Court in the Central African Republic (New York: Human Rights Watch, 2017), https://www.hrw.org/report/2017/07/05/killing-without-consequence/war-cr....

[2] The term “anti-balaka” means “anti-balles,” or bullet, from a Kalashnikov assault rifle.

[3] “MINUSCA Fact Sheet,” United Nations Peacekeeping, https://peacekeeping.un.org/en/mission/minusca (accessed February 5, 2018).

[4] See Human Rights Watch, Killing Without Consequence: War Crimes, Crimes Against Humanity and the Special Criminal Court in the Central African Republic, https://www.hrw.org/report/2017/07/05/killing-without-consequence/war-cr....

[5] Human Rights Watch documented killings by armed groups of at least 249 civilians between May 2017 and October 2017, mostly in the south central and southeastern parts of the country. “Central African Republic: Civilians Targeted as Violence Surges,” Human Rights Watch news release, October 27, 2017, https://www.hrw.org/news/2017/10/27/central-african-republic-civilians-t.... Human Rights Watch also documented 25 cases of rape by armed groups in Basse-Kotto province in May 2017, part of a pattern of systematic rape and sexual abuse of women and girls by armed groups over the past five years. Human Rights Watch, They Said We Are Their Slaves: Sexual Violence by Armed Groups in the Central African Republic (New York: Human Rights Watch, 2017), https://www.hrw.org/sites/default/files/report_pdf/car1017_web.pdf, p. 64.

[6] See Human Rights Watch, I Can Still Smell the Dead: The Forgotten Human Rights Crisis in the Central African Republic (New York: Human Rights Watch, 2013), https://www.hrw.org/report/2013/09/18/i-can-still-smell-dead/forgotten-h..., p. 164.

[7] See, for example, “Central African Republic: Armed Groups Target Civilians,” Human Rights Watch news release, May 2, 2017, https://www.hrw.org/news/2017/05/02/central-african-republic-armed-group... Human Rights Watch, “They Said We Are Their Slaves.” Rather than facing justice, the perpetrators of atrocities are too often rewarded for their unlawful conduct with promotions, including in the government and army—what some refer to as “the impunity bonus” (prime à l’impunité).

[8] UN Security Council, “Report of the Secretary-General on the Situation in the Central African Republic,” July 29, 2015, http://www.un.org/ga/search/view_doc.asp?symbol=S/2015/576 (accessed February 22, 2018), paras. 78-81.

[9] In December 2004, the Central African government referred the situation of grave crimes committed in the country during the political upheaval and Bozizé-lead coup in 2002 and 2003 to the ICC. In 2007, the ICC prosecutor announced the opening of a formal investigation into the situation. In May 2014, then-interim president Catherine Samba-Panza referred the situation in the Central African Republic since August 2012 to the ICC, and in September 2014, the prosecutor announced the opening of a second investigation.

[10] Human Rights Watch group interview with representatives of victims’ associations, Bangui, October 3, 2017.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Human Rights Watch group interview with civil society representatives, Bangui, October 4, 2017.

[17] Ibid.

[18] Human Rights Watch group interview with SCC staff, Bangui, October 6, 2017.

[19] Human Rights Watch interview with Western diplomat, Bangui, October 4, 2017, and Western diplomat, Bangui, October 5, 2017.

[20] Human Rights Watch group interview with Central African lawyers who are involved in a collective to provide legal representation to victims in judicial proceedings, Bangui, October 3, 2017.

[21] Ibid.

[22] Human Rights Watch group interview with Central African lawyers who are involved in a collective to provide legal representation to victims in judicial proceedings, Bangui, October 3, 2017.

[23] Human Rights Watch interview with staff member at Ministry of Justice, Bangui, June 15, 2016.

[24] The current conflict in the Central African Republic is not a stand-alone event. Violence wracked the country in the mid-2000s, with some of the same players still operating today. For more information, see Human Rights Watch, Central African Republic – State of Anarchy: Rebellion and Abuses Against Civilians, vol. 19, no. 14(A), September 2007, https://www.hrw.org/reports/2007/car0907/index.htm.

[25] Loi Organique, No. 15.003 portant création, organisation et fonctionnement de la cour pénale spéciale, June 3, 2015, https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/implementingLaws.x... (accessed February 6, 2018), art. 3.

[26] Ibid., arts. 3, 36.

[27] Ibid., art. 37.

[28] Ibid., art. 70.

[29] Most earlier international and hybrid accountability mechanisms did not allow civil parties, with the exception of the Extraordinary Chambers in the Courts of Cambodia. The more recent Extraordinary African Chambers in Senegal also allowed civil parties. The ICC does not allow civil parties, although the ICC does allow victims to act as “participants” in the proceedings, which involves some of the same roles. For further discussion of the role of civil parties and victim participation at the ICC, see Human Rights Center, UC Berkley School of Law, “The Victims’ Court?: A Study of 622 Victim Participants at the International Criminal Court” 2015, https://www.law.berkeley.edu/wp-content/uploads/2015/04/VP_report_2015_f... (accessed January 22, 2018); Human Rights Watch, Who Will Stand for Us?: Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond (New York: Human Rights Watch, 2017), https://www.hrw.org/report/2017/08/29/who-will-stand-us/victims-legal-re...; “Q&A: The Case of Hissène Habré before the Extraordinary African Chambers in Senegal,” Human Rights Watch news release, May 3, 2016, https://www.hrw.org/news/2016/05/03/qa-case-hissene-habre-extraordinary-....

[30] Loi Organique, No. 15.003 portant création, organisation et fonctionnement de la cour pénale spéciale, https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/implementingLaws.x..., art. 64.

[31] Ibid., art. 69.

[32] For an organigram of the court’s structure, see Cour Pénale Spéciale, “Organigramme de la Cour Pénale Spéciale,” http://cps-rca.cf/fr/organigramme-de-la-cour-penale-speciale (accessed March 23, 2018).

[33] See Lewis Mudge, “A Step Towards Justice in the Central African Republic,” Human Rights Watch news release, February 21, 2017, https://www.hrw.org/news/2017/02/21/step-toward-justice-central-african-... “Le Congolais Toussaint Muntazini Procureur de la Cour Pénale Spéciale de Centrafrique,” MINUSCA press release, February 15, 2017, https://minusca.unmissions.org/le-congolais-toussaint-muntazini-procureu... (accessed January 22, 2018).

[34] See “Update on the Operationalization of the Special Criminal Court,” January 2018, on file with Human Rights Watch.

[35] For more details on each of the magistrates appointed to date, see Cour Pénale Spéciale, “Nos Magistrats,” http://cps-rca.cf/fr/l-equipe-de-magistrats (accessed March 23, 2018). See also “Deux nouveaux magistrats pour siéger à la Cour Pénale Spéciale pour la Centrafrique,” MINUSCA press release, April 13, 2017, https://minusca.unmissions.org/deux-nouveaux-magistrats-pour-si%C3%A9ger... (accessed January 22, 2018); “Update on the Operationalization of the Special Criminal Court,” January 2018, on file with Human Rights Watch.

[36] The post of “substitute” special prosecutor is seen akin to a second deputy or an assistant special prosecutor according to a UN source. Human Rights Watch email correspondence with UN staff, New York, March 22 and 26, 2018.

[37] See “Cinq magistrats centrafricains nommés à la Cour pénale spéciale,” Journal de Bangui, May 8, 2017, http://www.journaldebangui.com/article.php?aid=12249 (accessed January 22, 2018); Cour Pénale Spéciale, “Nos Magistrats,” http://cps-rca.cf/fr/l-equipe-de-magistrats (accessed March 23, 2018).

[38] See “Le Substitut international nommé pour siéger à la Cour pénale Spéciale,” RJDH, June 10, 2017, http://rjdh.org/centrafrique-substitut-international-nomme-sieger-a-cour... (accessed January 22, 2018).

[39] “Update on the Operationalization of the Special Criminal Court,” January 2018, on file with Human Rights Watch.

[40] See “Bangui amorce la dernière phase d’opérationnalisation de la Cour Pénale Spéciale,” RJDH, April 26, 2017, https://rjdh.org/centrafrique-bangui-amorce-derniere-phase-doperationnal... (accessed January 22, 2018); “Update on the Operationalization of the Special Criminal Court,” January 2018, on file with Human Rights Watch.

[41] United Nations Security Council, Resolution 2387 (2017), S/RES/2387 (2017), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2387(2017) (accessed February 5, 2018), para. 43(e)(viii).

[42] Ibid., para. 43(e)(ix); United Nations Security Council, Resolution 2301 (2016), S/RES/2301 (2016), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2301(2016) (accessed February 5, 2018), para. 34(d)(viii).

[43] UNDP, MINUSCA, and Central African Republic, “Projet conjoint d’Appui à la Cour Pénale Spéciale de la République Centrafricaine,” on file with Human Rights Watch. The collaboration between UN agencies is pursuant to UN Secretary-General, “Decision No. 2012/13 Rule of Law Arrangements,” UN Interoffice Memorandum, September 11, 2012, http://www.refworld.org/docid/52ca7a2f4.html (accessed February 6, 2018). See also UNDP and DPKO, “Global Focal Point for Police, Justice & Corrections,” March 2017, http://www.undp.org/content/undp/en/home/librarypage/democratic-governan... (accessed February 6, 2018); see also United Nations Security Council, Resolution 2387 (2017), S/RES/2387 (2017), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2387(2017) (accessed February 5, 2018), para. 43(e)(viii).

[44] Human Rights Watch interview with UN staff, Bangui, October 4, 2017; “Update on the Operationalization of the Special Criminal Court,” January 2018, on file with Human Rights Watch.

[45] Workshop on the Draft Rules of Procedure and Evidence, Bangui, October 2 and 3, 2017, attended by Human Rights Watch researcher.

[46] “Update on the Operationalization of the Special Criminal Court,” January 2018, on file with Human Rights Watch.

[47] Discussions at Workshop on the Draft Rules of Procedure and Evidence, Bangui, October 2 and 3, 2017, attended by Human Rights Watch researcher; Human Rights Watch interview with SCC staff, Bangui, October 5, 2017. In addition, not all of the judges are appointed at this phase of the court’s operations. See Loi Organique, No. 15.003, portant création, organisation et fonctionnement de la cour pénale spéciale, https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/implementingLaws.x..., art. 71(1).

[48] Discussions at Workshop on the Draft Rules of Procedure and Evidence, Bangui, October 2 and 3, 2017, attended by Human Rights Watch researcher.

[49] Ibid.

[50] Human Rights Watch group interview with Central African civil society representatives, Bangui, October 4, 2017.

[51] Intervention at Workshop on the Draft Rules of Procedure and Evidence, Bangui, October 3, 2017, attended by Human Rights Watch researcher.

[52] Discussions at Workshop on the Draft Rules of Procedure and Evidence, Bangui, October 2 and 3, 2017, attended by Human Rights Watch researcher.

[53] Human Rights Watch group interview with Central African civil society representatives, Bangui, October 4, 2017; Human Rights Watch interview with SCC staff, Bangui, October 5, 2017; Discussions at Workshop on the Draft Rules of Procedure and Evidence, Bangui, October 2 and 3, 2017, attended by Human Rights Watch researcher. See also Avocats Sans Frontières, REDRESS, and FIDH, “Le droit à la réparation dans le Règlement de Procédure et de Preuve de la Cour Pénale Spéciale,” October 2017, http://www.asf.be/wp-content/uploads/2017/10/ASF-REDRESS-FIDH_CPS_Repara... (accessed January 23, 2018). See also Loi Portant Code De Procédure Pénale Centrafricain, No. 10.002, January 6, 2010, http://www.ilo.org/dyn/natlex/docs/SERIAL/88120/100660/F498635820/CAF-88... (accessed March 29, 2018), arts. 2-4.

[54] Human Rights Watch group interview with representatives of victims’ associations, Bangui, October 3, 2017.

[55] Human Rights Watch group interview with Central African lawyers involved in representing victims in legal proceedings, Bangui, October 3, 2017.

[56] Intervention by the director general of the Ministry of Justice at the Workshop on the Draft Rules of Procedure and Evidence, Bangui, October 3, 2017, attended by Human Rights Watch researcher.

[57] Human Rights Watch group interview with Central African lawyers involved in representing victims in legal proceedings, Bangui, October 3, 2017.

[58] Discussions at Workshop on the Draft Rules of Procedure and Evidence, Bangui, October 2 and 3, 2017, attended by Human Rights Watch researcher.

[59] Ibid. See also, for example, Ruth Maclean, “Hissène Habré Ordered to Pay Millions for Crimes Against Humanity in Chad,” Guardian, July 29, 2016,

https://www.theguardian.com/global-development/2016/jul/29/hissene-habre... (accessed January 23, 2018); “Senegal: Video of Chad Ex-Dictator’s Trial,” Human Rights Watch news release, December 6, 2017, https://www.hrw.org/news/2017/12/06/senegal-video-chad-ex-dictators-trial.

[60] See Géraldine Mattioli-Zeltner, “Dispatches: High-Profile ICC Warning to Commanders on Rape,” Human Rights Watch dispatch, March 21, 2016, https://www.hrw.org/news/2016/03/21/dispatches-high-profile-icc-warning-....

[61] The Prosecutor v. Jean-Pierre Bemba Gombo, International Criminal Court, ICC-01/05-01/08, Order Requesting Submissions Relevant to Reparations (Trial Chamber III), July 22, 2016,

https://www.icc-cpi.int/CourtRecords/CR2016_05353.PDF. See also FIDH, “‘All I Want is Reparation:’ Views of Victims of Sexual Violence About Reparation in the Bemba Case Before the International Criminal Court,” November 2017, https://www.fidh.org/IMG/pdf/rca705ang.pdf (accessed January 25, 2018).

[62] This is consistent with United Nations General Assembly, “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” Resolution 60/147, A/RES/60/147, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N05/496/42/PDF/N0549642.pd... (accessed February 22, 2017), arts. 11, 15. Several organizations with particular expertise on reparations offered more detailed written recommendations. See Avocats Sans Frontières, REDRESS, and FIDH, “Le droit à la réparation dans le Règlement de Procédure et de Preuve de la Cour Pénale Spéciale, October 2017, http://www.asf.be/wp-content/uploads/2017/10/ASF-REDRESS-FIDH_CPS_Repara...; Avocats San Frontières, “Commentaires Sur Le Projet De Règlement De Procédure Et De Preuve Cour Pénale Spéciale – République Centrafricaine (25 Septembre 2017),” October 12, 2017, on file with Human Rights Watch. Human Rights Watch has previously noted the right to reparations for survivors of sexual violence in conflict, both in the Central African Republic and elsewhere. See Human Rights Watch, “They Said We are Their Slaves,”  pp. 156-157; Human Rights Watch, “I Just Sit and Wait to Die”: Reparations for Survivors of Kenya’s 2007-2008 Post-Election Violence (New York: Human Rights Watch, 2016), https://www.hrw.org/report/2016/02/15/i-just-sit-and-wait-die/reparation....

[63] Human Rights Watch telephone interview with civil society representative, Bangui, January 19, 2018; Human Rights Watch interview with UN staff, New York, January 25, 2018.

[64] For example, Human Rights Watch has previously documented risks for survivors of sexual violence by armed groups in the Central African Republic and how a lack of victim and witness protection could deter survivors from accessing justice, including at the Special Criminal Court. See Human Rights Watch, “They Said We Are Their Slaves,” pp. 131-135, 145-146.

[65] Human Rights Watch group interview with representatives of victims’ associations, Bangui, October 3, 2017.

[66] Ibid.

[67] See Loi Organique, No. 15.003, art. 3; “Projet de règlement de procédure et de preuve – Cour pénale spéciale – République centrafricaine,” September 25, 2017, arts. 131-134, on file with Human Rights Watch.

[68] In 2016, the Council also removed the caveat “as conditions allow” from this language, arguably expanding the scope of the UN’s obligations in this regard. See United Nations Security Council, Resolution 2217 (2015), S/RES/2217 (2015), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2217(2015) (accessed February 5, 2018), para. 32(g)(ii); United Nations Security Council, Resolution 2301 (2016), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2301(2016) (accessed February 5, 2018), para. 34(d)(vii); United Nations Security Council, Resolution 2387 (2017), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2387(2017) (accessed February 5, 2018), para. 43(e)(viii).

[69] Human Rights Watch interview with SCC staff, Bangui, October 6, 2017.

[70] Human Rights Watch interview with UN staff, Bangui, October 4, 2017; Draft Witness Protection Strategy, on file with Human Rights Watch.

[71] See, for example, Human Rights Watch, Justice on Trial: Lessons from the Minova Rape Case in the Democratic Republic of Congo (New York: Human Rights Watch, 2015), https://www.hrw.org/sites/default/files/report_pdf/drc1015_4up_0.pdf; Sierra Leone−Justice in Motion: The Trial Phase of the Special Court for Sierra Leone (New York: Human Rights Watch, 2005), https://www.hrw.org/report/2005/11/02/justice-motion/trial-phase-special..., section V.

[72] Ibid.

[73] Human Rights Watch interview with SCC staff, Bangui, October 5, 2017.

[74] Human Rights Watch group interview with Central African civil society members, Bangui, October 4, 2017.

[75] Human Rights Watch group interview with SCC staff, Bangui, October 6, 2017. See also United Nations Security Council, Resolution 2387 (2017), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2387(2017) (accessed February 5, 2018), para. 43(e)(viii).

[76] Human Rights Watch interview with UN staff, Bangui, October 4, 2017; Human Rights Watch interview with SCC staff, Bangui, October 5, 2017.

[77] Human Rights Watch interview with SCC staff, Bangui, October 5, 2017; Human Rights Watch group interview with SCC staff, Bangui, October 6, 2017.

[78] Human Rights Watch interview with UN staff, Bangui, October 4, 2017; Human Rights Watch group interview with SCC staff, Bangui, October 6, 2017; Human Rights Watch interview with UN staff, Bangui, October 6, 2017.

[79] Human Rights Watch interview with SCC staff, Bangui, October 5, 2017; Human Rights Watch interviews with UN staff, Bangui, October 4 and October 6, 2017.

[80] Human Rights Watch interview with UN staff, Bangui, October 4 and October 6, 2017; Human Rights Watch exchange with UN staff, Bangui, February 2018; Human Rights Watch email exchange with UN staff, New York, May 2, 2018.

[81] Human Rights Watch exchange with UN staff, Bangui, February 2018. MINUSCA had also agreed to escort the national magistrates to and from their residences to the current SCC premises from a group assembly point daily until the proposed building provided by the government for their relocation is available. UN representatives acknowledged the importance of identifying better solutions to providing security for the national magistrates. Human Rights Watch separate interviews with UN staff, October 6, 2017, and UN staff, October 6, 2017.

[82] Human Rights Watch exchange with UN staff, Bangui, February 2018; Human Rights Watch telephone interview with civil society representative, Brussels, February 2, 2018; Human Rights Watch telephone interview with civil society representative, Bangui, February 7, 2018. See also International Legal Assistance Consortium, “ILAC Rapport d’évaluation de l’état de droit: République Centrafricaine,” 2017, http://www.ilacnet.org/wp-content/uploads/2017/05/ILACs-Rule-of-Law-Asse... (accessed February 5, 2018), p. 39; Avocats Sans Frontières, “L’aide légale en République centrafricaine: État des lieux,” September 2016, http://www.asf.be/wp-content/uploads/2016/12/ASF_CAR_AideL%C3%A9gale2016... (accessed February 5, 2018), pp. 25, 39; Human Rights Watch, “They Said We Are Their Slaves,” pp. 137-138.

[83] The arrangements for selection of counsel at the SCC and how they interact with the administration of the court and the Central African bar association has also been a matter of ongoing discussion, particularly among Central African lawyers. Discussions at Workshop on the Draft Rules of Procedure and Evidence, Bangui, October 2 and 3, 2017, attended by Human Rights Watch researcher; Human Rights Watch interview with UN staff, New York, January 25, 2018; Human Rights Watch exchange with UN staff, Bangui, February 2018; Human Rights Watch telephone interview with civil society representative, Bangui, February 7, 2018.

[84] Human Rights Watch interview with UN staff, October 6, 2017; “Central African Republic: New Spate of Senseless Deaths,” Human Rights Watch news release, October 22, 2015, https://www.hrw.org/news/2015/10/22/central-african-republic-new-spate-s.... Inability to ensure that those arrested for crimes committed during the conflict remain in custody has deterred some survivors of atrocities from seeking justice. See Human Rights Watch, “They Said We are Their Slaves,” p. 129.

[85] Human Rights Watch exchange with UN staff, Bangui, February 2018.

[86] Human Rights Watch interview with SCC staff, Bangui, October 5, 2017.

[87] Ibid.

[88] Human Rights Watch interview with SCC staff, Bangui, November 23, 2017; Human Rights Watch interview with UN staff, New York, January 25, 2018; Human Rights Watch interview with civil society representative, New York, December 16, 2018. See also Jules Crétios, “Centrafrique : la Cour pénale spéciale connaît ses premiers déboirs, JeuneAfrique, November 20, 2017, http://www.jeuneafrique.com/494234/societe/centrafrique-la-cour-penale-s... (accessed January 25, 2018). See also “RCA: le ministre de la Justice suspecté d’ingérence dans la Cour pénale spéciale,” RFI, November 18, 2017, http://www.rfi.fr/afrique/20171118-rca-cour-penale-speciale-bangui-minus... (accessed January 25, 2018); Decree 17344, October 6, 2017, on file with Human Rights Watch; Arrete Interministeriel No. 184, November 23, 2017, on file with Human Rights Watch.

[89] Arrete Interministeriel No. 184, November 23, 2017, on file with Human Rights Watch.

[90] Human Rights Watch email correspondence with UN official, Bangui, November 23, 2017; Human Rights Watch meeting with UN staff, New York, January 25, 2018.

[91] Decree 18.051, February 20, 2018, on file with Human Rights Watch.

[92] Human Rights Watch interview with SCC staff, Bangui, October 5, 2017.

[93] Ibid; Human Rights Watch group interview with SCC staff, Bangui, October 6, 2017; Human Rights Watch telephone interview with UN staff, New York, November 21, 2017.

[94] Human Rights Watch interview with UN staff, Bangui, October 4, 2017; Human Rights Watch interview with SCC staff, Bangui, October 6, 2017.

[95] See, for example, Human Rights Watch, Bosnia−Justice for Atrocity Crimes: Lessons of International Support for Trials before the State Court of Bosnia and Herzegovina (New York: Human Rights Watch, 2012), https://www.hrw.org/report/2012/03/12/justice-atrocity-crimes/lessons-in..., section V.

[96] Human Rights Watch group interview with Central African civil society members, Bangui, October 4, 2017.

[97] Ibid.

[98] Ibid.

[99] Ibid.

[100] Ibid.

[101] Ibid.

[102] Announcements on multiple outreach events are posted on the website of the Special Criminal Court. Cour Pénale Spéciale, “Atelier de Sensibilisation des Organisations de la Société Civile sur la Cour Pénale Spéciale” http://cps-rca.cf/fr/atelier-de-sensibilisation-des-organisations-de-la-... (accessed March 6, 2018). See also Human Rights Watch discussion with ICC representative, Bangui, October 6, 2017; MINUSCA, “Bambari accueille des représentants de la justice internationale,” July 18, 2017, https://www.youtube.com/watch?v=rOkA7QpPQMI (accessed January 25, 2018).

[103] Human Rights Watch interview with UN staff, October 4, 2017.

[104] Human Rights Watch email correspondence with UN staff, New York, January 31, 2018; Human Rights Watch exchange with UN staff, Bangui, February 2018.

[105] The ICC has two investigations in the Central African Republic, one focused on crimes committed during conflict in 2002 and 2003 and one focused on crimes committed since 2012. In the first investigation, a former vice president from the Democratic Republic of Congo, Jean-Pierre Bemba, has been tried and convicted of war crimes and crimes against humanity, and sentenced to 18 years in prison. No suspects have been charged in the second investigation to date. For more details on the ICC’s investigations, see Human Rights Watch, Killing Without Consequence: War Crimes, Crimes Against Humanity and the Special Criminal Court in the Central African Republic, pp. 79-80.

[106] See International Criminal Court, “Report of the Court on Complementarity,” ICC-ASP/10/23, November 11, 2011, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP10/ICC-ASP-10-23-ENG.pdf (accessed January 25, 2018).

[107] Ibid., para. 35.

[108] Human Rights Watch interview with UN staff, New York, January 25, 2018; Human Rights Watch email correspondence with UN staff, New York, January 31, 2018. See also “Statement by the Prosecutor of the International Criminal Court, Fatou Bensouda, at the Conclusion of Her Visit to the Central African Republic on Friday, 23 March: Collaboration is Key to Closing the Impunity Gap,” International Criminal Court, Office of the Prosecutor press release, March 27, 2018, https://www.icc-cpi.int/Pages/item.aspx?name=otp-statement-iraq-13-05-2014 (accessed April 5, 2018).

[109] International Criminal Court, Report of the Court on Complementarity, para. 35.

[110] Human Rights Watch discussion with ICC representative, Bangui, October 6, 2017.

[111] Human Rights Watch email exchange with ICC staff, The Hague, April 5, 2018.

[112] Human Rights Watch group interviews with UN staff, Bangui, October 4 and October 6, 2017.

[113] Human Rights Watch interview with UN staff, Bangui, October 6, 2017.

[114] Human Rights Watch interview with UN staff, Bangui, October 4, 2017.

[115] Human Rights Watch interview with UN staff, Bangui, October 4, 2017, and two interviews with UN staff, Bangui, October 6, 2017.

[116] “The Special Criminal Court of The Central African Republic: Funding Requirements,” January 2018, on file with Human Rights Watch; Human Rights Watch interview with UN staff, New York, January 25, 2018; see also Rupert Skilbeck, “Funding Justice: The Price of War Crimes Trials,” Human Rights Brief, vol. 15, no. 3 (2008),

http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1028&... (accessed January 22, 2018), pp. 6-10.

[117] “The Special Criminal Court of The Central African Republic: Funding Requirements,” January 2018, on file with Human Rights Watch.

[118] Human Rights Watch telephone interview with UN staff, New York, February 2, 2018.

[119] This information was updated on May 15, 2018. Human Rights Watch email exchange with UN staff, New York, April 5, 2018; Human Rights Watch email exchange with UN staff, New York, May 2, 2018.

[120] Ibid.

[121] Ibid.

[122] Human Rights Watch exchange with officials from the Special Court for Sierra Leone between 2006 and 2013.

Posted: January 1, 1970, 12:00 am

 A paramilitary unit controlled by then-Gambian president Yahya Jammeh summarily executed more than 50 Ghanaian, Nigerian, and other West African migrants in July 2005.

(Accra) – A paramilitary unit controlled by then-Gambian president Yahya Jammeh summarily executed more than 50 Ghanaian, Nigerian, and other West African migrants in July 2005, Human Rights Watch and TRIAL International said today.

Interviews with 30 former Gambian officials, including 11 officers directly involved in the incident, reveal that the migrants, who were bound for Europe but were suspected of being mercenaries intent on overthrowing Jammeh, were murdered after having been detained by Jammeh’s closest deputies in the army, navy, and police forces. The witnesses identified the “Junglers,” a notorious unit that took its orders directly from Jammeh, as those who carried out the killings.

“The West African migrants weren’t murdered by rogue elements, but by a paramilitary death squad taking orders from President Jammeh,” said Reed Brody, counsel at Human Rights Watch. “Jammeh’s subordinates then destroyed key evidence to prevent international investigators from learning the truth.”

Families of massacre victims, in Kumasi Ghana, April 2018.

© 2018 Reed Brody/HRW

Martin Kyere, the sole known Ghanaian survivor; the families of the disappeared; the family of Saul N’dow, another Ghanaian killed under Jammeh; and Ghanaian human rights organizations on May 16, 2018, called on the Ghanaian government to investigate the new evidence and potentially seek Jammeh’s extradition and prosecution in Ghana.

Jammeh’s 22-year rule was marked by widespread abuses, including forced disappearances, extrajudicial killings, and arbitrary detention. He sought exile in Equatorial Guinea in January 2017 after losing the December 2016 presidential election to Adama Barrow.

The insiders interviewed by TRIAL International and Human Rights Watch include some of the highest-ranking security commanders in the Gambian government at the time, as well as several officials present at the arrest, detention, and transfer of the migrants, a Jungler who witnessed the killings, and two who participated in a subsequent cover-up. Another Jungler who witnessed the killings was interviewed on the radio.

They said that the migrants – including some 44 Ghanaians and several Nigerians – were arrested in July 2005 at a beach where they had landed, then transferred to the Gambian Naval Headquarters in Banjul, the capital. They were detained there in the presence of the inspector general of police, the director general of the National Intelligence Agency (NIA), the chief of the defense staff, and the commander of the National Guards. At least two of them were in telephone contact with Jammeh during the operation. The head and several members of the paramilitary Junglers were also there.

The West African migrants weren’t murdered by rogue elements, but by a paramilitary death squad taking orders from President Jammeh.

Reed Brody

Senior Counsel

The officials divided the migrants into groups and then turned them over to the Junglers. Over one week, the Junglers summarily executed them near Banjul and along the Senegal-Gambia border near Jammeh’s hometown of Kanilai.

Kyere was detained in a Banjul police station, then driven into the forest. In February 2018, he explained to Human Rights Watch and TRIAL International how he escaped, just before other migrants were apparently killed.

“We were in the back of a pickup truck,” he said. “One man complained that the wires binding us were too tight and a soldier with a cutlass sliced him on the shoulder, cutting his arm, which bled profusely. It was then that I thought, ‘We’re going to die.’ But as the truck went deeper into the forest, I was able to get my hands free. I jumped out from the pickup and started to run into the forest. The soldiers shot toward me but I was able to hide. I then heard shots from the pickup and the cry, in Twi [Ghanaian language], ‘God save us!’”

Kyere helped the Ghanaian authorities identify many of the dead and travelled around Ghana to locate their families and promote efforts to seek justice.

Massacre survivor Martin Kyere at Accra cemetery where six bodies were returned from Gambia. 

© 2018 Bénédict De Moerloose/TRIAL International

Despite measures in ensuing years by Ghana as well as the Economic Community of West African States (ECOWAS) and the United Nations (UN) to investigate the case, no arrests have ever been made.

The Bulletin of the UN Department of Public Affairs said that an ECOWAS/UN report, never made public, concluded that the Gambian government was not “directly or indirectly complicit” in the deaths and disappearances but rather that “rogue elements” in Gambia’s security services “acting on their own” were probably responsible.

The new evidence makes clear, however, that those responsible for the killings were the Junglers, who were not rogue elements, but a disciplined unit operating under Jammeh.

In October 2017, Gambian and international rights groups, including Human Rights Watch, and TRIAL International, launched the “Campaign to Bring Yahya Jammeh and his Accomplices to Justice” (#Jammeh2Justice), which calls for prosecuting Jammeh and others who bear the greatest responsibility for his government’s crimes under international fair trial standards.

President Barrow of The Gambia has suggested that he would seek Jammeh’s extradition from Equatorial Guinea if his prosecution was recommended by the country’s Truth Reconciliation and Reparations Commission, which is expected to begin work in the next few months with an initial two-year mandate. The government and international activists and academics have said that the political, institutional and security conditions do not yet exist in The Gambia for a fair trial of Yahya Jammeh which would contribute to Gambia’s stability.

President Teodoro Obiang of Equatorial Guinea said in January that he would “analyze [any extradition request] with [his] lawyers.” A week later, however, he said “we have to protect him [Jammeh], we have to respect him as a former African head of state, because that is what is going to ensure that the other heads of state of Africa who have to leave power do not fear for subsequent harassment.”

The family of Peter Mensah, missing in Gambia. Akumadan, Ghana, April 2018.

Ghanaian groups noted that the UN Convention against Torture, which Equatorial Guinea has ratified, requires a country in whose territory a torture suspect is found to refer the case for investigation or extradite that person.

“Our investigation has enabled us to get closer to the truth about this horrible massacre,” said Benedict De Moerloose, head of Criminal Law and Investigations for TRIAL International. “The time has now come to deliver justice for the victims and their families."

For information about the Campaign to Bring Yahya Jammeh and his Accomplices to Justice, please visit:
https://www.facebook.com/Jammeh2Justice/

For details about the killings and the accounts of those interviewed, please see below.

The July 2005 killings

On July 22, 2005, Gambian police forces arrested approximately 50-56 foreigners in Barra, a town facing Banjul on the opposite shore of the River Gambia. It is difficult to determine the numbers with certainty but it appears the group included about 44 Ghanaians, as many as ten Nigerians, two or three Ivoirians, two Senegalese, and one Togolese. The detained men and women, as well as one additional Gambian who was later arrested, were believed to have been killed in the ensuing week and buried near Banjul and Kanilai. The disfigured bodies of eight of the migrants were found in Brufut, on the outskirts of Banjul, on July 23, the day after their capture. No other bodies have been recovered.

Between March 2017 and May 2018, Human Rights Watch and TRIAL International interviewed 30 former Gambian security officials both inside and outside of Gambia, including 11 officers directly involved in the incident, as well as Kyere, the survivor, another Ghanaian who left the group shortly before the original arrest, the families of 15 of the Ghanaian victims, and two of the Ghanaian investigators. The organizations also translated a long radio interview with a former Jungler, Bai Lowe.

The migrants – including two women – had set off from a beach in Saly Mbour in Senegal in a hired motorized canoe hoping to meet up with a boat that would take them to Europe. They were unable to make contact with the boat, however, and landed in Barra, where they were arrested on July 22 – “Revolution Day” celebrating Jammeh’s 1994 coup. “They lined us up, pointing guns at us, and marched us to the Barra police,” Kyere said.

Several officials interviewed said that Gambian intelligence had previously received information regarding a planned coup by mercenaries and may have mistaken the migrants for these mercenaries.

Jammeh and his ministers, the chiefs of Gambia’s security forces, and civilian dignitaries were attending a festival at the July 22 Square in Banjul. Several witnesses said that inspector general of police, Ousman Sonko – who is currently detained in Switzerland on charges of crimes against humanity – was at the ceremony and received a phone call that foreigners had been apprehended. Officers who were there said that Jammeh was informed and he got up and left with his security detail for his nearby compound.

Witnesses said that Sonko asked the Navy to transfer the group by boat from Barra to the Naval Headquarters in Banjul. The naval boat Fatima I had to make two trips. Kyere, who was on the second crossing, observed when they were reunited at headquarters that most of those on the first trip had been beaten and stripped of their possessions. One commander said that at least two of the high-ranking officials at the headquarters, Sonko and the National Intelligence Agency director, Daba Marenah, called Jammeh from the Naval Headquarters.

The head and several members of the Junglers, an unofficial paramilitary unit of about 12 to 25 soldiers drawn from the State Guard, were also at the Naval Headquarters. The Junglers took their name from the fact that some members had received jungle survivor training. They were also known as the “Patrol Team” because their original duties included patrolling the Gambia-Senegal border around the presidential residence in Kanilai. The State Guards from which the Junglers were drawn played a key role in protecting Jammeh, and they received frequent and intense training, from Iran, Libya and Taiwan, among others. From their creation in 2003-2004 until Jammeh’s fall in 2017, the Junglers were implicated in serious human rights violations, including torture, sexual violence, enforced disappearances, and killings.

Throughout the Junglers’ existence, Jammeh was in regular communication, often daily, with its leader, who at the time of the migrant killings was Tumbul Tamba. One former Jungler said Tamba received direct operational orders from Jammeh and would then convene the Junglers to brief them on the operation and to communicate Jammeh’s orders. “The big man said to ‘finish them,’” was how Tamba would convey orders to kill, said the former Jungler. “Tamba reported after every mission to the president.”

On July 23, the migrants were divided into groups and taken by buses to several locations around Banjul, including the Junglers’ unofficial headquarters, and several police stations and army barracks. Kyere said he was held at the Bundung Police Station. The police also arrested Lamin Tunkara, a Gambian who was working with the captain of the vessel which was to transport the migrants to Europe. Tunkara was later taken in the same pickup truck from which Kyere escaped into the forest. His family has never seen Tunkara again.

A first group of migrants was taken on July 23 from the Kanifing police station in two vehicles to Brufut, on the outskirts of Banjul. A former Jungler said that eight migrants were then executed by seven Junglers, assisted by several regular soldiers, with machetes, axes, knives, and sticks and left in the bushes near “Ghanatown” in Brufut. The migrants were handcuffed while they were slaughtered. A former police commissioner who arrived on the scene confirmed that the bodies had been badly beaten. “One had had his head smashed with something heavy…another had his face broken completely… [a third] had blood coming out of his ears, nose, eyes.” Two former Junglers said that the migrants were killed this way following a Jammeh directive issued after the 2004 murder of a journalist, Deyda Hydara, not to use guns in killings in Gambia. The discovery of eight dead bodies with cuts and trauma wounds was reported in the Gambian press.

Based on numerous accounts, two of the Ghanaian migrants in that first group escaped during this time and sought refuge in Ghanatown, but were turned over by local leaders to the police. They have not been heard from since.

The other migrants, probably about 45, were held for a longer period in several other places of detention around Banjul, apparently while further investigations were carried out. About a week later, various Junglers rounded them up and took them to the town of Kuloro, then took them in several pickup trucks and other vehicles toward Kanilai.

Just across Gambia’s southern border in the Casamance region of Senegal, in an operation overseen by Tamba, the Junglers’ head, two Junglers covered the heads of migrants in plastic and shot them. Since it was outside the Gambia, the Junglers could use their guns. These bodies were dumped in nearby wells, including one in an abandoned village in Senegal, and another near Jammeh’s compound in Kanilai. One of the Junglers involved told Human Rights Watch and TRIAL International that the wells were covered with stones. The area across the border had been used by the Junglers as a killing and dumping ground in at least two other cases.

Bai Lowe, one of the former Junglers, said in a radio interview:

Tumbul [head of the Junglers] said let the guys [the two Junglers] say, “We are going to kill you in the interest of our nation.” He said once the guys say that, then the boys are not responsible but The Gambia as a nation will be responsible...There are these old wells in the bush [in Senegal] belong to Fulas [a pastoralist ethnic group] where they fetch water for their cows. Two guys will just bring you to the well, execute you and throw you in the well. That is where I saw them use a pistol to kill…They will just put a plastic bag over your head, shoot you and throw you in the well...They killed up to 40 people.”

One of the migrants escaped at this point and was recaptured at Kankurang near Kanilai. According to Bai Lowe, the escapee was cut to death with a cutlass by another Jungler and his dismembered body was put in a plastic sack.

After these killings, Jammeh gave two bulls to the Naval Headquarters. A former inspector general of police who later investigated the case surmised to Human Rights Watch and TRIAL International that this was to thank the Navy for its “good work.”

Kyere said that he was loaded into the back of a white double-cabin pickup truck, along with seven other migrants. The truck went first on a highway, then on a dirt road and into a forest, where Kyere jumped from the truck. He spent days wandering in the forest before he came to a village in Senegal where he was given some food. From there, he went to the town of Bounkiling and reported the incident to the Senegalese gendarmerie.

He was treated at the local hospital and given money and travel papers so he could go to Dakar. There, he helped the Ghanaian embassy identify the people he had travelled with and who were believed to have been killed. Back in Ghana, he located many of the victims’ families and, together with the Commonwealth Human Rights Initiative (CHRI), campaigned for full accountability, organizing marches and demonstrations that kept the issue alive.

International Investigations and the Destruction of Evidence

The 2005 killings quickly became a source of tension between Ghana and Gambia, particularly after Gambian authorities refused to cooperate with several attempts by Ghana to investigate the matter. During an August 2005 visit to Gambia by a delegation led by the then-foreign minister – and now president, Nana Addo Dankwa Akufo-Addo, the Gambian foreign minister suggested that the eight migrants whose bodies were found may have been victims of ritual murder. According to the Ghanaians, Jammeh “categorically denied any Gambian Government involvement.”

The Gambian government agreed that a Ghanaian investigative team could visit the country, which it did in March 2006, but, according to an excerpt of the unpublished Ghanaian report printed in a Ghanaian newspaper, “[t]he Ghana team’s attempt to meet with high-level Gambian officials whose functions were related to the subject matter of the team’s visit became entangled in layers of bureaucracy…and it became evidently clear the Gambians were not going to be faithful to their commitment to jointly investigate the subject matter.” By the time a joint ECOWAS/United Nations team was formed in 2008 to investigate the killings, the Gambian government had allegedly already taken steps to destroy evidence related to the case.

Three different sources stated that Essa Badjie, who was appointed inspector general of police in July 2008, destroyed the diary log of the Barra police station and made a new log and backdated it. Later, after Badjie was imprisoned following a falling out with Jammeh, he told a friend that Jammeh personally instructed him to forge the records.

Shortly before the ECOWAS/UN mission arrived in Gambia, Badjie and the crime management coordinator met several of the high-ranking officials who had been involved in the case in 2005 at Police Headquarters and warned them against saying anything that would incriminate the government.

“Badjie explained that ‘The Gambia belongs to all of us, we should not see The Gambia defamed or destroyed by anyone, we shall do our best for the country,’” one former senior military officer said. “[Badjie] told me an investigation team was coming to investigate the Ghanaians. He wanted [us] not to say anything that would jeopardize the country's integrity.”

Another former senior military officer said: “The message was ‘remove incriminating evidence.’ They asked for the log book of the boat.” The two seized and destroyed the relevant sections of the naval log books.

In 2009, Gambia and Ghana signed a Memorandum of Understanding acknowledging that the Gambian government was not complicit in the killings but would make contributions to the families as a humanitarian gesture. Jammeh said that the findings “vindicated” his government. At the time, Ghana’s foreign minister, Alhaji Muhammad Mumuni, expressed skepticism about the findings, but accepted the report to bring closure to the families and restore relations between the two countries. Gambia paid US$500,000 in compensation to Ghana, which gave 10,000 Ghana cedis (roughly US$6,800 at 2009 rates) to each of the approximately 27 victim’s families. Six bodies were returned to Ghana. Human Rights Watch and TRIAL International have not been able to ascertain whether the transferred bodies were, in fact, those of the murdered Ghanaians.

In the Memorandum of Understanding following the report, “[b]oth Ghana and Gambia pledged to pursue through all available means the arrests and prosecution of all those involved in the deaths and disappearances of the Ghanaians and other ECOWAS nationals, especially those identified as culprits in the report.” No arrests have ever been made in connection with the case, however.

Posted: January 1, 1970, 12:00 am

A paramilitary unit controlled by then-Gambian president Yahya Jammeh summarily executed more than 50 Ghanaian, Nigerian, and other West African migrants in July 2005, Human Rights Watch and TRIAL International said today. 

Interviews with 30 former Gambian officials, including 11 officers directly involved in the incident, reveal that the migrants, who were bound for Europe but were suspected of being mercenaries intent on overthrowing Jammeh, were murdered after having been detained by Jammeh’s closest deputies in the army, navy, and police forces. The witnesses identified the “Junglers,” a notorious unit that took its orders directly from Jammeh, as those who carried out the killings.

Posted: January 1, 1970, 12:00 am