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

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

© 2011 Reuters

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

 

1. Who is Hissène Habré?

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

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

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

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

2. What are the charges against Habré?

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

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

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

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

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

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

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

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

6. How did the chambers carry out their investigation?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11. How did the trial proceed?

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

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

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

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

13. What was the defense lawyers’ strategy?

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

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

14. How was information about the trial disseminated?

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

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

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

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

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

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

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

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

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

17. Will the victims receive reparations?

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

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

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

18. Can there be an appeal?

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

19. How are the Extraordinary Chambers structured and administered?

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

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

20. How were the prosecutors and judges assigned?

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

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

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

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

22. How are the chambers funded?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

27. Why isn’t Habré prosecuted in Chad?

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

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

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

Posted: January 1, 1970, 12:00 am

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

Video

Act 1 of the Hissène Habré Trial

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

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

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

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

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

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

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

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

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

Posted: January 1, 1970, 12:00 am

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

Video

Hissène Habré Finally Facing Justice

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

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

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

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

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

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

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

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

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

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

Posted: January 1, 1970, 12:00 am

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

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

Anti-Balaka fighter in Gambo, Mboumou province, Central African Republic, on August 16, 2017. 

© 2017 Alexis Huguet

There is no doubt a peace deal could be transformative for the Central African Republic. Armed groups control 80 percent of the territory. Tens of thousands of people languish in internal displacement camps in the center of the country. About 1.2 million people are either refugees or internally displaced.

So there was cautious optimism last month when the parties agreed a new deal – the eighth since 2012 – in Khartoum under African Union auspices. But there are worrying signs that the peace deal is beginning to fray. Just this week reports surfaced of fighting in Basse Kotto province between Seleka from the Union for Peace in the Central African Republic on the one side, and anti-balaka on the other.  

When the mostly Muslim Seleka made their way toward Bangui in late 2012, they unleashed a new and brutal wave of violence against civilians. In late 2013, the Christian and animist anti-balaka militias began to organize counterattacks. But in those attacks, civilians also became the target. Both sides executed civilians, raped women and girls or took them as sex slaves, pillaged homes, and destroyed entire villages and neighborhoods.

I’ve spent much of the past six years traveling across the country, interviewing victims and their family members, and meeting with leaders of many of the armed groups as they fractured, made alliances with former enemies, and tried to remake themselves as political parties. In all the conversations with these leaders, there was one constant refrain: “this isn’t our fault, so we should not be held accountable for what happened. If civilians suffered, then we should talk about reconciliation, not justice. Justice will only lead to more problems.”

This question of justice was crucial, if complicated, in Khartoum. A key sticking point was the question of amnesty, sought by almost all the groups. During the talks, one rebel spokesman told journalists plainly, “We must have amnesty to have peace.”

The accord itself was signed days before the draft was made public, fueling speculation that the national government had offered broad amnesty or that prosecutions were to be frozen. In the end, the agreement was vague on next steps to ensure justice for serious human rights abuses, crimes against humanity and war crimes. It does not mention specific judicial processes or recent efforts to promote justice in the country.

Representatives of some of the armed groups told me that they believe this means an amnesty has been granted, even though the word is not mentioned. They consider establishment of a Truth, Justice, Reconciliation and Reparation Commission an alternative to criminal accountability.

But they are ignoring that the accord clearly recognizes the role impunity has played in entrenching “cycles of violence.” This important point echoes the conclusions of the Bangui Forum, national consultations held from May 4 to 11, 2015 that brought together more than 800 representatives of community and other nongovernmental organizations, political parties, and armed groups from across the country. The forum stated that “no amnesty” would be tolerated for those responsible for and acting as accomplices in international crimes.

The establishment of a Truth Commission does not in any way prevent national and international judicial systems from doing their work. And much has already been accomplished.

Among the recent efforts has been the establishment of a new tribunal in the Central African Republic’s domestic court system to try war crimes and crimes against humanity. Known as the Special Criminal Court, it formally began operations in late 2018. The International Criminal Court (ICC) also has opened an investigation into crimes committed since August 2012. Late last year, the court arrested two leaders of the anti-balaka militias that were parties to the conflict, Alfred Yékatom and Patrice Edouard Ngaissona. The national judicial system continues to prosecute Seleka and anti-balaka leaders and fighters in criminal trials.

Peace dividends that can be gained from the deal are much needed. But so are fair and, credible prosecutions of the worst crimes to help ensure that rampant abuses in the Central African Republic, fueled by the lack of accountability, are brought to an end.

The government and its international partners should make clear to the armed groups and to the civilians who have suffered since 2012 that a Truth Commission does not equal amnesty. They can do this by providing continued support for the national judiciary, the Special Criminal Court, and the ICC’s investigation and prosecution of grave crimes.

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

 

 

This Q&A addresses key questions regarding the International Criminal Court (ICC) and the relationship between the court and the United States.

1. What is the International Criminal Court?

2. Is the US a member of the ICC?

3. What fair trial protections exist before the ICC?

4. Does the ICC override national authorities in carrying out investigations and prosecutions?

5. Why can the ICC investigate and prosecute US personnel?

6. Hasn’t the US already investigated alleged abuses by US military and CIA personnel in Afghanistan?

7. What has been the US relationship with the ICC?

8. What is the US position now on the ICC?

9. Could the ICC open an investigation in Palestine?

10. What safeguards exist at the ICC to prevent politically motivated cases?

11. Which countries support the ICC?

12. Has the ICC lived up to expectations?

Video

ICC: Victims of Atrocities Deserve Justice

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

1. What is the International Criminal Court?

The ICC is an independent judicial institution empowered to investigate and prosecute war crimes, crimes against humanity, genocide, and the crime of aggression. Its establishment in 2002 signaled the commitment of many countries to fight impunity for the worst international crimes. Currently, 123 countries are ICC members, giving the ICC authority, under its founding treaty, the Rome Statute, to investigate and prosecute crimes committed by their nationals or by anyone on their territory. As a matter of policy, the ICC prosecutor gives priority to cases against individuals who it determines are most responsible for the crimes under the court’s jurisdiction, regardless of their official position.

The court has been in operation since 2003. It has opened more than two dozen cases based on investigations in 10 countries, most of which are ongoing. The court’s prosecutor is considering whether investigations are needed in a further 10 countries. A request to open an investigation into crimes committed in the context of the armed conflict in Afghanistan, which could include alleged grave crimes related to detainee abuse by US personnel, is pending before the court’s judges.

2. Is the US a member of the ICC?

The US is not a state party to the Rome Statute. The US participated in the negotiations that led to the creation of the court. However, in 1998 the US was one of only seven countries – along with China, Iraq, Israel, Libya, Qatar, and Yemen – that voted against the Rome Statute. US President Bill Clinton signed the Rome Statute in 2000 but did not submit the treaty to the Senate for ratification. In 2002, President George W. Bush effectively “unsigned” the treaty, sending a note to the United Nations secretary-general that the US no longer intended to ratify the treaty and that it did not have any obligations toward it. However, since then, US relations with the court have been complicated but often positive (see question 7 below).

3. What fair trial protections exist before the ICC?

The ICC is designed to be an independent permanent tribunal that respects the highest standards of justice. The Rome Statute incorporates international fair trial standards to preserve a defendant’s due process rights, including: presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; right to an appeal; and protection against double jeopardy.

4. Does the ICC override national authorities in carrying out investigations and prosecutions?

Under international law, states have a responsibility to investigate and appropriately prosecute (or extradite for prosecution) suspected perpetrators of genocide, war crimes, crimes against humanity, and other international crimes. The ICC does not shift this responsibility. It is a court of last resort. Under what is known as the “principle of complementarity,” the ICC may only exercise its jurisdiction when a country is either unwilling or genuinely unable to investigate and prosecute these grave crimes.

Even after an investigation is opened, there are opportunities for states and individual defendants to challenge the lawfulness of cases before the court based on the existence of national proceedings.

5. Why can the ICC investigate and prosecute US personnel?

There are limited situations in which the ICC has jurisdiction over the nationals of countries such as the US that have not joined the Rome Statute.

This includes when a citizen of a non-member country commits war crimes, crimes against humanity, and genocide on the territory of an ICC member country. That’s why US citizens may be subject to the court’s jurisdiction as it investigates alleged grave crimes that took place in Afghanistan, which is a state party, or in Poland, Lithuania, and Romania, which are also states parties.

There is nothing unusual in this. US citizens who commit crimes abroad are already subject to the jurisdiction of foreign courts. This is a basic and well established principle of international law. Countries that ratify the Rome Statute are simply delegating their authority to prosecute certain grave crimes committed on their territory to an international court.

By providing accountability for war crimes, the ICC promotes respect for the laws of war, which protect civilians as well as soldiers.

With respect to Afghanistan, the parties to the armed conflict in the country have committed numerous violations of international humanitarian law, or the laws of war. The Taliban and other insurgent groups have committed targeted and indiscriminate attacks on civilians that have caused thousands of casualties. Afghan security forces and pro-government militias have committed torture, rape, enforced disappearances, and extrajudicial killings. The US military, Central Intelligence Agency (CIA), and other foreign forces have also committed serious abuses, particularly against people in custody.

6. Hasn’t the US already investigated alleged abuses by US military and CIA personnel in Afghanistan?

The US has conducted some investigations into alleged abuses by US personnel in Afghanistan, but they were limited in scope. In 2009, the US Department of Justice opened an investigation into 101 cases of alleged detainee abuse by the CIA, including the cases of two detainees who died in CIA custody, but no charges were brought. Human Rights Watch found no evidence that the investigators interviewed any victims of CIA torture. Moreover, the investigation was limited to abuses that went beyond the interrogation methods authorized by the Justice Department. Many of the authorized techniques were abusive – some clearly amounting to torture – and should have been included. A 2014 report by the US Senate Intelligence Committee concluded that the CIA covered up its crimes, including by making false claims to the Justice Department. The 6,700-page Senate report remains classified, but a redacted version of the 525-page summary shows that abusive CIA interrogation methods were far more brutal, systematic, and widespread than previously reported.

It is harder to evaluate the extent to which torture by the US military in Afghanistan has been investigated and prosecuted. In 2015, the United States reported to the UN Committee against Torture that the armed forces had begun 70 investigations into detainee abuse that resulted in trial by courts-martial, but no time period was provided, and no further information was publicly available.

7. What has been the US relationship with the ICC?

In the early years of the ICC, the George W. Bush administration led a hostile campaign against the court. For instance, the Bush administration pressured governments around the world to enter into bilateral agreements requiring them not to surrender US nationals to the ICC. But these efforts did little more than erode US credibility on international justice and gradually gave way to a more supportive US posture, starting in 2005. The US did not veto a UN Security Council request to the ICC prosecutor to investigate crimes in Darfur, Sudan in 2005 and it voted for the UN Security Council referral of the situation in Libya to the court in 2011.

US support was critical in the transfer to the court of ICC suspects Bosco Ntaganda, a Congolese rebel leader, in 2012 and Dominic Ongwen, a Lord’s Resistance Army commander, in 2015. In 2013, the US Congress expanded its existing war crimes rewards program to provide rewards to people providing information to facilitate the arrest of foreign individuals wanted by any international court or tribunal, including the ICC.

8. What is the US position now on the ICC?

Under President Donald Trump’s administration, the US government has said that it will not cooperate with the ICC and has threatened retaliatory steps against ICC staff and member countries should the court investigate US or allied country citizens.  On March 15, 2019, US Secretary of State Michael Pompeo announced that the US would impose visa bans on ICC officials involved in the court’s potential investigation of US citizens for alleged crimes in Afghanistan. He indicated the same policy may be used to deter ICC efforts to investigate nationals of allied countries, including Israelis.

National Security Advisor John Bolton first announced this approach in September 2018. Two weeks later, President Trump addressed the UN General Assembly stating that the “United States will provide no support or recognition to the International Criminal Court. As far as America is concerned the ICC has no jurisdiction, no legitimacy, and no authority.” On December 4, Pompeo reiterated the administration’s position towards the court during a speech in Brussels.

9. Could the ICC open an investigation in Palestine?

In his September 2018 speech on the ICC, National Security Advisor John Bolton indicated that the US would also take action against the ICC if court investigations concerned Israel. Since January 2015, the ICC prosecutor has been examining alleged serious crimes committed in Palestine since June 13, 2014, including war crimes and crimes against humanity, in what is known as a “preliminary examination.” On May 22, 2018, Palestine submitted a “referral” requesting the prosecutor investigate crimes under the ICC’s jurisdiction.

The prosecutor’s preliminary examination includes analyzing whether crimes specified in the Rome Statute have been committed; whether those crimes are sufficiently grave to merit the court’s attention; and whether national authorities are genuinely carrying out credible investigations and, if appropriate, prosecutions of the cases under ICC consideration, since the ICC is a court of last resort. In her office’s December 2018 annual report on all preliminary examinations, the prosecutor indicated that she “intends to complete the [Palestine] preliminary examination as early as possible.” Given Palestine’s referral, unlike the situation in Afghanistan, if the ICC prosecutor determines the legal criteria for opening an investigation are met, her office may proceed with an investigation without seeking authorization by a chamber of judges.

Given strong evidence that serious crimes have been committed in Palestine since 2014, including new population transfers into occupied territories, Human Rights Watch has called on the ICC prosecutor to open a formal investigation of serious international crimes committed in Palestine by Israelis and Palestinians.

10. What safeguards exist at the ICC to prevent politically motivated cases?

There are numerous safeguards set out in the Rome Statute to prevent frivolous or politically motivated cases. Unless there is a referral from a state or the UN Security Council, the ICC prosecutor is not able to begin an investigation on her own initiative; it requires authorization from a pre-trial chamber of three judges. In all investigations, the prosecutor needs to apply to the court’s judges for arrest warrants and to confirm charges prior to trial.

The focus of ICC investigations and prosecutions in Africa in its early years have led to criticisms of bias by some African leaders, although attacks on the ICC emanating from Africa have ebbed in recent years. While nearly all of the court’s first investigations were in Africa, the majority were initiated following a request of the country where the crimes were committed or UN Security Council referral. Still, international justice has been applied unevenly: powerful countries and their allies have been able to evade the reach of justice when serious crimes are committed on their territories by not joining the ICC and by blocking referrals by the Security Council.

Video

ICC Turns 20: Reflections from Law Students Around the World

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

11. Which countries support the ICC?

The ICC has the backing of established and emerging democracies around the world. Its governing body, the Assembly of States Parties (ASP), currently consists of 123 countries that have ratified the Rome Statute: 33 from the Africa region, 21 from the Asia-Pacific region, 18 from Eastern Europe, 28 from the Latin American and Caribbean region, and 23 from Western Europe and North America. Malaysia announced on March 4, 2019 that it would become the latest ICC member.

The prosecutor and the judges are accountable to the ASP. The ASP has the authority to remove them from office in the event that they abuse their powers. The ASP has also established an Independent Oversight Mechanism. Among other functions, the oversight mechanism can conduct investigations of alleged misconduct or fraud concerning any elected court official or court staff.

Burundi withdrew from the ICC effective October 2017, and the Philippines gave notice of withdrawal in March 2018, which goes into effect one year later. An effort by the government of Kenya – at a time when its president and deputy president were facing charges before the court – to lead a mass withdrawal of African states from the treaty failed to materialize.

12. Has the ICC lived up to expectations?

The ICC has so far opened more than two dozen cases, and pre-trial or trial proceedings are ongoing in four cases. However, trials for war crimes and crimes against humanity have only been completed in a handful of cases, with three people convicted and four others acquitted. Some other cases have been dismissed for lack of evidence. Court officials have made a number of missteps and stronger investigations by the ICC prosecutor, better choices in the selection of cases, more efficient proceedings, and more effective outreach with victims and affected communities are needed.

The court also faces steep challenges in carrying out its mandate. Without a police force, it relies on states for cooperation in arrests, and that cooperation has been inadequate. Arrest warrants remain outstanding against 15 individuals. ICC member states have also held back on necessary budget increases even as the court’s workload has grown.

The court certainly needs to continue to learn lessons, correct mistakes, and improve its work. But an effective ICC backed by the strong support of the international community is needed more than ever to send the message that impunity for mass atrocities will not be tolerated.

Posted: January 1, 1970, 12:00 am

Permanent premises of the International Criminal Court in The Hague, the Netherlands. © 2018 Marina Riera Rodoreda/Human Rights Watch

(Washington, DC) – The United States decision to impose visa bans on International Criminal Court (ICC) staff will imperil accountability for grave international crimes, Human Rights Watch said today. US Secretary of State Michael Pompeo on March 15, 2019 announced that the bans will apply to ICC personnel involved in the court’s potential investigation of US citizens and may possibly be used to deter ICC investigations against citizens of US allies. 

The US action appears to have been spurred by a possible ICC investigation in Afghanistan that could examine conduct by US personnel and by a possible investigation in Palestine that would likely include conduct by Israeli officials. ICC judges will determine whether an Afghanistan investigation will be opened. The ICC prosecutor will decide whether to proceed with a Palestine investigation.

“The US decision to put visa bans on ICC staff is an outrageous effort to bully the court and deter scrutiny of US conduct," said Richard Dicker, international justice director at Human Rights Watch. “ICC member countries should publicly make clear that they will remain undaunted in their support for the ICC and will not tolerate US obstruction.”

The ICC is the permanent international court in The Hague with a mandate to try those responsible for genocide, war crimes, crimes against humanity, and the crime of aggression. The international community created the ICC to fight impunity for these crimes, following the horrors of genocide in the mid-1990s in Rwanda and in the former Yugoslavia. The ICC is a court of last resort and will only open investigations if national authorities are unwilling or unable to conduct genuine national proceedings in these cases.

ICC judges have yet to rule on the ICC prosecutor’s November 2017 request to investigate certain crimes committed in the context of the armed conflict in Afghanistan since May 2003. In addition to grave crimes by the Taliban and Afghan government forces, the court could also investigate alleged crimes by foreign forces – notably those by the US military and Central Intelligence Agency (CIA) – most of which are alleged to have been committed between 2003 and 2004. Pompeo also announced that the same policy may be used to deter ICC investigations of allied personnel, including Israelis. The ICC prosecutor is examining alleged crimes by Israelis and Palestinians in Gaza and the West Bank. Palestine is an ICC member country.

Pompeo made clear that the US would take further action if the ICC moves forward with investigations of US nationals. In a September 2018 speech, the US national security adviser, John Bolton, announced a change in US policy toward the court and outlined several steps the US would take if ICC investigations reached US nationals or the nationals of US allies. In addition to travel bans, Bolton threatened prosecutions and financial sanctions against ICC staff, as well as against countries and companies assisting in ICC investigations of US nationals. He warned that the US would restart long-abandoned efforts to negotiate agreements with other countries against surrendering US nationals to the court and put other governments’ diplomatic, military, and intelligence ties with the US at risk if those governments cooperate with the ICC in investigations of the US or its allies.

“The ICC, despite its shortcomings, remains one of the few available tools to bring justice if national courts fail to do so,” Dicker said. “At a time of rampant atrocities in South Sudan, Myanmar and Syria, the US is sending exactly the wrong message in targeting ICC staff simply for doing their job – bringing justice for victims of international crimes.”

Bolton was the architect of a hostile campaign against the ICC in the early 2000s under the George W. Bush administration. However, these efforts did little more than erode US credibility on international justice and were abandoned. Members of the US Congress who recognize the ICC as crucial for international justice should call for rescinding this policy immediately.

ICC member countries announced in December that they were “undeterred by any threats against the court, its officials, and those cooperating with it,” and would “stand united against impunity.” In addition to speaking out publicly, member countries will need to work together to resist US obstruction, Human Rights Watch said.

The US, which is not a party to the court’s Rome Statute, objects to the ICC’s jurisdiction over nationals of non-member countries, absent a referral to the court by the United Nations Security Council. Afghanistan, however, is an ICC member country, giving the ICC authority to investigate and prosecute crimes committed by their nationals or by anyone on Afghan territory.

The court’s authority is nothing unusual. US and other citizens who commit crimes abroad are already subject to the jurisdiction of foreign courts. Countries that ratify the Rome Statute are simply delegating their authority to prosecute certain grave crimes committed on their territory to an international court.

Since beginning operations in 2003, the ICC has opened investigations in 10 countries, including Darfur in Sudan, Democratic Republic of Congo, Mali, and Georgia. In addition to Palestine, its prosecutor is considering whether investigations are warranted in another nine situations, including in the Philippines, in Ukraine, and the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

“Trump administration threats against the ICC mask the real problem, the failure of US authorities to address past torture and other abuses by the CIA and US armed forces,” Dicker said. “This is precisely the ICC’s role, to deliver justice for victims when all other doors are closed.”

For a Q&A on the US and the ICC, please visit:
https://www.hrw.org/news/2019/03/15/qa-international-criminal-court-and-...

Posted: January 1, 1970, 12:00 am

 

(Brussels) – A fresh mandate for the European Union’s special representative for human rights is an opportunity to heighten efforts by the EU and its member states to significantly strengthen policies and actions on behalf of justice for international crimes and promote respect for the laws of war, a coalition of nongovernmental organizations said today.

On February 28, 2019, Eamon Gilmore, a former Irish foreign minister, was appointed as the new EU special representative for human rights. The post was initially created in 2012 to “strengthen the effectiveness and the visibility of the EU’s human rights policy.” In negotiations to renew the mandate, EU member states showed an interest in strengthening support for international humanitarian law and international justice. In a first step towards that aim, states added new language to the special representative’s mandate to highlight the office’s role in advancing and implementing EU commitments in these areas.

“Last year the EU and its member states marked the 20th anniversary of the Rome Statute of the International Criminal Court by vowing to use both internal and foreign policy tools to support the fight against impunity,” said Virginie Amato, Europe regional coordinator at the Coalition for the International Criminal Court. “While more is needed, member states’ emphasis on justice in renewing the special representative’s mandate sends a signal that they are looking for ways to deliver on that promise.”

The special representative’s new mandate has added importance given the magnitude of challenges at a time of grave violations of international law, impunity for crimes, and efforts by some governments to undermine international institutions and mechanisms. The United States government under the Trump administration severed ties with the International Criminal Court (ICC) in September 2018, threatening retaliatory action should ICC investigations reach United States nationals or the nationals of US allies.

At the same time, the proliferation of international crimes has meant expert efforts to promote respect for the laws of war and the development of tailor-made justice solutions are more needed than ever. International accountability mechanisms for Myanmar and Syria are examples of recent innovations to advance justice for atrocity crimes.

A group of nongovernmental organizations, including the Coalition for the ICC, Human Rights Watch, the International Federation for Human Rights, No Peace Without Justice, Open Society Justice Initiative, Women’s Initiatives for Gender Justice, and the World Federalist Movement – Institute for Global Policy, had previously urged the EU to establish a dedicated special representative for international justice and international humanitarian law. They consider a dedicated special representative necessary to provide greater visibility and consistent and coordinated action in these key areas, in response to alarming human rights violations amounting to international crimes that are taking place around the globe. The European Parliament has called for a dedicated post since 2011, including, most recently, in its annual human rights report.

The EU High Representative and member states eventually agreed instead to limited changes to the mandate of the existing EU special representative for human rights. While the previous mandate provided some scope for addressing international justice and international humanitarian law, the revised mandate now makes a more explicit reference to the EU’s decision on the ICC. Other key tools available to the special representative include the EU Action Plan to follow up on the Decision on the ICC, as well as EU guidelines on the promotion of compliance with international humanitarian law and a toolkit aimed at supporting national prosecutions of international crimes.

“Strong EU leadership is needed more than ever as the terrain for delivering justice and respect for international law is getting more and more difficult,” said Lotte Leicht, European Union director at Human Rights Watch. “Advancing justice for atrocity crimes is not cost-neutral. The EU and its member states need to significantly increase the capacities of the office of the new special representative to allow him to implement his mandate to the fullest.”

The EU special representative for human rights already had a broad mandate but limited means. Making the most of an expanded mandate will require added human and financial resources, as well as political backing from the EU High Representative and EU member states at the highest level of government, the groups said. The EU and its members should ensure that adequate resources are provided to the new special representative and his team. They should also keep under review whether a dedicated position may be necessary in the future.

“We look forward to engaging with and providing all possible support to the special representative in implementing his vital mandate,” said Antoine Madelin, director of international advocacy at the International Federation for Human Rights. “Given the valuable contribution that civil society organizations, victims and survivors can make in setting new priorities and goals for justice and human rights, it is of utmost importance that they are thoroughly consulted by the special representative.”

 

Posted: January 1, 1970, 12:00 am

Ms. Maria Luiza Ribeiro Viotti

Chef de Cabinet

Executive Office of the Secretary-General

Re: Photos with President al-Bashir

 

Dear Ms. Viotti,

As you know, the International Criminal Court (ICC) issued arrest warrants against Sudanese President Omar al-Bashir in 2009 and 2010 for suspected genocide, war crimes and crimes against humanity in Darfur. Since then, the United Nations policy of avoiding non-essential contacts with individuals subject to arrest warrants has sent an important signal in support of justice for international crimes. It will also hopefully help lay the groundwork for al-Bashir’s arrest or surrender to the court.

With this in mind, we were deeply disappointed by the Secretary-General’s appearance in a series of group photos taken at the 32nd Ordinary Session of the Assembly of the African Union in Addis Ababa, which took place from February 10 to 11, 2019, in which the Secretary-General is standing next to al-Bashir.

It is difficult to see how posing next to al-Bashir for a photograph could qualify as an “essential” contact. The UN spokesman, asked about the photographs by a reporter, said the arrangement was “dictated by the hosts.” However true, this does not change the fact that by being photographed next to President al-Bashir, the Secretary-General was contravening the UN non-essential contacts policy. The commentary on the policy states that, “There should be no ceremonial meetings with such persons and....the same holds true of receptions, photo opportunities, attendance at national day celebrations and so on.” The Secretary-General should have simply taken himself out from the staged photograph.

Public appearances have important symbolic value for which al-Bashir is well aware. Regardless of the Secretary-General’s intent, the photograph is effectively a vote of confidence in a war crimes fugitive and undermines the UN’s credibility on crimes in Sudan and perceptions of the ICC. President al-Bashir and other critics of the ICC will doubtlessly take away this message. And al-Bashir can be expected to leverage his attendance at such events to promote his disregard for the ICC warrants.

Situations like this should be avoided in the future. When President al-Bashir is expected at an event the Secretary-General is also attending, the Secretary-General and his advisers should acquaint the hosts in advance with the UN policy. Staged photo opportunities cannot be justified, and precautions should be taken to limit the possibility of unstaged photos. At a minimum, the Secretary-General should use such opportunities to publicly call on al-Bashir to appear at the ICC to face the charges against him. This would help bring attention to the need for his surrender in the interests of justice and of his victims.

We are happy to discuss this letter with the Executive Office of the Secretary-General at your earliest convenience. Please do not hesitate to be in touch to discuss this matter further.

 

Sincerely,

Bruno Stagno Ugarte

Deputy Executive Director, Advocacy

Human Rights Watch

 
Posted: January 1, 1970, 12:00 am

After the Myanmar military launched its campaign of ethnic cleansing in August 2017, Human Rights Watch researchers spoke with Rohingya women and girls from 19 villages in Rakhine State who had been raped by security forces. We witnessed their deep pain, shame, and distress, born not only from the recent violence but also from the chronic fear, persecution, and neglect long faced by the Rohingya.

In every case of sexual violence described to us, the perpetrators were uniformed members of the security forces – mostly soldiers, some police. All but one of the rapes were gang rapes, often involving groups of soldiers who also sometimes stripped, beat, bit, laughed at, and taunted their victims. Women described soldiers in boots kicking them and beating them with rifles. Fifteen-year-old Hala Sadak had considerable scarring on her leg from where soldiers had stripped her naked and then dragged her from her home to a nearby tree where, she estimates, 10 men raped her from behind. 

We documented six cases where military units committed “mass rape” of villagers, gathering women and girls in groups and gang raping them, sometimes then locking them in shelters that they set on fire. Many rape victims were murdered.

And yet, despite the overwhelming evidence of these and other grave crimes, the Myanmar government continues to assert, as it did in its report to this Committee, that there is “no evidence to support these wild claims.” Civilian and military authorities continue to shield soldiers and their commanders from prosecution. 

Myanmar’s recent submission to the Committee of denial after denial is a dark document. It shows outrageous disrespect for survivors of rape, for the truth, and for the work of this Committee. It’s an affront to accountability for vicious crimes, and to ending the military’s use of fear – including by rape – to reach its objectives. Widespread sexual violence has long been a hallmark of the Myanmar military’s culture of abuse and impunity, and it is this profound lack of accountability which allows it to continue.

The Myanmar military’s use sexual violence – not just against the Rohingya but in other ethnic minority areas – casts a pall of fear and toxicity that extends beyond the bodies of the women and girls the soldiers attack, disrupting the progress of all women’s rights in the country.

We are here today discussing some of the worst atrocities in recent years. It’s unclear how the humanitarian crisis created by these acts will be resolved. But accountability needs to be part of any real change, and accountability begins with the truth. We are confident you will reject the hollow and dangerous denials made by Myanmar’s government and focus on facilitating a path to justice.

The Committee should provide any support it can to survivors of rape and other crimes by continuing to monitor the situation in the Rohingya refugee camps in Bangladesh and advocating for funds to ensure long-term psychosocial assistance and other support. It should also call for unimpeded access for humanitarian organizations and rights monitors in Rakhine State, andinsist that Myanmar provide full access to quality sexual and reproductive health care for Rohingya. This includes making sure such services are available and accessible to Rohingya populations, and lifting restrictions on travel and movement.

The Committee should give its political backing to the new investigative and evidence-gathering body created by the Human Rights Council. It should also ask UN Security Council members to refer the situation in Myanmar to the International Criminal Court.

Posted: January 1, 1970, 12:00 am

The image of a comatose Otto Warmbier being carried off a plane in the United States in June 2017 offered a glimpse of life – and death – in North Korea. Warmbier was a 22-year-old American university student who died from unexplained injuries sustained in a North Korean prison while serving a sentence of 15 years of hard labor after he took a political banner from his Pyongyang hotel. During his 17 months in detention, Warmbier may have endured the kind of physical abuse and torture North Korean detainees commonly receive.

But the US has stepped back on keeping the issue of North Korea’s abuses in front of the UN Security Council. The help of other countries, especially from Europe, is desperately needed.

Five years ago, a United Nations commission of inquiry delivered a terrifying report on imprisonment, enslavement, murder, torture, rape and forced abortion in North Korea. The “gravity, scale and nature of these violations” amounted to crimes against humanity by a state “that does not have any parallel in the contemporary world.” The impossibility of holding responsible North Korean leaders to account led the commission to recommend that the UN Security Council should refer the situation to the International Criminal Court (ICC).

Since the release of that report, the Security Council has met every December to discuss its gruesome findings. China, North Korea’s ally, protector and a permanent council member, along with Russia and other rights-abusing states, would argue that human rights was not a threat to international peace and security. But at least 9 of the 15 council members disagreed, and for four years in a row the council spotlighted North Korea’s human rights record.

The council has yet to act on the commission’s recommendations, including referral to the ICC. However, the annual discussion has been a powerful reminder that North Korea’s systemic abuses have brought unspeakable suffering to the North Korean people and have broadened the council’s previous exclusive focus on North Korea’s nuclear program.

But there was no meeting this past December. The US delegation, perhaps unsure that it would get the necessary nine votes, dropped its plan to call the meeting, in essence giving North Korea a free pass. US officials indicated they planned to revisit the idea in January but that never happened. Perhaps it was the US government shutdown or the uncertainty surrounding Heather Nauert, Trump’s appointee to replace Nikki Haley as US ambassador to the United Nations. More likely the Trump administration was hoping for another summit meeting with the North Korean leader, Kim Jong Un.

Responsibility for making the North Korea meeting happen does not rest solely with the United States. Other current council members, including Belgium, Britain, France, Germany, or Peru, could make a request.

An envoy for the Dominican Republic, which held the council’s rotating presidency in January, told a public meeting with nongovernmental organizations that discussing Pyongyang’s human rights record would be counterproductive at a time when there was dialogue between the North and South. But prolonged negotiations to reach an agreement on nuclear weapons are no reason to cease bringing pressure on North Korea to end its massive abuses against the Korean people. Indeed, Pyongyang’s unwillingness to seriously address human rights provides a window for examining its approach to nuclear issues.

Current Security Council members such as the Dominican Republic, Indonesia, Ivory Coast and South Africa should recognize that they can support nuclear nonproliferation on the Korean peninsula without aligning themselves to a government that continues to commit crimes against humanity. Their support for a council session on North Korea is crucial.

The Security Council should revisit North Korea’s human rights crisis immediately as a threat to international peace and security, as it has done since 2014. Every day that the council ignores the issue, a message is communicated to Pyongyang that the world has forgotten its grave crimes and moved on.

Otto Warmbier and the millions of other victims of North Korea’s brutal leadership deserve justice and an end to these unparalleled atrocities.

Posted: January 1, 1970, 12:00 am

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

© 2018 Bénédict De Moerloose/TRIAL International

(Geneva) – Five United Nations human rights monitors have urged the UN and the Economic Community of West African States (ECOWAS) to release their report on the 2005 massacre in Gambia of more than 50 Ghanaian and other West African migrants, Human Rights Watch and TRIAL International said today. The killings were allegedly carried out by a paramilitary unit that took orders from then-Gambian President Yahya Jammeh.

“Why is this report still being hidden from us? Who are the United Nations and ECOWAS protecting?” said Martin Kyere of Ghana, the sole known survivor of the massacre. “I want to know who is responsible for all this suffering.” Kyere had dodged gunmen’s bullets after jumping from a truck that was carrying the detained migrants before state security forces killed them.

The West African migrants, who were bound for Europe, were apprehended and extrajudicially executed after the boat they had boarded in Senegal landed in Gambia. When news of the killings came out, tensions escalated between Gambia and Ghana, the home country of 44 of the migrants. After Jammeh’s government blocked Ghana’s attempt to investigate, the UN and the ECOWAS formed a joint investigative team, which produced a report in April 2009 but never made it public.

The Bulletin of the UN Department of Public Affairs reported in 2009 that the unreleased report concluded that the Gambian government was not “directly or indirectly complicit” in the killings and forced disappearances but that “rogue elements” in the Gambian security services, “acting on their own,” were responsible.

However, Human Rights Watch and TRIAL International published a report in May 2018, based on interviews with former Jammeh-era security officials directly involved in the incident, that found that the migrants were detained by Jammeh’s closest associates in the army, the navy, and the police, and then summarily executed by the so-called “Junglers,” a paramilitary unit operating under Jammeh’s orders. The Gambian government also destroyed key evidence before the UN/ECOWAS team arrived.

In letters to Rosemary DiCarlo, UN under-secretary-general for political affairs, and Jean-Claude Kassi Brou, president of the ECOWAS Commission, the five UN human rights monitors – the UN Working Group on Arbitrary Detention; the Working Group on Enforced or Involuntary Disappearances; the special rapporteur on extrajudicial, summary or arbitrary executions; the special rapporteur on the human rights of migrants; and the special rapporteur on violence against women – urged them to release the report publicly and deliver copies to the victims and their families. The letters were dated October 30, 2018, but only now made public after no response had been received.

The UN monitors also wrote to the governments of Gambia and Ghana concerning any progress they had made in the investigation of the killings, to “encourage efforts aimed at establishing the truth about what happened” and to ensure “the accountability of any person(s) responsible for the alleged violations.”

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

In October 2017, Gambian and international rights groups opened the “Campaign to Bring Yahya Jammeh and his Accomplices to Justice” (#Jammeh2Justice), which calls for prosecuting Jammeh and others who bear the greatest responsibility for his government’s crimes.

Following the publication of the Human Rights Watch/TRIAL report on the massacre, several families of the Ghanaian victims called for justice for their relatives. The Ghanaian government announced on May 27, 2018 that it had “tasked the Ministry of Foreign Affairs and the Attorney-General’s Department to study [the matter] and explore the full extent of its legal and diplomatic implications and also advise the government on the way forward.” The government of Gambia has pledged to cooperate with any investigation by Ghana. No concrete actions have been taken since, however.

In addition to Ghanaians, the massacre victims are believed to include citizens from Nigeria, Senegal, Togo, and Côte d’Ivoire. Eight of the migrants’ bodies were found the day after their arrest on the outskirts of Banjul, the Gambian capital, while the others were killed the following week in Senegal, just across the Gambia border from Jammeh’s hometown of Kanilai.

“Release of the UN/ECOWAS report would be a meaningful step toward accountability for this horrible crime,” said Fatoumatta Sandeng, #Jammeh2Justice spokesperson and daughter of the Gambian opposition leader Solo Sandeng, whose murder in April 2016 galvanized opposition to the Jammeh government. “The report could provide key leads and add impetus finally to get to the bottom of what happened.”

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

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

Libya: Displaced Population Can’t Go Home

Most of the 48,000 former residents of the Libyan town of Tawergha, forcibly displaced for seven years, have not been able to return home. Despite reconciliation agreements that should have paved the way for Tawerghans’ return, the massive and deliberate destruction of the town and its infrastructure, and a pervasive feeling of insecurity, have kept all but a few families from returning. 

(Beirut) – Most of the 48,000 former residents of the Libyan town of Tawergha, forcibly displaced for seven years, have not been able to return home, Human Rights Watch said today after visiting the town.

Despite reconciliation agreements that should have paved the way for Tawerghans’ return, the massive and deliberate destruction of the town and its infrastructure, and a pervasive feeling of insecurity, have kept all but a few families from returning. New satellite imagery analysis shows that between 2013 and 2017, when militias from the nearby city of Misrata effectively controlled Tawergha, over 20 kilometers of the city’s underground electric cable network was most likely removed and apparently stolen.

“The militias, predominantly from Misrata, that uprooted and expelled the Tawerghans didn’t stop there but presided over the city’s systematic destruction, apparently to ensure that the displaced would find it impossible to return,” said Hanan Salah, senior Libya researcher at Human Rights Watch. “The Government of National Accord should urgently devise a strategy for Tawerghans’ safe return, ensuring reconstruction and security, and accountability for militia members and commanders responsible for deliberate displacement and destruction.”

The International Criminal Court (ICC) prosecutor should consider possible war crimes and crimes against humanity against the Tawergha community as part of her office’s ongoing investigative efforts to address ongoing grave abuses in Libya, Human Rights Watch said.

An estimated 48,000 Tawerghans have been dispersed around the country since the uprising that ousted Muammar Gaddafi in 2011. In August of that year, the entire civilian population fled approaching anti-Gaddafi armed groups, predominantly from Misrata, fearing attacks and reprisals.

In what amounts to collective punishment and forced displacement, a possible crime against humanity, armed Misrata groups and civilian authorities subsequently blocked and threatened Tawerghans who tried to return home, accusing them of siding with Gaddafi and of committing atrocities against those seeking his overthrow. People from Tawergha were unable to visit, let alone return, to their homes until the signing of the peace charter in 2018.

Representatives of the two cities signed a reconciliation charter in June that in principle provided for the Tawerghans’ return. But as of December, only about 100 families have attempted to resettle in their hometown, according to the International Organization for Migration.

Returnees face a devastated infrastructure, with no electricity, running water, or telecommunications, and scant education and health services. Some said they still feared attacks and retaliation by Misrata militias.

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Human Rights Watch visited the Libyan town of Tawergha, where only a handful of the 48,000 former residents forcibly displaced for seven years have returned to their homes.

 

Human Rights Watch visited Tawergha in September and met with the Local Council, the main body representing and coordinating relief for the city, nongovernmental organizations, the commander in charge of security from the predominantly Misrata-staffed Central Military Region – a unit nominally aligned with the Government of National Accord’s (GNA) Defense Ministry, and eight Tawerghan families who had returned. Human Rights Watch also visited Misrata and met with municipal officials who negotiated the return process and are overseeing the implementation of peace agreements on Misrata’s behalf.

Human Rights Watch also interviewed by telephone in December five families from Tawergha living in Tripoli, Benghazi, and Ajdabiya, who have decided against returning, citing the destruction and security concerns. Names of those interviewed, other than officials, have been changed to protect them from possible reprisals.

Tawergha Local Council members told Human Rights Watch that all power stations, water purification plants, water distribution tanks, and underground electric cables had been looted or damaged to the point of being inoperable. A tour of the city confirmed that this appeared to be wholly or largely true. Researchers also found that all public administrative buildings, including the courthouse, and the main bank branch, the general hospital and many if not all 22 schools suffered damage, much of it apparently from arson, as well as looting.

Local Council members said that all of the town’s private houses and shops had also been looted and damaged. When researchers drove through the town, and in nearby agricultural areas close to the river, every structure they saw or stopped at appeared to have some structural damage, including some caused by fire.

Three council members said that when displaced Tawerghans first attempted to return to the town in 2013, armed groups from Misrata looted and destroyed the town further to prevent their return. Historic satellite imagery assessed by Human Rights Watch also shows continuing deliberate destruction of electricity infrastructure after April 2013.

Armed groups from Misrata and civilian authorities in that city have exercised effective control, without interruption, over Tawergha since August 2011. The armed groups were largely affiliated with the Misrata Military Council, which coordinated military activities of armed groups from Misrata in the aftermath of the 2011 revolution.

Armed groups from Misrata, given their effective control of the city since 2011 either destroyed and looted the town themselves, or allowed others to do so, Human Rights Watch said.

Under international human rights and humanitarian law, the GNA, as the recognized and competent government authority, is required to facilitate the voluntary, safe and dignified return of displaced people to their homes and help them recover their homes, property and possessions, Human Rights Watch said. The Libyan authorities are required to investigate and prosecute all those responsible for international crimes, including war crimes and crimes against humanity, including commanders who knew or should have known about the crimes committed by their subordinates and failed to take all reasonable steps to prevent the crimes.

During the visit, Human Rights Watch observed that, despite the GNA’s commitment, reconstruction and recovery have yet to start in earnest. As of December 2018, the state electricity company had installed only one electricity cable, for street lights, on part of the main road. One NGO was retrieving unexploded remnants, and international organizations had provided limited food and non-food parcels, residents said. The head of the Local Council of Tawergha, Abderrahman al-Shakshak told researchers during a meeting in Tawergha on September 24 that despite pledges by authorities, the initial phase of clearing debris and assessing damage was moving slowly.

All Tawerghan residents interviewed by telephone said the scale of destruction had prevented their return. Some expressed anxiety about being in a city that remained under the watch and effective control of Misrata militias. Four of the five displaced Tawerghans interviewed also said they objected to provisions in the Reconciliation Charter that curbed their rights, including to express themselves.

Acts aimed at preventing the return of the civilian population to their homes in safety and dignity, including physically blocking people from going back and deliberate destruction and looting, are unlawful, Human Rights Watch said.

The ICC prosecutor has a mandate to investigate crimes against humanity, war crimes, and genocide committed in Libya since February 15, 2011. Rampant militia violations since then have largely gone unpunished at the domestic or international level. That includes violations against Tawerghans, such as mass long-term arbitrary detention, torture and other ill-treatment, forced displacement, and unlawful killings. The ICC prosecutor should probe ongoing grave crimes by all sides, including possible serious crimes against Tawerghans, including deliberate acts preventing their return.

“While nothing can reverse seven years of forced displacement and dispersal, a measure of accountability for causing and preventing their return will not only bring justice to victims of serious violations and restore dignity, but it could serve as a deterrent for future crimes,” Salah said.

Timeline
Since August 2011, anti-Gaddafi fighters and later other militias, mostly from Misrata, arbitrarily detained, tortured, disappeared, and harassed people from Tawergha with impunity. According to the Tawergha Local Council, 170 people from Tawergha remain missing, the majority of them, they said, having been disappeared by anti-Gaddafi fighters during, or in the immediate aftermath of, the 2011 revolution.

In June 2013 Tawergha residents who were dispersed around the country attempted to return, but militia barred them. Authorities in the eastern city of Ajdabiya intercepted and turned back a convoy of Tawerghans trying to make the journey from Benghazi. The government at the time, religious leaders, local leaders, and the United Nations Support Mission in Libya (UNSMIL) all cautioned against a unilateral initiative by Tawerghans to return, citing security concerns.

The UN helped open a reconciliation process in 2016 between the people of Tawergha and Misrata aimed at ending the forced displacement and compensating victims. Representatives of both sides signed an agreement in August 2016. It provided for a fund by the UN-backed GNA to compensate victims and for lifting obstacles imposed by Misrata groups to the Tawerghans’ return.

After months of wrangling, the two sides agreed in April 2017 to modify the agreement based on requests from Misrata. The final compensation plan appeared to favor victims from Misrata, who will receive a higher compensation, over victims from Tawergha and excluded compensation for anyone presumed to have been pro-Gaddafi fighters or sympathizers. The sole provision on justice says: “The Libyan State shall take all necessary legal action to prosecute those accused” of crimes.

The Presidential Council of the GNA ratified the agreement in June 2017, and pledged the government’s “continued commitment to coordinate security arrangements, and to prepare necessary services for the anticipated return of the people of Tawergha and work toward providing necessary requirements for a dignified life according to the terms of the agreement.”

Thousands of people from Tawergha decided to return on February 1, 2018, based on the agreement, but forces from Misrata blocked thousands of people from returning and threatened to use force against anyone else who tried, apparently because some members of these Misrata forces disagreed with the agreement’s terms. Hundreds of families were stranded in new makeshift tent-camps east of the city, most in Qararet al-Qatef, 35 kilometers to the east. Many ended up returning to where they had been temporarily living.

On June 3, representatives from Misrata and Tawergha signed a reconciliation charter that was met with substantial opposition from Tawerghan community leaders, elders and activists, to end the dispute and allow Tawerghans to return. Al-Shakshak said that the two sides signed the charter to overcome objections from some officials and armed groups in Misrata, who had been blocking the return of Tawerghans.

The charter, which Human Rights Watch reviewed, imposes conditions on the return of Tawerghans, some of which run counter to international human rights norms and international humanitarian law.

The charter threatens free-speech rights, saying that Tawerghans are to “cease media campaigns, statements and demonstrations that may fan the flames of strife […].” The charter stipulates that “return shall be ensured for those who were regular residents of Tawergha prior to the 17 February Revolution, who recognize and pledge to abide by the provisions this Charter and the Agreement signed by both parties.” Forcing Tawerghans to abide by a charter as a condition for their return compromises their right as displaced people to return to their homes and violates their right to peacefully choose to express their views (or not) on the agreements.

Moreover, the preamble of the charter assigns responsibility for crimes in 2011, including “crimes against humanity,” only to Tawerghans, even though there is evidence linking Misrata fighters to atrocities. It also limits accountability for current and future crimes only to Libyan courts, violating the right to effective remedy and ignoring the ongoing jurisdiction of the International Criminal Court. The charter does not apply equally the right to truth and knowledge about what happened to missing people and appears to favor victims from Misrata over victims from Tawergha.

Controlled Demolition, Looting of Infrastructure
The extensive damage to Tawergha’s infrastructure encompasses the electricity grid, above-ground and underground power cables, power conveyers, water tanks, telecommunication installations, and water purification plants.

Satellite imagery and evidence gathered by Human Rights Watch researchers on the ground in September indicated that Tawergha sustained extensive looting of underground power cables over 20 kilometers in length, starting in April 2013 and continuing intermittently until August 2017, at a time when the Misrata authorities and armed groups had full control over access to Tawergha, enforced through multiple checkpoints leading into the town. The looting likely involved the use of heavy machinery to extract the cables and would have required loading them onto trucks and passing through checkpoints if they were transported elsewhere.

This damage is distinct from damage captured by satellite images taken in 2011, which included damage inflicted by combat and probable NATO air strikes during fighting between pro- and anti-Gaddafi forces that ended in October 2011. According to a Human Rights Watch damage assessment from 2013, the first phase of controlled demolition, looting and arson by anti-Gaddafi fighters started after they captured the town, around August 15, 2011. The next phase of controlled building demolition, involving the use of explosives and arson, began on or after November 24, 2011, three months after the Tawerghans fled.

As of December 2018, the state-owned Electricity Company had laid out one over-ground power cable about three kilometers long to illuminate street lights along the main road. In addition, the UN had provided eight solar-powered street lights. Few residents who had returned had access to generators.

Al-Shakshak told Human Rights Watch that all the deep-water wells and drinking water networks needed rehabilitation due to years of neglect and damage during the demolition and arson attacks. Based on visits to three sites, interviews with Local Council members, and analysis of satellite imagery and video footage, Human Rights Watch determined that all four water distribution tanks in the town had been destroyed. The Local Council says they were deliberately demolished, and all eight water wells and the main water purification plant that supplied Misrata with drinking water had also been damaged and looted.

There is no cellphone, landline, or radio coverage in the entire town. Al-Shakshak said that one mobile network operator had installed a temporary cellphone coverage in a nearby gas station, but the signal did not reach the town.

Local Council members said that all of the approximately 7,000 housing units in Tawergha had been damaged to varying degrees since the 2011 conflict. Al-Shakshak said that the council had established a committee to survey the damage to private properties. Tawergha residents needed to submit their personal files to this committee, which forwarded the files to private architectural offices to survey the damage and estimate the cost of reconstruction. They said that 300 files had been submitted for assessment.

Access to Health Care, Education
Human Rights Watch visited the Tawergha General Hospital, the city’s main healthcare facility, and found extensive damage throughout. Nearly all the equipment appeared to have been looted or damaged, in some cases by fire, and patient records were missing.

The only healthcare post operating in Tawergha is an improvised clinic consisting of four shipping containers that were transferred to the town after the temporary camp for Tawerghans in Qararet al-Qatef was dismantled in June. The only attendant of the clinic, a staff nurse from the Tawergha General Hospital, said the improvised clinic lacked plumbing, running water, and electricity. He said it could only provide basic medication such as pain killers and could not treat chronic diseases, perform surgery, or deliver babies. He said that one doctor visited occasionally but that all serious cases had to be transferred to other cities.

All of Tawergha’s 22 schools and its one college have been extensively damaged, according to the head of the Local Council. Researchers visited four schools that had been damaged by fire and found them without furniture, equipment, and student files. The GNA Education Ministry provided 10 containers for a temporary school. Al-Shakshak said the objective was to enroll up to 500 children. However, about 50 children are attending the school on an irregular basis and without receiving the official curriculum for all age groups, one Tawergha resident said.

Legal Framework and Accountability
The GNA-endorsed reconciliation agreement from August 2017 lays out agreed duties on the parties and the compensation packages to be paid by the GNA to victims or their families from both sides for people who were killed, detained or reported missing, for people who suffered disabilities, and for limited personal property losses. Members of the Local Council said that the follow up June 2018 reconciliation charter should be considered a “social contract” with no binding legal consequences for the parties. However, some of the provisions appear to be one of the reasons why people are reluctant to return to Tawergha.

The Guiding Principles on Internal Displacement, based on human rights and humanitarian law provide that displacement should be limited in time and should not last “longer than required by the circumstances.” International law further stipulates that civilians forcibly displaced from their homes during a conflict should be allowed to return home as soon as possible without conditions.

Principle 21 of the Guiding Principles states that the property and possessions of internally displaced people should be protected from “pillage, direct or indiscriminate attacks or other acts of violence,” and should not be “destroyed or appropriated as a form of collective punishment.” The article also states that “property and possessions left behind by internally displaced persons should be protected against destruction and arbitrary and illegal appropriation, occupation or use.”

Certain abuses committed as part of a widespread or systematic attack on a civilian population, including torture, arbitrary detention, and forced displacement, may constitute crimes against humanity. The UN International Commission of Inquiry on Libya concluded in its March 2012 report that Misrata militias had committed crimes against humanity against Tawerghans and that the deliberate destruction of Tawergha “has been done to render it uninhabitable.”

While Libya’s judicial authorities have prosecuted crimes attributed to Tawerghans, including for killings and unlawful possession of weapons during the 2011 revolution, no militia members have been prosecuted for forcibly displacing Tawerghans or other serious abuses against them.

Accounts by Tawerghans
Researchers interviewed eight residents in person in September in Tawergha and five former residents who had not returned by phone in December.

When Musa R., a father of 12, displaced in Tripoli since 2011, met with researchers in Tawergha in September, he said he was only visiting for the day and explained why could not stay:

My home here in Tawergha has been destroyed. The whole ceiling has been brought down. I cannot come back. Winter is approaching, and people here will have to leave again. There is no medical care for my elderly, sick mother and some of my daughters need to continue their university education. 

Khalil L. and Ihsan A., a married couple with six children whom researchers met in Tawergha, decided to return to their hometown after seven years of displacement in Benghazi with some of their children, despite the hardships. Ihsan A. said:

We can only stay here if they soon open a school for our children and if teachers show up. Many displaced families are afraid to return to Tawergha because they fear attacks from Misrata [militias]. There is no electricity here and no water, and the destruction is total and systematic. I am worried for the children when it starts to get cold. Many people cannot come back. Those who made a living elsewhere won’t come back.

Khalil L. said:

All electricity cables, both over ground and underground and cables in private homes were stolen after the arson of homes because of the copper, which has become very expensive. I believe it must have been a company that did that because all the large electricity transformers have been looted as well. The looting mostly occurred in 2013, after the first attempt by the Tawergha community to return to our hometown.

Citing harassment by militias from Misrata, Mustafa M., an outspoken Tawerghan critic of the reconciliation charter between Tawergha and Misrata, who had spent the last seven years displaced in Tripoli, told Human Rights Watch by phone that although he briefly visited Tawergha twice he was not able to return permanently due to safety concerns:

I went to Tawergha twice in September to visit my home, which has been destroyed. Both times, at the checkpoint at the entrance to Tawergha, I am clearly [seen as] an undesirable as I do not agree with the peace accord. My car was singled out and I was checked thoroughly though no one else was. I felt insecure. The same situation happened with my brother. I have decided not to go back for the time being as the security situation is still tenuous.

Faraj H., 50, another displaced Tawergha resident who lives in a camp in Benghazi, and who visited Tawergha twice, described his experience at a checkpoint:

The Misrata side has weapons and I fear for my security. During my visit, I was stopped at a checkpoint in el-Ain area by Katibat al-Zerzah, which is part of the Misrata army. They took my car papers and I had to follow them to al-Krareem where I waited for two hours before they gave back my documents.

Ahmed B., 51, a father of seven who has been living in a camp in Benghazi since his family’s displacement in 2011, said he had visited his destroyed home in Tawergha only twice since June, and could not return to live there:

We are not displaced. We are in fact homeless, we can no longer be considered just displaced. We’ve been like this for eight years now. Most of the people in Tawergha feel that they’ve been implicated in a shameful peace charter. There are no schools or universities, yet all my children study. Tawergha is in a state of utter devastation. The entire city has been destroyed. There is no infrastructure, no water, no electricity, the conditions are very harsh. It’s a burned land now.

Ali S., 47, a father of five, and displaced with his family in Ajdabiya since 2011, said he rejected the reconciliation charter and had concerns about returning to Tawergha:

I do want to return but I refuse to return like this. I’m absolutely dissatisfied with the charter. It’s a weak and shameful agreement. Misrata cannot decide for the people of Tawergha and cannot be in charge of protecting us. My house is unlivable, and it’s awfully burned. It was also looted, and they even pulled out the electricity wires […] They also stole the doors and windows. Even on a security level, things are not very comforting. We were enemies and they hurt us very much.

Mustafa Karwad, the mayor of Misrata, told Human Rights Watch during a meeting in Misrata on September 23 that people from Tawergha had the right to unconditional return to their hometown since the signing of the reconciliation charter on June 3 and said there had been no security incidents involving Tawergha residents during that period.

Posted: January 1, 1970, 12:00 am