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

As Co-Director of the US Program, Maria McFarland Sánchez-Moreno guides Human Rights Watch’s work on criminal justice, drug policy, immigration, national security, and surveillance in the United States.

Previously, as Deputy Washington Director for Human Rights Watch, McFarland Sánchez-Moreno conducted advocacy before the US government on a wide array of global human rights issues, including matters related to the Middle East and North Africa during the “Arab uprisings” of 2011. Earlier, she held the position of Senior Americas Researcher, covering Colombia's internal armed conflict and working on the extradition and trial of former Peruvian President Alberto Fujimori.

McFarland Sánchez-Moreno is the author of the narrative non-fiction book There Are No Dead Here: A Story of Murder and Denial in Colombia, forthcoming from Nation Books in February 2018. She holds a law degree from New York University School of Law and did most of her undergraduate studies in Lima, Peru, before completing her BA at the University of Texas at Austin. She is a native speaker of both Spanish and English.

Multimedia

"Your Reaction to NSA Curbs," on BBC World Service’s “World Have Your Say” (January 2014)

"Deadly Threats: Successors to the Paramilitaries in Colombia ," (February 2010)

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

One of 39 US Embassy in Jakarta declassified documents showing US government knowledge of the mass killings in Indonesia in 1965-66. Published on October 17, 2017.

© 2017 National Security Archive
(New York) – Newly released US government documents on the mass killings in Indonesia in 1965-66 underscore the need for the US and Indonesian governments to fully disclose all related classified materials, Human Rights Watch said today. Those classified documents are crucial to an accurate historical record of the killings and to provide justice for those crimes.

The release on October 17, 2017, by the United States nongovernmental public transparency organization National Security Archive of 39 US Embassy in Jakarta documents show that US diplomatic personnel were fully aware of the scale and savagery of the 1965-66 killings. The documents reveal that US diplomats and their State Department counterparts in Washington, DC, were documenting tens of thousands of killings by the military, paramilitary groups, and Muslim militias of suspected members of the Communist Party of Indonesia (PKI), and ethnic Chinese, as well as trade unionists, teachers, activists, and artists.

“These newly released documents make clear that US officials had detailed knowledge of the mass killings in Indonesia in 1965-66,” said Phelim Kine, deputy Asia director. “The US government now needs to release the remaining documents, not only for the historical record of one of the 20th century’s worst atrocities, but as a long overdue step toward bringing redress to the victims.”

The US government now needs to release the remaining documents, not only for the historical record of one of the 20th century’s worst atrocities, but as a long overdue step toward bringing redress to the victims.

Phelim Kine

Deputy Asia Director

The 39 documents are part of a cache of almost 30,000 pages of declassified embassy paperwork spanning from 1965 to 1968, processed by the National Declassification Center, a division of the US National Archives and Records Administration (NARA). They include State Department letters, telegrams, situation reports, and confidential communications between US consulates in Indonesia and the US Embassy in Jakarta. They do not include US Central Intelligence Agency (CIA) documents, which remain classified.

In Indonesia, there has been a recent surge in efforts by paramilitary groups and militant Islamists to stoke “anti-communist” paranoia in response to calls for accountability for the mass killings. Elements of those groups led a violent “anti-communist” demonstration in Jakarta in September while the Indonesian military launched a propaganda offensive aimed at reinforcing the official narrative that the killings were a justified response to an attempted communist coup.

Starting in October 1965, Indonesian army officials, led by then-Major General Suharto, oversaw a campaign of mass killings targeting Communist Party members and giving free rein to a mix of soldiers and local militias to kill anyone they considered a communist. Over the next few months into 1966, at least 500,000 people were killed (the total may be as high as 1 million).

In the 52 years since the killings, the Indonesian government has justified the massacres as a necessary defense against the PKI. Its account holds that the communists attempted a coup, murdering six army generals on September 30, 1965, as part of their attempt to turn Indonesia into a communist state. In October 2012, then-Coordinating Minister of Political, Legal, and Security Affairs Djoko Suyanto responded to findings of the National Commission on Human Rights (Komnas HAM) that the events of 1965-66 constituted a “gross human rights violation” by insisting that those killings were justified. Public discussion about the killings, a taboo topic in Indonesia for decades, has increased in recent years, a process substantially aided since 2012 by the release of the documentary films The Act of Killing and The Look of Silence.

On December 10, 2014, US Senator Tom Udall introduced a “Sense of the Senate Resolution” condemning the 1965-66 atrocities in Indonesia and calling on US authorities to declassify related documents in US files. The proposed Senate resolution highlighted the continued impunity enjoyed by those who carried out the crimes, and called on Indonesian political leaders to establish a truth and reconciliation commission to address alleged crimes against humanity and other human rights violations. It called upon all relevant US government agencies to “locate, identify, inventory, recommend for declassification, and make available to the public all classified records and documents concerning the mass killings of 1965-1966, including but not limited to records and documents pertaining to covert operations in Indonesia from January 1, 1964-March 30, 1966,” and to expedite the public release of such files. The release of the 30,000-odd US Embassy documents was just the first step in that process.

“The US government can help the Indonesian government shine a light on the 1965-66 massacres,” Kine said. “Meaningful accountability for those heinous crimes – including the role of the US government – requires full-disclosure and declassification of all relevant official information.”

Excerpts from the 39 Declassified US Embassy in Jakarta Documents:

- “We continue to receive reports [of] PKI being slaughtered by Ansor [a Muslim militia] many areas East Java. Killing of PKI continues in villages bordering Surabaya and wounded released from Surabaya refuse to return to their homes. According head East Java Railways, 5 stations closed because workers afraid to come to work since some of them have been murdered.” (Telegram from US Consulate in Surabaya to the US Embassy in Jakarta, November 26, 1965)

- “Meanwhile, both in the provinces and Djakarta, repression of the PKI continued, with the main problem that of what to feed and where to house the prisoners. Many provinces appear to be successfully meeting this problem by executing their PKI prisoners, or by killing them before they are captured.” (Cable marked “Secret” from the Political Affairs Counselor at the US Embassy in Jakarta to Washington DC, November 30, 1965)

- “Muhammadiah [a reference to Muhammadiyah, Indonesia’s oldest Muslim mass membership organization] source reports that preachers in Muhammadiah mosques are telling congregations that all who consciously joined PKI must be killed. ‘Conscious’ PKI members are classified as lowest order of infidel, the shedding of whose blood is comparable to killing a chicken. This appears to give Muhammadiah Muslims wide license for killing. Policy of reformist Muhammadiah very similar to ‘Final Interpretation” issues by conservative NU [a reference to Indonesia’s mass membership Muslim organization Nahdlatul Ulama], suggesting Muslim opinion here practically unanimous on disposal of PKI members.” (Cable marked “Confidential” from the US Consulate in Medan to the US Embassy in Jakarta, December 6, 1965)

- “[Anti-PKI violence] have now resulted in an estimated 100,000 PKI deaths. A reliable Balinese source informed the Embassy that PKI deaths on the island of Bali now total about 10,000 and include the parents and even distant relatives of crypto-Communist Governor Sutedja.” (Cable marked “Secret” from the Political Affairs Counselor at the US Embassy in Jakarta to Washington DC, December 21, 1965) ​

Posted: January 1, 1970, 12:00 am

Executive Summary

On August 8, 2017, Kenya held presidential elections in which the incumbent, Uhuru Kenyatta was re-elected amid allegations of electoral fraud. The vote, which has since been annulled by Kenya’s supreme court following the opposition’s legal challenge, was also marred by serious human rights violations, especially in opposition strongholds in Nairobi, western Kenya and Coast.

This report, based on research conducted by Amnesty International and Human Rights Watch between August 9 and September 12, 2017 focuses on events in Nairobi’s informal settlements (Mathare, Kibera, Babadogo, Dandora, Korogocho, Kariobangi and Kawangware) in the aftermath of polling and the announcement of results on August 11. Demonstrations documented in this report were spontaneous and most of them were differing in degrees of violence. Responding to violence and looting is challenging, but the Kenya police have trained for this, and, as this report indicates, have shown, in some areas that they can do it lawfully, without loss of life. This report describes policing patterns in response to protests and violence in the informal settlements and documents a wide range of human rights violations including unlawful killings, excessive force and beatings.

At least 33 people were killed in Nairobi alone, most of them as a result of action by the police and therefore warranting investigation by either the Independent Policing Oversight Authority, a special commission or by parliament. Twenty-three, including children, appear to have been shot or beaten to death by police. Others were killed by tear gas and pepper spray fired at close range or trampled by fleeing crowds, and two died of trauma from shock. Two others were stoned by mobs. We received unconfirmed reports of another 17 dead in Nairobi. Added to the 12 killings at the hands of police documented by Human Rights Watch in western Kenya, and five additional killings confirmed by the Kenyan National Human Rights Commission, the national death toll could be as high as 67. Hundreds of residents have suffered severe injuries including gunshot wounds, debilitating injuries such as broken bones and extensive bruising as a result of the police violence.

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In many opposition areas Kenyan authorities deployed large numbers of paramilitary units: General Service Unit (GSU) police, Administration Police (AP), and units from Prisons, Kenya Wildlife Service and National Youth Service ahead of the polling, in anticipation of potential violence. These heavy deployments fueled political tensions ahead of the vote and exacerbated the unrest that followed the announcement of the results in which security forces sometimes used unlawful, excessive force to disperse protests, shooting and beating to death people on the street and in house-to-house searches. They used live ammunition, tear gas and pepper spray and beat residents with batons, often under cover of darkness.

The government’s own National Contingency Plan for the August elections refers to “hotspots” that police publicly named, where they assessed that violence was most likely. The hotspots were all opposition strongholds in ethnic majority Luo and Luhya areas, creating the impression of an ethnic and political dimension to the excessive police action that followed the poll. Residents in these areas told Human Rights Watch and Amnesty International that they believed they were being punished for the way that they had voted. Indeed, police statements to witnesses suggested the same. In many areas, police attacked crowds rather than controlled them and conducted punitive raids into people’s homes as they pursued youths who had thrown rocks at them.

However, in Kariobangi and Korogocho, researchers found that local police commanders chose not to deploy paramilitary reinforcements, opting instead for community policing methods and dialogue with protesters. Here, prior relationship building efforts between police chiefs and community leaders proved successful and, save for a few injuries, there were no deaths.

Police and paramilitary reinforcements also suppressed reporting on the violence and the gathering of evidence of human rights violations. Officers destroyed cameras and phones, beat photographers, arrested journalists and threatened human rights defenders, hampering the collection of evidence. Moreover, in many cases, victims and family members did not report violations and deaths because they feared retribution from police. The Kenya Police and the Cabinet Secretary for the Interior have denied reports of excessive force and unlawful killings by police and, at time of writing, were not co-operating with the Independent Policing Oversight Authority (IPOA), a civilian police accountability institution.

Kenya has a long history of political violence, impunity for high-level perpetrators, and mistrust of the police. The September 1 ruling of the Supreme Court annulling the flawed election has not calmed political tensions. With the incumbent President Kenyatta publicly criticizing the judiciary for the ruling, and the opposition refusing to participate in the election unless certain conditions are met, the stakes are high for the revote. On October 10, leading opposition candidate, Raila Odinga, announced withdrawal from the October 26 elections, creating uncertainty over the repeat poll.

As the country prepares for a fresh election, whether it takes place on October 26, 2017 or at a later date, authorities should ensure the police refrain from the violations that undermined the aftermath of the August poll. They should condemn violations that occurred, establish an independent judicial inquiry to examine the role of the police in responding to the August election violence, support the Independent Policing Oversight Authority (IPOA) in investigating all cases of killing by the police and excessive use of force, publicly encourage all victims of police violence to come forward and submit complaints to IPOA, commit to prompt and effective investigation and prosecution of officers reasonably suspected of responsibility for criminal acts, and commit to ensuring reparations, including adequate compensation, for victims and their families.

Recommendations

To the National Police Service

  • Urgently review all allegations of unlawful use of force resulting in killing and injury and refer all cases to the Independent Policing Oversight Authority (IPOA) for further investigations and prosecution.
  • Fully co-operate with IPOA by sharing necessary files and responding to requests for interviews.
  • Implement all recommendations made by IPOA in its investigations to date to ensure that officers and commanders implicated in unlawful use of force are held to account.
  • Remove, discipline and prosecute all officers found to have violated human rights including provisions of the National Police Services Act.
  • Review police standing orders or operating procedures on riot control to align them with both Kenya’s constitution and international standards on police use of force.
  • Ensure that all future police deployments and operations, including during the expected repeat elections, are lawful.
  • Take concrete steps to strengthen community policing initiatives across Kenya, including by refraining from visible deployment of large numbers of police and other security forces in neighborhoods.

To the National Police Service Commission, Independent Policing Oversight Authority and Kenya National Commission on Human Rights

  • Urgently and thoroughly investigate the unlawful police use of force during the 2017 post-election period and ensure that all those found to have violated the law are held to account, including by referring cases for prosecution in proceedings which comply with international law and standards on fair trial, without recourse to the death penalty.
  • Seek the assistance of the Office of the President in obliging the police to co-operate with ongoing investigations and request appropriate resources from government and donors to carry out the same.

To the Office of the President and the Government of Kenya

  • Publicly acknowledge and condemn the unlawful police use of force in Nairobi and western Kenya.
  • Direct police and other relevant state agencies such as IPOA to urgently investigate killings by police and use of excessive force in Nairobi and Nyanza during post-election protests.
  • Direct police to cooperate and support with information and other relevant material all necessary investigations into police conduct during the 2017 post-election period.
  • Establish an independent judicial commission of inquiry to examine the activities of the police in responding to protests following the controversial poll of August 8, 2017.

To Parliament

  • Establish a parliamentary inquiry into the excessive use of force by the police in responding to protests after the August 2017 general election.
  • Consider adopting a motion to compel the government of Kenya to ensure thorough criminal investigations into the abusive police response following August elections and to refer cases for prosecution in proceedings which comply with international law and standards on fair trial, without recourse to the death penalty.

To Donor Coordination Group on Police Reform (Particularly the United States, United Kingdom and Sweden)

  • Condemn rights violations committed following the August election and urge police, ahead of the re-run, to comply with international law and international standards on law enforcement, in particular to exercise restraint in any use of force.
  • Consider a substantial expansion in support for community engagement methods and modules in police training.
  • Continue to support IPOA politically and financially.
  • Urge IPOA to thoroughly and promptly investigate all cases of police killings and beatings in Nairobi and western Kenya following the August election, and to ensure reparation, including adequate compensation, for the victims.

Methodology

This report is based on interviews conducted in some of Nairobi’s informal settlements between August 9 and September 12, 2017. Researchers and consultants for Amnesty International and Human Rights Watch interviewed 151 victims, witnesses, health workers, journalists, activists, diplomats, police officers and family members of people killed during the post-election violence in Nairobi, in English, Kiswahili and Dholuo.

In all cases of death reported to the researchers, researchers obtained the name of the deceased, spoke to relatives and witnesses, and in most cases viewed hospital, post-mortem or mortuary records, or the corpse to confirm deaths.

Interviewees shared their testimonies voluntarily, without payment, often despite fear of police or government reprisals. For this reason, the names of interviewees have been kept confidential except where they explicitly asked to be mentioned by name or where they agreed to identifying characteristics, title, office and so on.

In each location, researchers visited the local police posts and police stations. In Kariobangi and Korogocho, local commanders were willing to meet and talk with us. In all other places local commanders referred us to divisional command and ultimately to the police spokesman who refused several requests for an interview.

Amnesty International and Human Rights Watch wrote to the Inspector General of police detailing our concerns and requesting a meeting but, as of time of publication, we received no response.

I. Policing protests – Kenya’s Obligations Under International Law and Standards

This report describes numerous instances where the police and security forces used excessive force in response to the protests and violence following the elections, in violation of Kenya’s obligations under international law and international law enforcement standards. Protesters engaged in looting, violence and throwing rocks at police, however, the response by the police in many areas was excessive. This report includes cases of unlawful killing by the police in violation of the right to life, beatings in violation of the prohibition on torture and other cruel, inhuman or degrading treatment or punishment, and attempts by authorities to obstruct reporting of those violations, in violation of the right to freedom of expression.

Kenya's obligations to respect and protect the right to life and other rights

Kenya’s obligations under international law (including under the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights) to respect and protect the right to life and to ensure that no one is arbitrarily deprived of life[1] include preventing arbitrary killing by its police and other security forces, and ensuring that if it occurs the victims have access to a remedy and reparation, and that the perpetrators are held accountable. International law also absolutely prohibits torture and other cruel, inhuman or degrading treatment.[2] Kenya also has obligations to respect and protect the rights to freedom of expression, including the right to seek, receive and impart information, and peaceful assembly,[3] encompassing peaceful protests, and to ensure that its police and security forces do likewise.

Obligations and responsibilities of police and law enforcement agents

The obligations and responsibilities of police and other security forces which derive from these and other international law obligations are set out in international standards on human rights in the context of law enforcement adopted by the United Nations, notably the UN Code of Conduct for Law Enforcement Officials (UN Code of Conduct) and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN Basic Principles). With regard in particular to the policing of protests, these international law obligations and law enforcement standards are encapsulated in the Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa (Policing Assemblies in Africa) adopted in 2017 by the African Commission on Human and Peoples’ Rights.

If people commit acts of violence or other lawbreaking, the police and other security forces have a responsibility as far as possible to prevent violence and other illegal acts and arrest lawbreakers, and protect lives and safety of people affected. In doing so they are required to respect and protect human dignity and maintain and uphold the human rights of all.[4] They are required to seek to avoid the use of force and as far as possible apply non-violent means before resorting to the use of force, which they may use only if strictly necessary – that is, if other means remain ineffective or without any promise of achieving the law enforcement objective.[5] If the use of force is unavoidable they should use it with restraint and proportionately to the seriousness of the offence and the law enforcement objective; minimize damage and injury and respect and preserve human life, and ensure that those injured or affected receive assistance and medical aid as quickly as possible.[6]

Firearms only as a last resort to protect life

In particular, and crucially, international law and standards are clear that the use of firearms may only be permitted in very narrow circumstances, as a last resort. Police must not use firearms except in defense of themselves or others against the imminent threat of death or serious injury, to prevent a particularly serious crime involving grave threat to life, to arrest or prevent the escape of someone presenting such a danger and resisting their authority, and only when less extreme means are insufficient to achieve this; they should always give an effective prior warning of their intention to shoot, unless that would put themselves or others at risk of death or serious harm.[7] This principle applies at all times including in demonstrations or protests which have turned violent; firearms should not be used as a tool for dispersing protests, shots fired into the air or other warning shots should not be used, and indiscriminate discharge of firearms into a crowd is a violation of the right to life.[8]

Non-lethal weapons

Governments and other relevant authorities should ensure that law enforcement officials are equipped with a range of less-lethal weapons to allow for a differentiated use of force and firearms, with a view to restraining the use of means which can cause death or injury; they should also be equipped with self-defensive equipment such as shields, helmets, and other protective gear to decrease the need to use weapons of any kind.[9] Less-lethal weapons for crowd control should only be used when there are legitimate grounds for the use of force, and only when their use is necessary and proportionate and in circumstances when other less harmful means have been attempted and found to be ineffective or will be ineffective under the circumstances.[10]

Policing demonstrations and protests

In respect of protests and demonstrations in particular, law enforcement agencies should establish systems for a collaborative and inclusive communication with all stakeholders, and the response of law enforcement officials to issues arising during protests should give priority to de-escalation tactics; if violence occurs they should differentiate between individual and group behavior, and where specific individuals are identified as acting in an unlawful or violent manner, should focus on removing from the group or arresting those individuals.[11] Deployment of law enforcement officials in demonstrations or protests should take into account the potential adverse influence that the visible appearance of police and security officers can have on the way in which events develop; generally, they should be deployed only in minimum numbers necessary to ensure the protection and safety of those involved, and take a graduated approach to any increase of visible policing numbers; they should always wear visible individualized identification (name or a unique number).[12]

Accountability

Authorities should establish effective reporting and review procedures for all incidents where police use firearms or where people are injured or killed as a result of any police use of force, with prosecution authorities in a position to exercise jurisdiction in appropriate circumstances.[13] Arbitrary or abusive use of force and firearms by law enforcement officials must be punished as a criminal offence under the law.[14] Commanders should be held responsible if they know, or should have known, that law enforcement officials under their command have resorted to unlawful use of force and firearms, and they did not take all measures in their power to prevent or report such use.[15]

II. Background

Other than the 2002 poll, every election in Kenya since the introduction of multi-party politics in 1991 has been marred by unrest, particularly the 2007 poll when over 1,100 people were killed in post-election violence and 660,000 were displaced.[16] That history still weighs heavily on Kenyan society.[17] The justice that was promised to victims never arrived, despite the 2010 constitution, the Waki Commission of Inquiry into the violence, the Truth Justice and Reconciliation Commission, and the involvement of the International Criminal Court.

Impunity for that violence, as well as the failure of national reconciliation efforts, have contributed to grievances and poor relations with police, particularly among communities that support the opposition. The informal settlements where the majority of abuses documented in this report occurred are populated by mostly ethnic Luo and Luhya communities that have traditionally supported Raila Odinga.

Conditions in these informal settlements, also known as slums, which host 2.5 million of Nairobi’s 3.1 million population are among the worst globally. The people living there have inadequate access to social services, water, housing and employment; typhoid and cholera are common, rates of infant mortality and teenage pregnancy are high and unemployment runs at around 50 percent.[18] The slums are also especially affected by ill-treatment by the police: patterns of extrajudicial executions by various units of police have been extensively documented.[19] In the informal settlements the police are generally not seen as guardians of law and order but, as many witnesses told researchers, they are instead perceived as oppressors.[20]

Unsurprisingly, it was precisely these areas that the police identified as “hotspots” prior to the 2017 election: Mathare, Kibera, Kariobangi, Korogocho, Kawangware and Dandora.[21] Police predicted where anger and protest at the election result would erupt, based on low-income neighborhoods where the majority ethnic group tends to support the opposition, as well as on their own record of policing in these communities.[22] As both residents and police told researchers, they believed that it would be almost impossible for the police to deploy in the slums in large numbers without encountering serious resistance; their very presence would be a provocation.[23]

III. Killings and Other Abusive Policing in Nairobi Following the Election

President Uhuru Kenyatta of the Jubilee party ran against opposition leader Raila Odinga and his National Super Alliance coalition (NASA) in the presidential race of the August 8 general election.[24] The pre-elections period was marked by allegations of fraud and the murder of Chris Msando, the Chief Technology Officer of the Independent Electoral and Boundaries Commission (IEBC). A post-mortem found that he had been tortured prior to his death. In the days after the poll, the Kura Yangu Sauti Yangu (KYSY) coalition of election observers and the opposition coalition, NASA began to report irregularities in the presidential election. Forms used to tally results were slow to trickle into the national tally center.

Protests first erupted in some areas of Nairobi and Kisumu following Odinga’s August 9 press conference alleging the hacking of IEBC servers and irregularities in the tallying of results. After the IEBC declared Kenyatta the winner at 10.30pm on August 11, angry demonstrations began in opposition strongholds, informal settlements in Nairobi and across western Kenya and Coast province and lasted for several days.[25] On August 16, Odinga announced that NASA would challenge the results in court and on September 1, the Supreme Court ruled that the election had been marred by irregularities sufficient to compromise the integrity of the process, and ordered a fresh presidential poll within 60 days.

Patterns of police deployment and excessive use of force following the vote

Even before election day, security forces deployed around some of Nairobi’s many informal settlements. The police and paramilitary presence, at the entrance to slums and the junctions with main roads, appeared to be designed to stop protests – and the expected attendant violence – from spreading beyond the slums. Witnesses told researchers that police wore green uniforms and riot gear shields, helmets and carried batons, suggesting they were prepared for situations where they would use force. In the days after polling, police informed health providers working in the slums to expect a heavy ‘crackdown’ a term usually understood to be a punitive raid.[26]

On August 9 and 10, soon after Raila Odinga made an announcement alleging irregularities in the vote, demonstrations and riots began in opposition areas in Kawangware and Mathare. Angry protesters burned tyres and shops belonging to Kikuyus, the ethnic group that was largely supportive of Uhuru Kenyatta, a Kikuyu, barricaded roads and often taunted police.

Demonstrations intensified and spread to the other slums – Kibera, Dandora, Babadogo, Kariobangi, Korogocho – after the IEBC declared Uhuru Kenyatta the winner on the evening of August 11. Riots erupted through the night and police continued to clash with protesters across Nairobi during August 12 and 13.

In Kawangware, Mathare, Babadogo, Kibera and Dandora police actively confronted protesters, breaking up gatherings with tear gas, pepper spray from water cannons, truncheons and live ammunition – sometimes firing into the air but also directly aiming at individuals and as well as firing randomly into crowds and residential areas. In Kawangware, Mathare, and Dandora, police unlawfully killed protestors and engaged in running battles with residents for several days, pursuing protestors into alleyways and homes where fleeing youths were then shot or beaten.

In total, in the period covered in this report, at least 23 people appear to have been shot dead by police, three beaten to death, and three died of asphyxiation from tear gas and pepper spray, two trampled to death, and two of physical and psychological trauma.

Residents and human rights activists told researchers of another 17 cases of deaths resulting from police actions in informal settlements in Nairobi. Witnesses and human rights activists told researchers of at least four bodies that they said they saw being removed by police in Kibera,[27] the identities of the victims and where they are currently located are unknown. Dozens of others suffered gunshot wounds and severe injuries due to police beatings.

At least two people were killed by armed gangs which clashed along ethnic political lines in Mathare and Kariobangi. Others were injured as a result of violence by armed gangs. The combined statistics of health providers for Eastlands and Kibera stands at 333 people treated for injuries, including gunshot wounds and beating.[28] Scores of victims of such violence are now either permanently or temporarily disabled, unable to work and provide for their families in precarious economic circumstances where they were often living hand to mouth.

In some cases, our research suggests that police may have been overwhelmed by violence directed at them and may have used firearms in circumstances that met the criteria for lawful self-defense or defense of others against an imminent threat of death or serious injury. But every instance of such use of firearms by police should be subject to an independent investigation to scrutinize whether it was lawful in terms of domestic and international law and standards.[29] But in most cases documented by Human Rights Watch and Amnesty International, police appeared to have shot at protesters or others who, even if some of them may at some point have been engaged in violence or other unlawful acts, did not pose a direct threat to life, often shooting them in the back, or in apparently punitive raids into the slums, pursuing people who had thrown stones at them. Such use of firearms by police is a violation of the right to life.

Remarks made by police during many beatings suggested victims were being punished for the way that they had voted, or because of their ethnicity. One man in Mathare told researchers that GSU police beat him saying: “You people will know the government is not yours… You can call your Baba (Raila) to come and help you.”[30]

Unlawful killings

While police undoubtedly faced violent crowds, the use of lethal force was frequently unlawful.

On Saturday August 12, in Mathare, police officers in GSU uniform beat two men to death during these house to house operations in pursuit of youths whom they alleged to witnesses had thrown stones at them.[31] In one case, according to relatives of the victim, eight police officers stormed into the house of Silas Owiti Lebo, kicking the door open, and beating him and his friend with batons and gun butts.[32] They hit Lebo on the head with a baton repeatedly as he cried for mercy on the floor, and shouted that they were “just doing the job for which they are paid,” said Lebo’s friend who survived the beating.[33] A relative who was present screamed at the police to stop and said when they left Lebo was “unconscious with blood pouring form his ears.”[34] Lebo was admitted in the Intensive Care Unit at Kenyatta National Hospital but died on the morning of August 13.[35]

In Mathare on August 13, a nine-year old school girl, Stephanie Moraa Nyarangi, was shot dead while standing on her balcony. Residents and neighbors told researchers that policemen on the street deliberately shot at the balcony where children were watching the clashes below “Other girls on the balcony ran inside and told us that police were aiming at them. …. Stephanie was standing at the railing. I heard a shot and saw that the bullet had hit her and went through to hit the wall,” a witness told researchers.[36]

On August 9, Bernard Okoth Odoyo, 25, a carpenter, and Victor Okoth Obondo aka Agwambo, 24, who were close friends who lived close to each other in Mathare 4A, were among four people shot dead around 9p.m. as a combined team of security officers fought off demonstrators at Number 10 area, according to relatives and eyewitnesses.[37] An eyewitness said the police at Number 10 area were clearly overwhelmed by protestors and tried to “shoot their way out” of a crowd.[38] However, both Odoyo and Obondo were shot in the back and died instantly, while trying to flee from security officers, suggesting that force was at least by that point unnecessary.[39]

Paul Mungai, a charcoal seller, was shot by police as he was shuttering his shop in the face of violence between police and protesters, according to witnesses.[40] The bullet pierced the tin wall of his shop and hit him in the abdomen, exiting at the other side of his back. Friends rushed him to a local clinic which was initially reluctant to treat shooting victims for fear of police reprisals, family members said.[41] He was eventually transferred to Kenyatta Hospital where he died from internal bleeding two days later.[42]

Around 9 p.m. on the evening of August 11 in Babadogo area, moments before Kenyatta was declared winner, police shot dead one boy and two men: Raphael Ayieko, 17, his close friend and neighbor, Privel Ochieng Ameso, 18, and Shady Omondi Juma, 18, according to witnesses. Witnesses claimed the three were watching other youth looting.[43]

Raphael, a student at Usenge Boys High School in Siaya county who was visiting his parents in Nairobi for holidays, went to carry some groceries to Privel’s house.[44] Privel’s mother said the two boys then went out to observe youth looting nearby kiosks when they were shot by police. An eyewitness described what happened:

We were together. We saw looting and saw men come in military uniforms, jungle green. I heard one officer shout ‘kill those criminals’ and they shot live bullets. I saw an officer push Raphael, on a wall and then shoot him. Shady was shot in the chest. Privel tried to run away but was shot in the back.[45]

A relative of Privel confirmed that he was shot in the hip and at the back of his neck and died later; Raphael was shot in the back and died instantly.[46]

Juma’s father, a matatu driver, described to researchers how he learned of his son’s death: “I was at work with Shady the whole day and dropped him back to the estate in Kasabuni area at around 9.30 p.m.…Later at 11 p.m. a fellow matatu driver called to say my son had been shot by police as he knelt in surrender.”[47] The next day he saw his son’s body in the City Mortuary with five bullet holes in it: “one on the chest, then lower abdomen, left arm, ribs on the right and another on the right knee, breaking it.”[48]

Henry Matete died as a result of beating in Kibera on August 11. Matete, who had an unrelated wound that needed daily dressing, was intercepted by GSU police when returning from a clinic in Bombolulu area in the afternoon when they saw him limping, the officers ordered him to kneel. Witnesses said he raised his hands but the GSU police beat him anyway, on his back, legs and body. The police left him on the road and bystanders carried him home. The next day he died at Muthaiga hospital. The family could not afford a post-mortem and buried him in their ancestral area in Western Kenya on August 26.[49]

Five witnesses told researchers how they saw GSU police shoot four protesters during violent clashes following the announcement of Kenyatta’s victory on the night of August 11 whose bodies were taken away by police. Protestors set fire to tires and taunted police who were surrounded at the Olympic area. Witnesses described police repelling protestors with tear gas and firing in the air and into crowds then the protestors regrouping and advancing again. One witness explained:

After a while, when it seemed calm again, we came back and saw a body bleeding on the road. As we came out to look the police were arriving from the other side, they fired tear gas to make us disperse and some police advanced to chase people into alleyways while the ones behind collected the body. They put him in a body bag and threw him into a lorry[50]

In total, four bodies were left on the road after several such exchanges, witnesses said, which police officers zipped into bags and loaded onto lorries[51]. “You could tell they were dead, the way they threw them, it was not gentle!” said one woman, watching from an alley.[52]

Witnesses named one of those killed and his body taken as Michael Owino, 28 years old. His body and that of three others are still missing, according to a representative from the chief’s office at Sarang’ombe.[53] The chief and community leaders have appealed for relatives to come forward but at the time of writing the identities of the others killed and whose bodies were taken, are unknown.[54]

Excessive force

Researchers documented several cases of police shooting at unarmed people from a distance who posed no apparent threat.

In one case, a construction worker returning to Kibera on a motorbike after work on August 12, described:

when we were one hundred meters away, just as we caught sight of the police as we came up the road towards Kiandaa/Bombolulu the police started shooting. We approached them from behind, when they heard the bike they just turned and opened fire with live rounds. There were four police firing. More than 20 shots were fired.

Eyewitnesses confirmed his account of police shooting unprovoked.[55] The victim was hit in the thigh and hid in the slums before admitting himself to hospital.

The excessive force seemed to follow a pattern of police reprisals for violence by protestors. In Mathare, police went door to door looking for all males. Shouting “wanaume!” (men! In Swahili).[56] A 32-year-old carpenter in Mathare 4A said police beat and broke both his legs at around 9 a.m. on August 12. “I had closed my door because I heard police chasing youth who were throwing stones. Four police officers kicked my door in. It came off on its hinges and they started beating me. They broke my legs. They beat me for around an hour.”[57] One of the police officers said, “kill him,” according to the victim, whose wife was also present and took the victim to hospital.

In several alleys of the Ngomongo area of Korogocho on August 13 following the burning of the chief’s office at Waraka, GSU police went house to house looking for men again, shouting “Wanaume!”. They banged on doors one after the other, systematically, and pulled male residents out of their homes, breaking doors and smashing property. In one case, seven GSU officers in helmets pulled all the men in one street, one victim recalled: “outside, they told us to get on our stomachs, saying, ‘ukiinua kichwa ni risasi’ [if you raise your head, you get a bullet].” Then they beat the men, leaving this victim unable to walk or work. Along a neighboring street, GSU also banged on all the doors shouting “tokeni nje” [come out!] and beat a husband and wife who were at home with their small children, injuring the husband so badly. He was still bedridden two weeks later.[58]

Police beat another man, Gordon Onyango, an opposition youth leader, on August 12 in Kiandaa on the rail tracks near Kibera Town Centre. Onyango was leading a small protest, holding aloft a stool: “I was in the front line of the demonstration. I went up to the police to talk to them but they just grabbed me and threw me on the ground and they beat me with batons. I was being beaten for about 10 minutes on the ground. As they were doing it one of them said to me: ‘If we had the time, we’d kill you. You are really disturbing people’” [59]

When Onyango tried to use his mobile phone to film what was happening to him, a police officer smashed it. A foreign photographer, Neil Shea, documented Gordon’s beating and a police officer snatched Shea’s camera, removed the memory card and smashed the camera too.[60] His followers threw stones at the police which gave him the opportunity to run away. Onyango sustained broken ribs and head injuries which have affected his vision.

The Geography of Violence

The violations described above took place in areas where the police response was excessive and violence and injury correspondingly higher. In areas such as Kawangware, Mathare and Dandora, where large numbers of paramilitary police – GSU and AP – were deployed, there was a higher level of what appeared to be unlawful police conduct than in some other areas. For example, in Korogocho and Kariobangi, local police chiefs engaged with community and youth leaders personally and either prevented or tried to prevent deploying the GSU reinforcements. In those areas, levels of violence were much lower and there were no deaths.

The following breakdown describes the main patterns of rights violations in each location and details other deaths, beatings and excessive force that merit further investigation.

 

Dandora

On the night of August 11, police had already deployed in significant numbers around Dandora’s “phase 4,” and “phase 3,” areas populated predominantly by opposition supporters. According to residents, police stationed seven large trucks at key intersections.[61]

As the result was announced, protesters in phase 4 set fire to businesses and began looting. They continued throughout the following day.[62] Police tried to disperse them with tear gas and firing into the air but quickly moved on to firing live ammunition directly at protesters and bystanders, killing at least three in what would appear to be cases of unlawful killing and intentional use of force where it was not necessary.

An eyewitness described how a group of 15-20 police pursued demonstrators, and one of them shot dead Vincent Omondi Okebe, a 27-year-old man at the main junction in phase 4: “I tried talking to the police, then one of them knelt and aimed…” The demonstrators ran away from police, but, “one of the young men fell down.”[63]

Youths in Dandora interviewed by researchers described the scene as “a game of cat-and-mouse,” with police firing tear gas and demonstrators throwing stones, running away and coming back again.[64] Police pursued protesters into the alleys, shooting at body height and aiming at fleeing youths.[65]

“It was as if they knew the damage they wanted to cause, they were deliberately punishing the community. They thought it was a war. They were shooting wildly in Dandora,” recalled one health worker.[66]

As the game with police and protestors continued, police shot dead Thomas Odhiambo Okul, age 26, in the back, right outside the gate to his house in an alleyway. A relative told researchers how Thomas had stepped out of his home to see what was happening. A short while later, he came running home again and was shot and killed.[67]

Police also shot Kevin Otieno, age 23, in the stomach, in same neighborhood, about one hundred meters away. Residents said he was trying to get home and avoid the shooting. A witness said that police were walking, aiming and shooting at people on sight.[68] Kevin’s neighbors said they tried to drag his body away but police aimed at them too and they ran away.

 

Residents said the unit responsible for the fatal shootings of Thomas and Kevin, was a group of 15 or so police dressed in jungle green led by a female officer wearing safari boots.[69]

Vitalis Otieno, a 35-year-old man suffering from tuberculosis, died of shock, according to a relative. A relative told researchers that on August 11, neighborhood youth had come banging on doors calling men to come to defend the neighborhood against “Mungiki” – a banned criminal gang associated with the Kikuyu ethnic group and linked to extortion and political violence. Vitalis looked out of the gate and saw police shooting his friend Thomas in the back. He did not leave the house, but spent the rest of the day and night panicking, struggling to breathe, believing he would be trapped and unable to flee if the Mungiki or the police came house to house. He passed away around 4am on Saturday morning.[70]

Kawangware

In this settlement, witnesses said the police were extremely violent, using abusive force in beating protesters, and firing tear gas canisters and live bullets indiscriminately. The police may be responsible for at least nine unlawful killings here. A full investigation is needed to establish whether in any of these cases there was an imminent risk to the lives or of serious injury of the police or others that would have justified the use of lethal force. The nature of many injuries – from tear gas canisters fired at people, at close range, gunshot wounds of protestors shot in the back – strongly indicates that in many cases the use of force was excessive.

In at least two cases people in their homes were killed by stray bullets from police weapons, which suggests that the police were not complying with international law and standards on the use of firearms. In the cases of two people trampled to death by fleeing protesters the police may not be criminally responsible but their failure to de-escalate the violence and to act in a proportionate manner may have contributed to the chaos which resulted in these deaths.

Protests began in Kawangware earlier than in many other locations. The day after polling, on August 9, youths clashed with police and continued to engage in running battles with them for several days.[71] Residents said that youths taunted police and threw rocks at them while police retaliated with water cannon, tear gas, truncheons and live ammunition.[72] Even if protestors are throwing stones at the police, if the police are equipped with protective gear and appropriate non-lethal weapons enabling them to make a proportionate response, as required under international law, it should rarely be necessary for them to use firearms in self-defense.

In the “stage two” area, GSU police clashed with protesters and fired teargas, which contributed to several deaths. A witness said that a 45-year-old businessman, Sammy Amira Loka, who sold tea, was hit by a tear gas canister in the chest as he tried to escape the fighting. Bystanders said he was not beaten but he began coughing blood and vomiting and was taken to Kenyatta Hospital where relatives said he died on August 16.[73] Later that evening, at the “56 stage[74]” area, police fired teargas cannisters into crowds as they advanced towards demonstrators. Lilian Khavere, a 40-year-old house-keeper who was eight months pregnant, fainted and was trampled to death by crowds fleeing the teargas as she was coming home from work in Parklands, according to a witness.[75]

Festo Kivogo, a 33-year-old father of three, was shot dead while in the vicinity of violent protesters throwing rocks at police at around 7p.m. that evening when a bullet hit him behind the left ear and exited through his eye, according to one of the men who tried to help take him to hospital. Witnesses were not sure if police fired the bullet; some said a Kikuyu businessman shot a handgun from an adjoining alley.[76] Throwing rocks at police is not, in itself, grounds for the use of lethal force, unless such action presents an imminent threat of death or serious injury, and no less extreme means are sufficient to stop that threat. An effective investigation is required to examine whether his killing was lawful. This should include consideration of the post-mortem report. However, police and the government pathologist have so far refused to release the post-mortem report to Kivogo’s family despite repeated requests, including from IPOA.[77]

Relatives of Melvin Mboka Mwangitsi, a 19-year-old woman, also believe police killed her that night. They found her swollen body at Kenyatta Hospital mortuary three days after she failed to return home. Her phone and money were still in her clothes. She had been shot through the torso from the right side.[78]

On August 10, residents said police clashed with protesters who were throwing rocks at them nearly the whole day.

At around 1p.m., Zebedeo Mukhala, a 42- year- old construction worker, was shot in the leg by police according to a witness, then trampled to death by crowds after he fell on the ground.[79]

Eric Kwama, a 30-year-old casual laborer, was killed when police fired a teargas canister at his head at close range, according to a relative. A friend of his said they were trying to run away from the police.[80] Violet Khagai, a 43-year-old woman, first fainted after being inhaling tear gas, and died after being hit on the head by a rock.[81]

On August 11, hours before the declaration of Uhuru Kenyatta as winner, Nelvin Amakove, a 30-year-old woman, was shot dead upon returning from shopping for food during a lull in the protests, a relative said. A relative found her body, along that of another woman. “[I]t had a small bullet hole at the back – right side,” and a huge exit wound at the front, he recalled.[82]

In the Kinyanjui area, Suleiman Khatibu, a 25-year-old Tanzanian national working at a hotel in Nairobi, died after being hit by a tear gas canister in the chest, according to a relative and a family friend who were with him. A relative said he bled from the nose and struggled to breathe. He died one week later in hospital.[83]

At “56 stage” area, Jeremiah Maranga, a 50-year-old watchman, was beaten to death by police. According to witnesses, police caught and beat him so badly that his body was soaked in blood.[84] He died before he was seen by doctors, who told relatives he had suffered significant internal bleeding and organ damage.[85]

Witnesses also described police grabbing youths and dunking them in the open sewer that runs alongside the main road through Kawangware slum and is full of sticky black, toxic, effluent.[86]

Researchers received 10 other reports of police killings in Kawangware which at the time of writing are still unconfirmed because families are either still upcountry for burials or are too afraid to speak about the killings.

Kibera

In Kibera, police clashed with violent protestors on August 10 and 11 and with a smaller group of protestors on August 12. At least two people were killed in circumstances that appear to be unlawful killings, and dozens were shot and injured. Police used force and firearms that appeared to be excessive, in violation of international law and standards. Residents attributed beatings and shootings, and the removal of bodies of people shot by security forces, to GSU reinforcements from outside the locality.

As in other areas, unrest in Kibera began around Kamkunji and Gatwikera areas as soon as the opposition announced that the IEBC server had been hacked. Protesters at Olympic and Soweto areas in Kiandaa, Kibera, started throwing stones and barricaded the road. Many witnesses described a large, volatile, angry crowd flooding the road from Bombalulu junction in the west to Olympic stage in the east. Police, parked at Olympic and along the southern bypass, deployed to Olympic and Bombalulu in large numbers and began a “cat and mouse game” with the crowds. Police fired tear gas and shots into the air to repulse the crowd that then advanced again.[87] Some officers also fired into the crowds, killing at least four. As mentioned above, witnesses described GSU officers loading the bodies of four people shot onto trucks.[88]

During these clashes, which continued up to 1 a.m., police beat several people – a local businessman described being beaten and verbally abused by police, losing many teeth in the process.[89] Researchers spoke to several men who were watching an English Premier League soccer game on Kibera Drive when police made them lie down on the ground and beat them severely.[90]

The following day protests continued, with beatings and shootings of protestors. A university student, was shot in the leg near Olympic primary school as he crept to check if the coast was clear, he said.[91] Another, a carpenter, described police aiming at him from a distance as thy battled protestors in his neighborhood. He was shot in the ribs. At the time of interview, the bullet was still lodged in his body.[92]

Relatives said that during protests on August 10, Geoffrey Onacha, a 34-year-old resident in Kibera, was shot dead. We could not establish who fired the gun. His family went to view the body the next day in City Mortuary. His daughter, Sharon Imenza, age 10, was so traumatized from seeing the body in the hospital that she collapsed immediately and died, according to a relative. Relatives buried both soon after in western Kenya without reporting to police or IPOA.

In total, during the period, Ushirika hospital at Olympic recorded 31 victims of beatings and gunshot wounds and Kibera South health center recorded 12.

The allegations that security forces in Kibera took away bodies which have not been accounted for are deeply worrying and these incidents need to be speedily and thoroughly investigated by IPOA and other relevant authorities. The authorities have an obligation to ensure that all deaths as a result of police action are fully investigated, and not to cover up such deaths by disposing of bodies without recording the deaths with the proper authorities or revealing the whereabouts of the bodies to the relatives or others with a legitimate interest.

Mathare

Mathare was also a scene of very violent police behavior and nine apparent killings by police. Multiple police units deployed in opposition strongholds of Mathare several days before the voting on August 8. Following the violence in the slum after the poll, they used teargas and water cannons, batons and firearms for several days, leaving at least nine dead between August 9 and 12, with seven of them shot dead and two beaten to death.[93] Dozens of people were treated in local clinics and hospitals for gunshot wounds and other injuries sustained as police battled violent protestors and conducted house-to-house raids pursuing protestors in their homes. Violations by police were concentrated in opposition areas, while ruling party areas such as Kiamaiko and Mlango Kubwa remained calm.[94]

Williams Waka 42, was shot dead on August 11, according to what witnesses told his relatives.[95] The relatives saw his body the following day with a small entry wound on one side of the ribs and a large exit wound, at City Mortuary. The family members told researchers they could not afford a post-mortem and they buried him on August 17 without reporting to police or IPOA.

Two other men were shot dead in Bondeni area at around 1a.m. on August 12, according to their relatives. Bonface Ochieng Owino, 31, a plumber, and his close friend and relative, a restaurant owner, David Owino, 28, left their respective houses in Bondeni area of Mathare and went to join demonstrators on Juja road soon after Kenyatta was declared winner at 10 p.m. on August 11.[96] The next morning, relatives said they received news they had been shot dead. The families later found their bodies at the City Mortuary.

On the morning of August 12, police swept through neighborhoods in Mathare 4A, areas C and T pursuing protestors. They kicked doors open, pulled men out of their houses, and beat them with batons and gun butts.[97] Victims said police shot at residents even where there was no evidence that their lives could have been in danger.[98]

In another case, a human rights activist said police beat to death Bernard Ochieng Omondi, 31, a community mobiliser for a community-based organization in Mathare.[99] Researchers were however unable to establish further details and the circumstances surrounding his beating and eventual death.

According to mortuary records, police took the body of a middle-aged man, Fanuel Muruka Amule, to Nairobi’s city mortuary from Mathare on August 12 with bullet wounds in the chest. Researchers were however unable to establish the circumstances of his killing.[100]

On August 13, a witness said, police shot dead 32-year-old construction worker, Christopher Samwell Mutua, after he stepped out of his house in Mathare North at around 8pm.[101] A witness and neighbor who was with him told researchers that directly after the shooting, a group of 10 officers in full anti-riot gear and armed with guns and batons emerged from the darkness. “There were no demonstrations in this area or where he was shot,” added the neighbor.[102]

Seven other men were shot dead during the post-election period in Mathare. Further investigation is needed to determine this in each case and what were the circumstances of each killing; if they were shot by security forces the investigation needs to examine in particular whether any of those shot posed an imminent threat to life or of serious injury at the time they were killed, or if the security forces acted unlawfully.

Many beatings were extremely severe. A 20-year-old man, who didn’t want to give his name for fear of reprisals, was beaten by police and left for dead. Nearly three weeks later when a researcher interviewed him, he still could not remember what had happened due to beatings on his head.[103] Another man said he had broken ribs while at least three others said they could no longer work or fend for their families due to beatings.[104]

Men believed by witnesses to be plain clothed officers fired at bystanders, including children. At around 9 a.m. on August 12, three men in plain clothes and who residents said they believed to be officers from the Directorate of Criminal Investigations, wounded a 12-year-old primary school boy in Mathare 4A who was out playing with classmates.[105] The boy was later admitted at Kenyatta National Hospital with gunshot injuries in the left leg. “They were shooting at anyone, in most cases those in groups of more than three. The man who shot at the boy had an AK47 and he is a CID officer well known in this area,” said a 22 – year old man and resident of Mathare 4A.[106]

Babadogo

In addition to killing three boys in Babadogo described above, the police beat at least two people badly and several other people sustained gunshot wounds after police had deployed to the area and begun shooting.[107]

Residents described turning out to defend the community against “Mungiki” but then being shot by people apparently wearing police uniforms. A 40-year-old construction worker from western Kenya said he was among the residents who went out in a large group to defend their neighborhood against Mungiki, and was shot in the back.[108] A second man, a 35-year-old carpenter, was shot in the lower back area that same night. “We thought they were Mungiki because they acted sneaky in the dark. Police in this area are well known and they told us they did not know the people who attacked us that night,” said the victim from Kasabuni side of Babadogo.[109]

Korogocho and Kariobangi

There were house to house operations by GSU police in Korogocho and the officers beat residents arbitrarily and with excessive force. However, the local police chief said he did not request the GSU to come into his area, they came in pursuit of boys who had surrounded the police post at Waraka and burned the chief’s office there.[110]

In Korogocho and Kariobangi, protests erupted following the announcement of the presidential election results but the police reacted in very different fashion to their colleagues in Kawangware, Mathare and elsewhere. In both locations, residents did not report to researchers any deaths at the hands of police

In Korogocho, the OCS of the local police post, a trainer in community policing methods at the police academy, explained that he urged police restraint: “We were provoked a lot but we tried to avoid escalating the situation. We were attacked with stones, but it was just stones.”[111] He stationed GSU reinforcements out of sight and urged them not to deploy, to give him and his local officers a chance to talk to protestors first.[112]

In Kariobangi there were clashes along ethnic-political lines between local youths on the night of August 11 after the announcement of results. NASA supporters gathered on the street and told elders and women to go inside, witnesses recalled, and some lit fires as they prepared to clash with “Mungiki” gangs known as “the Hilton group” and the “Kanyama group.” [113]

But police dispersed the gangs and prevented them from clashing, and intervened in at least one street fight likely saving a young man’s life. [114]

While youth in the Gitathuru area of Kariobangi set shops on fire and destroyed the wall of a school believed belonged to a Kikuyu businessman, there was no loss of life, no reports of gunshot wounds and the disturbance was more short-lived than in other areas. On August 12, police went down into the center of the slum and talked to residents, even handing out water and biscuits.[115]

Community activists attribute the general avoidance of force by the police in this area to the peace meetings between all candidates, a peace walk prior to the election and a constructive relationship between community leaders and the police command.[116]

Amnesty International and Human Rights Watch heard similar stories in other areas, of good relationships with local police where community policing approaches, rather than the deployment of paramilitary reinforcements, characterized the state’s response to the disturbances following the election.

GSU reinforcements were on standby in Korogocho and in Kariobangi, but in both places, local police chiefs kept them out of sight. The Officer Commanding Station (OCS) in Kariobangi explained: “Because the members of the public, if they see a large number of police, they will want to retaliate.”[117] Such restraint went a long way to reducing violence, and is a key lesson for the police from the events of August 2017.

Community activists who made lists of victims of police violence at the hands of GSU praised the OCS in Korogocho for his role in averting major violence. The experience of these two areas provides a stark alternative example to police responses elsewhere and shows that police can abide by international standards. It also demonstrates the benefits of the work invested in community relationships by the Kenya police and the support that donors have provided for this work. It is unfortunate that commanders in other areas apparently did not show similar leadership.

IV. Suppression of Freedom of Expression

Police sought to cover up the crackdown by smashing phones and cameras used to document the police response to the protests.

The Committee to Protect Journalists (CPJ) has documented the cases of at least 10 journalists countrywide who reported being harassed by security services and prevented from doing their job during the election period.[118] The threats of arrest after the elections from the Nairobi police chief also played a part in intimidating journalists and disrupting their work.

Police smashed the camera of well-known international photographer, Neil Shea, in Kibera when he tried to photograph a youth leader being beaten.[119] In Mathare, an activist who tried to capture police on film had his camera snatched and smashed by police. They then beat him for the attempt, saying, he said: “if you film us, it can be used as evidence, we can lose our jobs.”[120] Such experiences were common during the protests.[121]

Police obstructed and ejected from the area journalists who were covering protests in Kibera. Kenya Television Network journalist Duncan Khaemba and cameraman David Okech were arrested for not possessing a permit for their protective clothing, whilst Wall Street Journal correspondent, Matina Stevis was hit with a stick and told to leave the area along with others.

Police also threatened human rights defenders. In Mathare, researchers spoke to four human rights defenders who fled their homes after threats from police who told them to “stop telling lies”.[122] In the end, seven human rights defenders from Nairobi who reported threats from police were relocated by human rights groups for their safety.[123]

Linked to the post-election violence and attempts to suppress reporting about it was the government’s attack on human rights organizations, Kenya Human Rights Commission (KHRC) and the Africa Centre for Open Governance (AfriCOG). In mid-August both groups were ordered to close and had their bank accounts frozen by the NGO Coordination Board.[124] KHRC was part of a coalition of organizations monitoring police behavior, and AfriCOG is one of the foremost funders, supporters and trainers of the many community-based paralegal organizations that offer legal advice and human rights monitoring in the slums.

Some commentaries have focused on the possible role of these organizations in supporting a petition challenging the election result, and an attempt by the government to impede that process, as a possible motivation for the closure. But the impact on their work at the grassroots level was far more significant, and disrupted efforts to document rights violations in informal settlements and Kisumu.[125] The order also diverted other human rights organizations from the central work of documenting the post-election violence.

V. Response of Government Agencies

Under Kenyan law, police may use lethal force only when necessary for self-defence or to save a life. Section 4 of the Sixth Schedule of the National Police Service Act of 2011 requires police officers who use lethal force to report to their immediate superior explaining the circumstances that necessitated the use of force. Section 5 of the same act requires officials to report any use of force that leads to death or serious injury to IPOA for investigation. At time of writing, the police have not complied with this requirement to date.[126]

The government’s response has largely been to deny the scale of the violence. Even as the clashes were ongoing, the acting Cabinet Secretary for the interior, Fred Matiang’i, claimed on August 12 that police had not used firearms, nor killed anyone. He claimed all demonstrators were looters and thus implied they were legitimate targets for shooting.[127] The cabinet secretary suggested that the few people who might have been killed were criminals who were looting shops and that police had only acted to thwart such criminal attempts. Matiang’i said:

Peaceful demonstrations and picketing are protected by the Constitution and our police always act according to the law. Individuals or gangs that are looting shops, that want to endanger lives, breaking into people’s businesses; those are not demonstrators, they’re criminals.[128]

According to victims at time of writing, IPOA has taken statements from families and witnesses in at least six cases of police shooting so far. IPOA refused to share with researchers information that it said related to ongoing investigations. However, IPOA had a standing arrangement with the NGO Independent Medical Legal Unit (IMLU) during the crisis, which provided IPOA with some insights into the cases of dead and injured referred by monitors. One shooting victim told researchers that IPOA had visited him in hospital.

However, IPOA has to date not proven effective at investigating police, concluding at least seven cases since its inception in 2012.[129] During those years, rogue police activity, especially by the Anti-Terror Police Unit (ATPU) has gone unchecked.[130] Donor support for the ATPU, and a wilful blindness to its violations, means that even as donors support and fund community engagement initiatives, they are not speaking with one voice on accountability for police. Police reform in Kenya still has a long way to go.[131]

Unsurprisingly, sources within IPOA told Reuters journalists that the police were not cooperating with them in their investigations into police actions in the post-election period.[132] And the experience of the family of Festo Kivogo, (see above), for whom even the intervention of IPOA could not secure the release of the post-mortem into his death, suggests that IPOA faces an uphill struggle to establish facts and prosecute cases.

Many relatives told researchers that they could not afford a post-mortem, nor did they see the point of reporting the death saying “the police cannot investigate themselves.”[133] Ordinarily under Kenyan law, a family needs to register a complaint or express doubt about the cause of death for the state to order a post-mortem.[134] In practice though, most families are asked to pay.

Neither police nor IPOA have come to visit the families of many victims, especially relatives of those killed in Kawangware.[135] The potential extent of police killings in the 2017 post-election period, at least 50 nationwide, requires a broader investigation which should include penetrating questions over the planning, deployments, command and orders given. IPOA does not in practice have the requisite independence, nor does it have sufficient powers or resources, for the scope of investigations required, especially given the power of some of the people who must be subject to scrutiny. Hence the need for a judicial inquiry.

As shown in this report, there were far more abuses by police in opposition-populated areas where GSU/paramilitary police deployed. Some residents and rights activists have claimed that the police action was indeed not a preventive response to spontaneous demonstrations and violence, but pre-meditated, selective and punitive. Some weight is added to this claim by a comment made by one police officer interviewed for this report who said that an officer’s decision not to deploy GSU in his area – although it may have been sensible and life-saving – might not have been what his superiors wanted.[136] That such a thought is even possible is cause for grave concern.

Acronyms and Abbreviations

AP: Administration Police, one of two branches of National Police Service

AfriCOG: Africa Centre for Open Governance

ATPU: Anti-Terror Police Unit

CPJ: Committee to Protect Journalists

GSU: General Service Unit

ICCPR: International Covenant on Civil and Political Rights

IEBC: Independent Electoral and Boundaries Commission

IMLU: Independent Medical Legal Unit

IPOA: Independent Policing Oversight Authority

KHRC: Kenya Human Rights Commission

KYSY: Kura Yangu Sauti Yangu, a group of NGOs monitoring the 2017 general election)

NASA: National Super Alliance coalition, a coalition of opposition parties

OCS: Officer Commanding Station

 

[1] ICCPR Article 6; African Charter Article 4.

[2] ICCPR Article 7, African Charter Article 5.

[3] ICCPR, Articles 19 and 21; African Charter Articles 9 and 11.

[4] UN Code of Conduct Article 2.

[5] UN Code of Conduct Article 3; UN Basic Principles, Principle 4; Policing Assemblies in Africa, Guideline 21.1.

[6] UN Basic Principles, Principle 5. Policing Assemblies in Africa, Guideline 21.2.2.

[7] UN Basic Principles, Principles 9 and 10; Policing Assemblies in Africa, Guideline 21.2.3.

[8] UN Basic Principles, Principle 14; Policing Assemblies in Africa, Guidelines 21.2.3, 21.2.4, 22.6.

[9] UN Basic Principles, Principle 2; Policing Assemblies in Africa, Guideline 21.3.1.

[10] Policing Assemblies in Africa, Guideline 21.2.6.

[11] Policing Assemblies in Africa, Guidelines 6.2, 11, 13, and 20.

[12] Policing Assemblies in Africa, Guideline 14.

[13] UN Basic Principles, Principles 22, 6 and 11(f); Policing Assemblies in Africa, Guideline 24.

[14] UN Basic Principles, Principle 7.

[15] UN Basic Principles, Principle 24; Policing Assemblies in Africa, Guideline 5.2.

[16] Human Rights Watch, “Ballots to Bullets: Organized Political Violence and Kenya’s Crisis of Governance,” 2008, https://www.hrw.org/reports/2008/kenya0308/ and, Human Rights Watch, “High Stakes: Political Violence and the 2013 Elections in Kenya” 2013. (Accessed September 25, 2017).

[17] Amnesty International, “Crying for Justice: Victims’ perspectives on justice for the post-election violence in Kenya,” 2014, https://www.amnesty.org/en/documents/afr32/001/2014/en/. (Accessed September 25, 2017).

[18] Amnesty International, “How the Other Half Lives: Nairobi’s Slum-Dwellers, Kenya,” 2009 https://www.amnesty.org/en/documents/afr32/006/2009/en/ see also http://www.kibera.org.uk/facts-info/. (Accessed September 25, 2017).

[19] Mathare Social Justice Centre, “Who’s Next? A participatory action research report against the normalization of extrajudicial executions in Mathare,” 2017, http://www.matharesocialjustice.org/who-is-next/. (Accessed September 25, 2017).

[20] Amnesty International and Human Rights Watch interviews, Nairobi, August 2017.

[21] The Standard, “Kenyans Apprehensive as Police Map Out Poll Hotspots,” July 16. 2017, https://www.standardmedia.co.ke/article/2001247711/kenyans-apprehensive-as-police-map-out-poll-violence-hot-spots. (Accessed September 25, 2017).

[22] Ibid.

[23] Amnesty International and Human Rights Watch interviews, Nairobi, August 2017.

[24] There were eight presidential candidates in the August 8 election, but the race as widely seen to be between the incumbent President Uhuru Kenyatta and the leading opposition candidate, Raila Odinga. The other six presidential candidates included Dr Ekuru Aukot, Prof Michael Wainaina, Cyrus Jirongo, Joseph Nyagah, Abduba Dida and Japheth Kavinga; https://www.capitalfm.co.ke/news/2017/05/iebc-clears-8-presidential-cand....

[25] Jubilee supporters also went out to the streets that night, celebrating Uhuru Kenyatta’s win. Police did not disperse those celebrating the incumbent president’s win.

[26] Human Rights Watch interview, Nairobi, August 2017.

[27] Human Rights Watch and Amnesty International Interview with human rights activist, Kibera, September 1, 2017; interview with two witnesses, Kibera, September 29, 2017.

[28] See press statements of Kenya Red Cross and MSF as well as Amnesty International interviews with health providers in Kibera, September 2, 2017.

[29] See Chapter 1, above.

[30] Human Rights Watch interview, Mathare, August 23, 2017.

[31] Ibid.

[32] Human Rights Watch interview with witnesses and relatives of victims, Mathare 4A – C area, August 23, 2017.

[33] Human Rights Watch interview with victim and witness of the beating, Mathare 4A – C area, August 23, 2017.

[34] Ibid.

[35] Human Rights Watch interview with relative of victim, Mathare 4A – C area, August 23, 2017.

[36] Ibid.

[37] Human Rights Watch interview with relative to Bernard, Mathare 4A – C area, August 23, 2017; interview with relative to Victor, Mathare 4A, August 23, 2017.

[38] Amnesty International interview, Mathare, August 31, 2017.

[39] Human Rights Watch interview with relative to Bernard, Mathare 4A – C area, August 23, 2017; interview with human rights activist, Bondeni area, August 23, 2017.

[40] Amnesty International interview with relatives and neighbours, Kwangware, September 2, 2017

[41] Amnesty International interview, Kawangware, September 2, 2017

[42] Post-mortem and police report, seen by Amnesty International, September 2, 2017

[43] Human Rights Watch interview with family member to Raphael, Babadogo, August 23, 217; interview with relative to Privel, Babadogo, August 23, 2017.

[44]Human Rights Watch interview with family member to Raphael, Babadogo, August 23, 217.

[45] Ibid.

[46] Human Rights Watch interview with a relative, Babadogo, August 23, 2017.

[47] Human Rights Watch phone interview with Sheddy’s father, Babadogo, August 23, 2017.

[48] Human Rights Watch interview with relative of Juma, Babadogo, August 24, 2017.

[49] Human Rights Watch interview, Kibera, August 29, 2017.

[50] Amnesty International interview, Kibera, September 3, 2017.

[51] Amnesty International interviews, Kibera, September 3, 2017.

[52] Amnesty International, interview, Kibera, September 3, 2017.

[53] Amnesty International interview, Kibera, September 3, 2017.

[54] Amnesty International interviews, Kibera, September 3, 2017.

[55] Amnesty International interviews, Kibera August 25 and September 3, 2017.

[56] Amnesty International interviews, Mathare, August 25, 2017.

[57] Human Rights Watch interview with victim of police beating, Mathare 4A – C area, August 23, 2017.

[58] Amnesty International interview, August 30, 2017.

[59] Amnesty International interview, Kibera, August 28, 2017.

[60] Amnesty International interview, Kibera, August 28 and Facebook post of Neil Shea, August 29, 2017.

[61] Amnesty International interviews, Dandora phase 4, August 31, 2017.

[62] Human Rights Watch interview, Dandora, August 25, 2017.

[63] Human Rights Watch interview, Dandora, August 26, 2017.

[64] Amnesty International interview, August 31, 2017.

[65] Amnesty International interviews, Dandora, August 31, 2017.

[66] Amnesty International interview, Dandora, August 31, 2017.

[67] Human Rights Watch interview, Dandora, August 26, 2017.

[68] Human Rights Watch interview, Dandora, August 26, 2017.

[69] Amnesty International interview, Dandora, August 31, 2017.

[70] Amnesty International interview, Dandora, August 31, 2017.

[71] Amnesty International interviews, Kawangware, September 2, 2017 and Human Rights Watch interview, Kawangware, September 11, 2017.

[72] Amnesty International interviews, Kawangware, September 2, 2017.

[73] Human Rights Watch interviews, Kawangware, September 8, 2017.

[74] “56 stage” is a terminus for public service vehicles plying Kawangware – Nairobi Central Business District route. The area around there is generally known as “56 stage”.

[75] Human Rights Watch interview, Kawangware, September 11, 2017.

[76] Amnesty International interviews, Kawangware, September 2, 2017.

[77] Human Rights Watch interview, Kawangware, September 8, 2017.

[78] Human Rights Watch interview, Kawangware, September 11, 2017.

[79] Human Rights Watch interview, Kawangware, September 11, 2017.

[80] Human Rights Watch interviews, Kawangware, September 8, 2017.

[81] Human Rights Watch interview, Kawangwae, September 11, 2017.

[82] Human Rights Watch interview, Kawangware, September 8, 2017.

[83] Human Rights Watch interview with relative, Kawangware, September 11, 2017; interview with family friend, Kawangware, September 11, 2017.

[84] Human Rights Watch interview, Kawangware, September 8, 2017.

[85] Human Rights Watch interview, Kawangware, September 8, 2017.

[86] Amnesty International interviews, Kawangware, September 2, 2017.

[87] Amnesty International interview, Kibera, August 29, 2017.

[88] Amnesty International interviews, Kibera, September 3, 2017.

[89] Amnesty International interview, Kibera, August 29, 2017.

[90] Human Rights Watch interviews, Kibera, August 29, 2017.

[91] Amnesty International interview, Kibera, August 29, 2017.

[92] Human Rights Watch interview, Kibera, August 29, 2017.

[93] Human Rights Watch interview with community mobiliser, Mathare, August 24, 2017; interview with school teacher and victim of police beatings, Mathare 4A, August 23, 2017; interview with youth leader who assisted several victims, Mathare 4A, August 23, 2017.

[94] Human Rights Watch interview with human rights activist, Mathare, August 23, 2017.

[95] Human Rights Watch interview with relative, Kawangware, August 8, 2017.

[96] Human Rights Watch joint interview with relatives to Bonface and David, Mathare – Bondeni area, August 24, 2017.

[97] Human Rights Watch interview with multiple victims, Mathare 4A – C area, August 23, 2017; interview with multiple victims and community leaders, Mathare 4A – T area, August 24, 2017.

[98] Human Rights Watch interview with relative of victim, Mathare 4A, August 23, 2017; interview with spouse of victim, Mathare North, August 24, 2017.

[99] Human Rights Watch interview with a human rights activist, Mathare 4A – C area, August 23, 2017.

[100] Records at Nairobi City Mortuary, on file.

[101] Human Rights Watch interview with family member, Mathare North, August 24, 2017.

[102] Ibid.

[103] Human Rights Watch interview with victim of police beating, name withheld Mathare 4A – C area, August 23, 2017.

[104] Human Rights watch interview with multiple victims of police beatings, Mathare 4A – C area and Mathare 4A – T area, August 24, 2017.

[105] Human Rights watch interview with relative of victim, Mathare 4A – C area, August 23, 2017.

[106] Ibid.

[107] Human Rights Watch interview with human rights activist, Babadogo, August 23, 2017; interview with two witnesses to the killings, Babadogo, August 23, 2017.

[108] Ibid.

[109] Human Rights Watch interview with victim of shooting, Babadogo – Kasabuni area, August 23, 2017.

[110] Amnesty International interview with Chief Inspector, Korogocho Police Post, August 30, 2017.

[111] Amnesty International interview with Chief Inspector, Korogocho Police Post, August 30, 2017.

[112] Ibid.

[113] Amnesty International interview, Kariobangi, August 31, 2017.

[114] Ibid.

[115] Amnesty International interviews, Kariobangi, August 31, 2017.

[116] Ibid.

[117] Amnesty International interview, Kariobangi, August 31, 2017.

[119] Amnesty International interview, Kibera, August 28, 2017.

[120] Amnesty International interview, Mathare, August 27, 2017.

[121] See Human Rights Watch “Not Worth the Risk: Threats to Free Expression Ahead of Kenya’s 2017 Elections” May 30, 2017; https://www.hrw.org/report/2017/05/30/not-worth-risk/threats-free-expression-ahead-kenyas-2017-elections (accessed October 1, 2017).

[122] Human Rights Watch interviews, Mathare, August 14, 2017.

[123] Amnesty International interview with a human rights defender network, Nairobi, August 28, 2017.

[124] ‘UN, Amnesty condemn NGO board over AfriCOG, KHRC attacks’ The Nation, August 15, 2017 http://www.nation.co.ke/news/UN-Amnesty-condemn-NGO-board-AfriCOG-KHRC/1056-4058566-8ryftpz/index.html (accessed October 1, 2017).

[125] ‘Exposed: Why ‘Statehouse’ ordered closure of KHRC, AfriCOG, arrest of activists,’ Kenya Today, August 16, 2017 https://www.kenya-today.com/politics/exposed-statehouse-ordered-closure-.... (accessed October 1, 2017).

[126] Human Rights Watch, correspondence with IPOA, September 18, 2017.

[127] ‘Matiang’i denies use of live bullets, deaths, in post-election protests,’ The Star, August 12, 2017, https://www.the-star.co.ke/news/2017/08/12/matiangi-denies-use-of-live-bullets-deaths-in-post-election-protests_c1615392 (accessed October 1, 2017).

[128] Jeremiah Wakaya, “Matiang’i denies protesters killed by police, warns protesters will be crushed,” Capital FM Online, August 12, 2017; http://www.capitalfm.co.ke/news/2017/08/matiangi-denies-protesters-killed-by-police-warns-violence-will-be-crushed/.

[129] Human Rights Watch interview with IPOA, Nairobi, 2016; Under the law, both IPOA and Kenya National Commission on Human Rights, a constitutional commission, have power to investigate police misconduct. IPOA refers cases it has investigated to the office of the Director of Public Prosecutions for prosecution; KNCHR can either refer to the DPP or prosecute by itself. The DPP can order investigations into police misconduct. National Police Service Commission generally does not investigate such abuses, but where information is made available to it, the commission can institute disciplinary proceedings against officers implicated in use of excessive force or unlawful killings.

[130] See Human Rights Watch, ‘Kenya: Killings, Disappearances by Anti-Terror Police,’ August 18, 2014, https://www.hrw.org/news/2014/08/18/kenya-killings-disappearances-anti-terror-police; and Kenya National Commission on Human Rights, ‘The Error of Fighting Terror with Terror’, (2015) http://www.knchr.org/Portals/0/CivilAndPoliticalReports/Final%20Disappearances%20report%20pdf.pdf.

[131] Amnesty International, ‘A Drop in the Ocean: Police Reform in Kenya,’ 2013, https://www.amnesty.org/en/documents/afr32/001/2013/en/2013.

[132] ‘Kenya Police not cooperating with watchdog over election deaths: sources.’ Reuters, September, 6, 2017 http://af.reuters.com/article/africaTech/idAFKCN1BH25Q-OZATP.

[133] Human Rights Watch interview, Kawangware, September 8, 2017.

[134] The relevant law is the Criminal Procedure Code, 1931.

[135] Amnesty International and Human Rights Watch interviews, Kawangware September, 2017.

[136] Amnesty International interview, Nairobi, date withheld.

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

Efforts to bring those responsible for atrocities in Syria before European courts are starting to bear fruit, notably in Swedish and German courts, Human Rights Watch said in a report released today. While various authorities in Europe have opened investigations of serious international crimes committed in Syria, Sweden and Germany are the first two countries that have prosecuted and convicted people for these crimes. Drawing on interviews with 50 officials and practitioners working on these cases and 45 Syrian refugees in the two countries, Human Rights Watch documented the difficulties German and Swedish investigators and prosecutors face in taking up these types of cases, and the experience of refugees and asylum seekers with the authorities. 

Posted: January 1, 1970, 12:00 am

Efforts to bring those responsible for atrocities in Syria before European courts are starting to bear fruit, notably in Swedish and German courts. While various authorities in Europe have opened investigations of serious international crimes committed in Syria, Sweden and Germany are the first two countries that have prosecuted and convicted people for these crimes.

 

(New York) – Efforts to bring those responsible for atrocities in Syria before European courts are starting to bear fruit, notably in Swedish and German courts, Human Rights Watch said in a report released today. While various authorities in Europe have opened investigations of serious international crimes committed in Syria, Sweden and Germany are the first two countries that have prosecuted and convicted people for these crimes.

The 66-page report, “‘These Are the Crimes We Are Fleeing’: Justice for Syria in Swedish and German Courts,” outlines efforts in Sweden and Germany to investigate and prosecute people implicated in war crimes, crimes against humanity, and genocide in Syria. Drawing on interviews with 50 officials and practitioners working on these cases and 45 Syrian refugees in the two countries, Human Rights Watch documented the difficulties German and Swedish investigators and prosecutors face in taking up these types of cases, and the experience of refugees and asylum seekers with the authorities.

“With other avenues for justice currently blocked, criminal investigations in Europe are a beacon of hope for victims of crimes in Syria who have nowhere else to turn,” said Maria Elena Vignoli, Leonard H. Sandler fellow in the international justice program at Human Rights Watch. “As the first two countries to hold trials and convict people for atrocities in Syria, Sweden and Germany are putting war criminals on notice that they will have to pay for their crimes.”

Syrian refugees consistently stressed to Human Rights Watch the importance of bringing to justice those responsible for atrocities committed in Syria.

“My brother was killed with 14 bullets by the regime,” said Samira, who lives in Sweden and lost several family members in the war. “All my family died. I saw five children being executed, I saw their heads being cut off. I couldn’t sleep for a week. […] It’s very important to have justice, which will let me feel that I’m human.”

Muhammad, an activist working on behalf of some Syrian victims in Germany, said of the Syrian government: “These people think that the political solution will come and they will be able to escape to Europe. I want them to feel haunted like they’ve haunted people all their life. We need to send a message of hope to victims and to send the message to criminals that they will not escape.”

On September 25, Sweden became the first country to convict a member of the Syrian army for crimes in Syria. The accused, identified through a photo in which he posed with his foot on the chest of a dead victim, was found guilty of violating the dignity of a dead body.

Both Sweden and Germany have elements in place to allow for the successful investigation and prosecution of grave crimes, including comprehensive laws, well-functioning specialized war crimes units, and previous experience with such cases. In addition, due to the large numbers of Syrian asylum seekers and refugees, previously unavailable victims, witnesses, material evidence, and even some suspects are now within the reach of the authorities in these countries.

Nonetheless, Human Rights Watch found that both Sweden and Germany are facing some difficulties.

“The standard challenges associated with pursuing these kinds of cases are compounded by an ongoing conflict in Syria, where there is no access to crime scenes,” Vignoli said. “Swedish and German authorities have to turn elsewhere for information, including from Syrian refugees, people doing similar work in other European countries, UN entities, and nongovernmental groups documenting atrocities in Syria.”

Human Rights Watch found that many Syrian asylum seekers and refugees are not aware of the systems in place to investigate and prosecute grave crimes in Syria, the possibility of their contributing to justice efforts in these countries, or the right of victims to participate in criminal proceedings.

Gathering relevant information from Syrian refugees and asylum seekers has also proved difficult due to their fear of possible retribution against loved ones back home, mistrust of police and government officials based on negative experiences in Syria, and feelings of abandonment by host countries and the international community.

Both Sweden and Germany have systems to protect victims and witnesses in criminal cases. Consistent with fair trial standards, both countries should explore options to increase protections in these cases for witnesses’ families in Syria, Human Rights Watch said.

Because of the difficulties involved, Human Rights Watch found only a small number of cases have been concluded, which do not represent the scale or nature of the abuses suffered by victims in Syria. Most cases have been against low-level members of non-state armed groups opposed to the Syrian government.

In Germany, the majority of cases are brought under terrorism charges rather than for grave international crimes. That could send the message that the authorities’ only focus is to combat domestic threats, Human Rights Watch said. Efforts to pursue terrorism charges should go hand in hand with efforts and resources to investigate and prosecute war crimes, crimes against humanity, and genocide.

Authorities in both countries are working to address some of these issues, although more needs to be done, Human Rights Watch said. Sweden and Germany should ensure that their war crimes units are adequately resourced and staffed, provide them with ongoing training, and consider new ways to work with Syrian refugees and asylum seekers on their territory through outreach and public information efforts.

“European countries should follow Sweden and Germany’s lead and work to expand these justice efforts for Syrians in Europe,” Vignoli said. “Overall, these cases are not enough on their own and highlight the need for a more comprehensive justice process to address the ongoing impunity in Syria.”
 

Posted: January 1, 1970, 12:00 am

What kind of cases have been brought to trial so far?

To date, seven cases for war crimes in Syria were brought to trial, three in Sweden and four in Germany. These few cases have mostly been against members of the Islamic State [ISIS], Jabhat al-Nusra – an affiliate of Al-Qaeda, and rebel groups. Only one has addressed crimes committed by a member of the Syrian army.

In Sweden and Germany, you can only bring to trial people who are present in your territory. So only low-level people who happen to be present in those countries have been brought to trial so far. The high-level people are still in Syria. But you can preserve and collect evidence for future prosecutions. Also, these countries can potentially issue arrest warrants for alleged perpetrators still in Syria.

These prosecutions are important to send the message that Europe is not a safe haven for war criminals, that if you commit those crimes and come to Europe you will be brought to justice, and that even in the Syrian conflict there are repercussions for these crimes. Syrian refugees can play a key role in helping authorities in Europe build cases against people who are identified as having committed crimes back in Syria.


Justice for Syria is a very long-term project. These cases in Europe are just the first small steps, and we want to see more of them.

What kind of evidence has been used in the current trials?

Many of these cases stemmed from photos and videos depicting the crimes. As far as we know, none of these cases happened because of evidence gathered by victims, although we hope to see more of that as authorities improve their engagement with Syrian refugees. Information provided by Syrian activists has been crucial in at least one of these cases.

Have arrest warrants been issued for people currently in Syria?

Not yet. In Germany, there are two claims that have been brought by victims and nongovernmental organizations against high-level Syrian officials. The federal prosecutors are deciding whether to open an investigation, and if there’s enough evidence, they can issue an arrest warrant for these people in Syria. They can’t be prosecuted until they set foot in Germany, but it does send them a message – if you commit war crimes and come to Germany, you will face justice.

Efforts to bring those responsible for atrocities in Syria before European courts are starting to bear fruit, notably in Swedish and German courts. While various authorities in Europe have opened investigations of serious international crimes committed in Syria, Sweden and Germany are the first two countries that have prosecuted and convicted people for these crimes.


Who did you speak to for this report?

We interviewed 45 Syrian refugees in Sweden and Germany. Twenty-two told us they’d been detained in Syrian government facilities and 16 told us they had been tortured while in detention.

Some told us they witnessed widespread torture and killings. Some were also wounded in attacks on their cities.

Why are we asking for justice as opposed to more immediate needs, like better shelter or healthcare?

It’s not a one-or-another question. First, because we believe in human rights and rule of law, there is an obligation to hold those who commit horrible crimes and violate our core values accountable for their actions. Second, lasting peace does not happen without a measure of justice and accountability that address the underlying causes of the conflict. Then there’s the more personal need for justice for these victims. When I asked the Syrians I interviewed why justice was important for them, they gave me very compelling answers.

What did they say?

One of our interviewees was a woman in her 20s from Raqqa, who was held by ISIS fighters. She said she saw Syrian government soldiers fire 14 bullets into her brother and kill him. She also said she watched five children have their heads cut off. “I couldn’t sleep for a week,” she said.  When I asked her about justice, she said, “It’s very important to have justice, which will let me feel that I’m human.”

I also spoke with a man who, while detained in Syria, made a pact with his fellow inmates that the first one to get out would bring their names out, letting their families know what happened to them. They wrote their names on this piece of cloth, and for ink they used blood from their gums – they were so malnourished their gums were bleeding – mixed with rust from the prison. He was the first one to get out and smuggled out the list. He told me, “Having these trials will bring justice to the victims and will deter people [from committing these crimes]. It will send the message that in the end we will hold you responsible.”

What do you want to see happen in Europe when it comes to these cases?

The officials pursuing these cases are doing a great job, considering the challenges. Just to give you an example, in Germany, investigators are swamped with information they get from different sources, including immigration authorities and the general public. As of this summer, they had received more than 4,000 tips, which they analyze to find relevant information for their investigations. Swedish and German investigators and prosecutors need more manpower and money to do their work effectively.

We also found that both Sweden and Germany are having difficulties reaching out to Syrian refugees and asylum seekers. It’s partly because Syrians don’t trust police and government authorities – they’re afraid, they fled horrible crimes and still have families in Syria, and they don’t want to talk openly. And most of them don’t know these cases are even possible. We would like to see better outreach from authorities towards these communities. It allows people to know what’s happening and how to actively participate in working towards justice.

Why is this important now, with the war still ongoing?

Crimes are still being committed on a daily basis, and we need to tell people that this is not okay. They will face the consequences of what they’re doing. One Syrian activist told me about members of the Syrian government, “These people think that the political solution will come and they will be able to escape to Europe. I want them to feel haunted like they’ve haunted people all their life.”

What struck you about your research?

The resilience and strength of people. These people have suffered horrible crimes, they lost everything, yet they still keep going and fighting for justice.

One of the refugees I interviewed was detained when he was 16; he was a child. He was in jail for three years, where he was tortured. He’s this young man now, living in Sweden, who’s very open about his experience. He’s now fluent in Swedish and the week I was there he had organized a talk in a public library to discuss his experience. He looks like your regular 20-something guy, someone who should have regular problems, like with university and love and family. Then he starts telling you about what happened to him and he does it with a smile on his face and you’re completely blown away by how resilient and how strong this person is.

Talking with people like him cemented in me the conviction that we can’t let people who commit these crimes be free. They shouldn’t be able to comfortably live cushy lives in some other country once the conflict is over. Imprisoning criminals deters others from following in their footsteps, and gives victims an important sense of justice.

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

COX’S BAZAR, Bangladesh – In Bangladesh’s overflowing and squalid camps for the hundreds of thousands of Rohingya fleeing the Burmese army’s campaign of ethnic cleansing, I met three remarkable women who told me their stories of horror and survival in the village of Tu Lar To Li.

Rashida, 25, spoke so softly that she was often hard to hear because Burmese soldiers had cut her throat and left her for dead in a burning house. (I refer to Rashida and others mentioned in this article solely by their first names in order to ensure their security.)

She said the soldiers trapped her and fellow villagers at the river’s edge, separated men from women and children, and made the women and children stand in waist-deep water as the soldiers gunned down their husbands, fathers and brothers. The river that runs alongside Rashida’s village — the villagers’ only hope for an escape route from gunfire pouring in on them from security forces — was too deep to cross.

Then, as some soldiers collected and burned the men’s bodies, others began taking away the women and children in small groups.

Four soldiers took Rashida and four other women to a house. Rashida said that at the house, a soldier grabbed her 28-day-old baby, Mohammed Eukhan, from her arms and smashed him on the floor, killing him instantly. Two other women’s young infants were killed in the same way. The soldiers then began slashing at the terrified women with knives and machetes, and cut their throats.

Rashida woke up in a burning, locked house, and the first thing she saw was her dead baby next to her. She managed to crawl through a burning bamboo wall and escaped. She was the only survivor from the group of five women and their children. Satellite imagery analyzed by Human Rights Watch shows the entire village razed by fire.

Human Rights Watch has since 2012 found that the Burmese government has committed crimes against humanity against the Rohingya population in Rakhine State. Since Aug. 25, when an armed group calling itself the Arakan Rohingya Salvation Army attacked about 30 police outposts in northern Rakhine State, Burmese security forces have carried out mass arson, killing, rape and looting, destroying hundreds of villages and forcing more than 400,000 Rohingya to flee to neighboring Bangladesh. Given the scale and overall context of these latest atrocities, together with evidence of intent on the part of the Burmese military, Human Rights Watch believes that these more recent crimes also constitute crimes against humanity. The fact that the powerful military is behind these acts means that there is almost no chance that the government will bring key perpetrators to justice.

Two days before I spoke with Rashida, I had met Hassina, 20, and her sister-in-law Asma, 18, who had been with the same group during the massacre. They had also witnessed the killing of the men as they were forced to stand in the water and had suffered similar horrors.

Hassina said that while the soldiers were burning the bodies of the men they had killed, one of them noticed that she was trying to hide her year-old daughter, Sohaifa, under her robes. The soldier came over and ripped Sohaifa from Rashida’s arms, and tossed the infant alive on the fire burning the men’s bodies.

Hours later, the soldiers took Hassina, Asma, Hassina’s mother-in-law, Fatima, 35, and three of Fatima’s young children to a nearby house. They tried to rape the women, knifing Fatima to death when she resisted, and then beating Hassina and Asma unconscious. The three children were beaten to death with spades, Hassina and Asma said.

When Hassina and Asma regained consciousness, they found themselves in a burning, locked house. They managed to escape the flames, but with serious burns. Asma showed me the big gash on the back of her head from when she had been beaten unconscious. A doctor had stitched it up.

Such graphic accounts of the horrors unfolding in Burma seem too terrible to be true, but these are what Human Rights Watch researchers are hearing day after day, and they are too consistent and credible to be dismissed as fabrications or exaggerations.

Let there be no doubt: The Burmese army is engaged in horrific atrocities in its ongoing campaign of ethnic cleansing against the Rohingya. When soldiers shoot men in their custody, hack women and children to death, and burn their homes, the world needs to pay attention and act together to stop these crimes.

And although the surging river waters near Tu Lar To Li may wash away the blood and ashes of the people brutally killed and burned by the army, the nations of the world should not ignore these crimes. The U.N. Security Council and concerned governments need to take immediate action by imposing an arms embargo and targeted sanctions on military leaders and pursue all avenues to hold those responsible to account. More specifically, the council should refer the situation in Burma to the International Criminal Court. Victims such as Rashida, Hassina and Asma, who have lost almost everything, at least deserve justice.

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

(Conakry) – Guinea should move ahead to deliver justice, truth, and reparation for the grave crimes committed on September 28, 2009, at a Conakry stadium, Human Rights Watch, Amnesty International, and the Association of Victims, Parents and Friends of the September 28 Massacre said today in advance of the massacre’s eighth anniversary. On that day, security forces massacred more than 150 peaceful protesters, and more than 100 women were raped. Hundreds of injuries and widespread looting were also documented.

In Guinea’s capital, Conakry, family members cry after identifying the body of a relative killed on September 28, 2009, when security forces fired on opposition supporters as they marched to and later held a rally in the September 28 Stadium. The body of their relative was one of 57 dead displayed at the Grand Fayçal Mosque on October 2, 2009.

© 2009 Reuters

An investigation into the crimes by a panel of Guinean investigating judges, opened in February 2010, has yet to be completed – eight years after the crimes were committed.

“The judges investigating the September 28, 2009 massacre have made impressive progress,” said Elise Keppler, associate international justice director at Human Rights Watch. “But the investigation needs to be completed so that those responsible for the stadium massacre can be tried without further delay.”

The investigation has made progress, overcoming political, financial, and logistical obstacles.

Current and former high-level officials have been charged, including Moussa Dadis Camara, the former leader of the National Council of Democracy and Development junta which ruled Guinea in September 2009, and his vice president, Mamadouba Toto Camara. Abubakar “Toumba” Diakité, Moussa Dadis Camara’s aide-de-camp, has also been charged and was extradited to Guinea in March after being at large for more than five years. However, several people who face charges still hold influential official positions in Guinea.

“That people suspected of criminal responsibility for the stadium massacre continue to hold senior official positions of power is an affront to victims and their families and sends the negative message that impunity is tolerated in Guinea,” said François Patuel, West Africa researcher at Amnesty International. “Anyone facing charges should be put on administrative leave until a final judicial determination of guilt or innocence is made, to ensure they don’t use their position and influence to undermine proceedings.”

Judges have heard the testimony of more than 400 victims and their family members and have also questioned witnesses, including members of the security services.

Some aspects of the investigation are outstanding, such as locating mass graves believed to contain the bodies of about 100 victims who remain unaccounted for. Several people who held senior official positions at the time have not been heard or charged. But this should not be a basis for Guinean judicial authorities to delay the completion of the investigation.

The Guinean authorities should also ensure that human rights violations and abuses committed since the stadium massacre, including about 70 deaths during demonstrations, are adequately investigated and those responsible are brought to justice in fair trials.

The International Criminal Court (ICC), which opened a preliminary examination into the situation in Guinea in October 2009, has regularly reminded the Guinean government of its obligation to deliver justice for the 2009 crimes. The Guinean government should ensure that the investigations phase of the case moves ahead to trial.

The ICC is designed as a court of last resort. Under the principle of complementarity, the ICC only steps in when national courts are unable or unwilling to investigate and prosecute cases under its authority.

The International Commission of Inquiry, created by the United Nations secretary-general with a mandate to investigate the events in Conakry concluded that the massacres and other violent acts committed on September 28 and the following days constitute “crimes against humanity.”

“I am not getting through grief,” one of the rape victims told Amnesty International. “My life was thrown up in the air. The day after the soldiers raped me, my husband abandoned me and my daughter. Justice must be done and victims must get reparations.”

“The victims of the September 28 events suffered the worst forms of brutality and have been pressing for prosecutions for eight years,” said Asmaou Diallo of the Association of Victims, Parents and Friends of September 28 Massacre. “The victims deserve to see the wheels of justice turn forward.”

Posted: January 1, 1970, 12:00 am