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

Women mourn at the graves of their relatives who died in 2009 during the last days of the war in Mullivaikkal, Sri Lanka, May 18, 2015.

© 2015 AP Photo

(New York) – Ten years since the end of Sri Lanka’s brutal civil war, the government has failed to provide justice for the conflict’s many victims, Human Rights Watch said today. The conflict ended on May 18, 2009, with the total defeat of the Liberation Tigers of Tamil Eelam.

The Sri Lankan government pledged to provide justice for wartime abuses and to take other measures to promote respect for human rights in a United Nations Human Rights Council resolution adopted in October 2015. While there has been some progress to address these commitments, there has been none to provide justice and accountability.

“The end of Sri Lanka’s long civil war in May 2009 provided an opportunity not only to rebuild shattered lives and society, but also to restore respect for rights and the rule of law,” said Meenakshi Ganguly, South Asia director. “Yet successive Sri Lankan administrations have frittered away this opportunity, failing to investigate atrocities by both sides, hold those responsible for the worst crimes accountable, or provide truth and reparations to the victims.”

Under Human Rights Council Resolution 30/1, Sri Lanka committed to 25 key undertakings across a range of human rights issues. A core pledge was to set up four transitional justice mechanisms to promote “reconciliation, accountability and human rights” in the country. These included an accountability mechanism involving international judges, prosecutors, investigators, and defense lawyers; a truth and reconciliation mechanism; an office on missing persons; and an office for reparations.

The Office on Missing Persons and the Office for Reparations overcame delays and were established, but neither is fully functioning. There has been no progress on establishing a war crimes tribunal with international involvement. Instead, Sri Lankan political leaders have repeatedly opposed using foreign judges, who would be less vulnerable to threats, and said that “war heroes” will be protected from prosecution.

In March 2019, the UN high commissioner for human rights, Michelle Bachelet, told the Human Rights Council that in Sri Lanka, “there has been minimal progress on accountability. Continuing impunity risks fuelling communal or interethnic violence, and instability. Resolving these cases, and bringing the perpetrators of past crimes to justice, is necessary to restore the confidence of victims from all communities.”

Numerous UN experts and treaty bodies since 2015 have highlighted the marginalization and misrepresentation faced by minority communities, as well as a trust-deficit between these communities and the government that has been due in significant part to a culture of impunity.

The Sri Lankan government has also not fulfilled its 2015 commitment to repeal and replace the Prevention of Terrorism Act (PTA), which allows prolonged detention without trial. Those detained under the law have frequently been subjected to torture and sexual violence. A proposed replacement, the draft Counter Terrorism Act, is before parliament. While the bill is an improvement on the Prevention of Terrorism Act, several problematic provisions remain, and there are reports that amendments will be introduced to further undermine human rights protections. Meanwhile, the authorities continue to arrest and detain people under the existing law.

The torture and other ill-treatment of detainees, particularly in political cases, has remained a problem since the end of the conflict. The UN special rapporteur on torture found after a 2016 visit to Sri Lanka that “torture and ill-treatment, including of a sexual nature, still occur, in particular in the early stages of arrest and interrogation, often for the purpose of eliciting confessions.”

The government also promised in 2015 to return land to families that the military appropriated during the war and still occupied. The security forces have not only used this land for military purposes, but also for agriculture, tourism, and other commercial ventures. While the government has released land in a number of sites in the north and east, the process in returning other sites has been slow.

Instead of taking action against those implicated in past abuses, the government has often protected and promoted them. In January 2019, Maj. Gen. Shavendra Silva, whose 58 Division was linked to numerous laws-of-war violations during the final months of the war, became army chief of staff. On May 11, the government reinstated Prabath Bulathwatte, a military intelligence official whose unit was accused of attacks on at least three journalists, including the 2009 murder of Sunday Leader editor Lasantha Wickrematunge.

The appalling Easter Sunday bombings and the ensuing mob violence targeting Muslims underline existing tensions in Sri Lanka 10 years after the war’s end and the urgent need to uphold human rights protections. The government enacted emergency regulations after the attacks that provide sweeping powers for detention without trial and curtail freedom of expression and other fundamental rights. The police have been slow to respond to mob attacks on Muslim shops and businesses, in which at least one man has died.

The government needs to act promptly and adequately to protect marginalized groups from harassment and violence while upholding basic due process standards and respecting international law.

The UN and concerned governments should maintain engagement with and pressure on the Sri Lankan government to protect human rights and promote reform, reconciliation, and accountability.

“On the tenth anniversary of the end of the war and in the aftermath of the Easter bombings, the Sri Lankan government should recommit itself to defending the human rights of everyone in Sri Lanka,” Ganguly said. “For that to happen, the government needs to live up to its commitments to provide justice, compensate those harmed, and reform laws and practices to uphold human rights standards.”

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

Liberia: Video Appeal for War Crimes Court

Liberian citizens called on President George Weah to support a war crimes court to bring justice for atrocities committed during Liberia’s civil wars.

 

(Monrovia) – Liberian citizens called on President George Weah in a video released today by an array of local and international groups to support a war crimes court to bring justice for atrocities committed during Liberia’s civil wars. On May 15, 2019, Liberia’s Independent National Human Rights Commission will hold a conference to assess progress on the recommendations made by Liberia’s Truth and Reconciliation Commission.

The Truth and Reconciliation Commission, which operated between 2006 and 2009, recommended creating a war crimes court – the Extraordinary Criminal Court for Liberia – to try those responsible for grave crimes committed during Liberia’s armed conflicts from 1986-96 and 1999-2003. That recommendation has never been carried out, and no one implicated in abuses has been prosecuted in Liberian courts.

“This video is an emotional appeal from Liberians for President Weah to back a war crimes court,” said Adama Dempster, on behalf of the Secretariat for the Establishment of a War Crimes Court in Liberia. “We hope that President Weah watches the video and acts in the interests of justice for the citizens of Liberia who are crying out for justice to be served.”

During the civil wars, Liberians suffered widespread violations of international human rights and humanitarian law such as mass killings, rape, and other forms of sexual violence, summary executions, mutilation and torture, and use of child combatants. Liberia is obligated under international law to ensure that serious abuses are investigated and that those responsible are appropriately brought to justice.

The video includes 10 people of varied backgrounds who took part in a national conference on accountability in Monrovia in November. They explain why a special court is needed and ask for Weah’s support:

“We beg you that the war crimes court come to Liberia.”
“Without justice and accountability in this country we could see Liberia going back to its dark days.”
“You are now sitting in the right position to address the issue of accountability in our country.”
“President Weah, we are calling on you to take justice as a priority.”

The groups also prepared a question-and-answer document on accountability for past crimes in Liberia.

Momentum for a war crimes court continues to grow. Liberians held marches, most recently in November 2018, to campaign for a war crimes court, and petitioned the legislature to carry out the Truth and Reconciliation Commission’s recommendations.

Liberian, African, and international nongovernmental organizations have come together to campaign for justice in Liberia and presented a submission to the UN Human Rights Committee in July on the need for trials of past crimes in Liberia. The Liberian Bar Association added its support for a war crimes court in April.

The UN Human Rights Committee in July 2018 called for the Liberian government to report back within two years on its progress to ensure that those accused of human rights violations and war crimes are prosecuted.

The video was released by Liberian and international nongovernmental organizations, including Advocates for Human Rights, Center for Justice and Accountability, Centre for Civil and Political Rights, Coalition for Justice in Liberia, CSO Human Rights Advocacy Platform of Liberia, Flomo Theatre, Global Justice and Research Project, Human Rights Watch, Liberia Massacre Survivor Association, Rights and Rice Foundation, Search for Common Ground –Liberia, Secretariat for the Establishment of a War Crimes Court in Liberia, and the Transitional Justice Working Group.

“President Weah has an opportunity to stand with victims and their families by establishing a war crimes court in Liberia,” said Elise Keppler, associate international justice director at Human Rights Watch. “He should support establishing a court and seek to work with the United Nations and other international partners to set up a court that can hold fair, credible trials.”

 

Posted: January 1, 1970, 12:00 am

(Monrovia, May 14, 2019) – Liberian citizens called on President George Weah in a video released today by an array of local and international groups to support a war crimes court to bring justice for atrocities committed during Liberia’s civil wars. On May 15, 2019, Liberia’s Independent National Human Rights Commission will hold a conference to assess progress on the recommendations made by Liberia’s Truth and Reconciliation Commission.

The Truth and Reconciliation Commission, which operated between 2006 and 2009, recommended creating a war crimes court – the Extraordinary Criminal Court for Liberia – to try those responsible for grave crimes committed during Liberia’s armed conflicts from 1986-96 and 1999-2003. That recommendation has never been carried out, and no one implicated in abuses has been prosecuted in Liberian courts.

Posted: January 1, 1970, 12:00 am

Omar al-Bashir greets his supporters at a rally in Khartoum, Sudan, on January 9, 2019. He was ousted on April 11.

© 2019 Mahmoud Hjaj/AP Photo

(Geneva) – The International Criminal Court (ICC) ruled on May 6, 2019 that Jordan failed to meet its international legal obligations to arrest then-President Omar al-Bashir of Sudan during a 2017 visit, Human Rights Watch said today. The ICC appeals chamber said that a sitting head of state does not have immunity from arrest for alleged grave crimes even when the leader is from a country that has not joined the ICC.

Al-Bashir, who was ousted as president on April 11, 2019, after four months of mass protests across Sudan, is wanted by the ICC on charges of genocide, crimes against humanity, and war crimes for his alleged role in Sudan’s abusive counterinsurgency campaign in Darfur. The conflict in Darfur has resulted in the deaths of over 300,000 people and the displacement of several million others. The ruling involved his visit to Jordan, an ICC member, in March 2017 during an Arab League summit.

“In a major ruling, the ICC found that heads of state properly sought on charges by the court are not immune from arrest,” said Elise Keppler, associate international justice director at Human Rights Watch. “The decision helps to assure that victims of mass atrocities have access to justice even when the highest-level officials are implicated in the crimes.”

Sudan is not a member of the ICC, but in 2005 the United Nations Security Council referred the Darfur situation to the ICC. The ICC prosecutor opened an investigation, and arrest warrants were issued in 2009 and 2010 against al-Bashir. At the time of the visit to Jordan, Jordan claimed it was not obligated to arrest al-Bashir given his status as a head of state of a non-ICC member.

The five-judge appeals chamber unanimously upheld the pre-trial chamber’s ruling that Jordan was required to arrest al-Bashir when he was on Jordanian territory. The judges found that there is no immunity for heads of state before an international criminal court with authority. As a result, the judges concluded that no traditional principle of head-of-state immunity – which protects leaders on foreign soil from arrest – existed that was necessary to be waived.

The chamber found that the Security Council resolution that referred Darfur to the ICC also required Sudan to cooperate fully with the court. The judges determined that this requirement meant that Sudan had to ensure that any immunities could not be a bar to the court’s functioning.

The chamber found that Jordan was also obligated to arrest al-Bashir as both Jordan and Sudan are parties to the Convention on the Prevention and Punishment of the Crime of Genocide, and that members of the convention commit to prevent and punish genocide, one of the crimes with which al-Bashir is charged.

The chamber also ruled by a majority that the pre-trial chamber erred by sending Jordan’s failure to cooperate to the Security Council and the court’s assembly of members. The chamber found that this action was based on an incorrect conclusion that Jordan did not try to consult the court ahead of the visit.

Sudan has repeatedly obstructed the ICC’s investigation in Darfur, and there are four other individuals subject to outstanding ICC arrest warrants for alleged crimes in Darfur.

During his presidency, al-Bashir sought to maintain legitimacy – and flout the ICC – by traveling abroad while subject to arrest warrants. Some countries, both members and non-members of the ICC, hosted him, while others made clear he was not welcome on their territories or rescheduled meetings to avoid his presence. Nongovernmental groups across Africa and globally have campaigned for his surrender.

On April 17, media reported that al-Bashir was being held in Kober prison in Khartoum, Sudan’s capital. The transitional military council that assumed control in the country has said they would not hand al-Bashir over to face justice at the ICC, but could try him in Sudan or a forthcoming civilian government could do so. Human Rights Watch urged Sudan’s council to promptly turn al-Bashir over to the ICC. 

The ICC appeals chamber heard oral arguments from September 10-14, 2018. ICC prosecutors have been investigating al-Bashir since 2005, when the Security Council referred the situation in Darfur to the ICC. There are two outstanding arrest warrants against al-Bashir stemming from the investigation for five counts of crimes against humanity, two counts of war crimes, and three counts of genocide. The ICC had previously found that ICC members, including South Africa, Chad, Uganda, Malawi, and Djibouti, breached their obligations as ICC members by failing to arrest al-Bashir when he visited their countries.

“Whether president or prisoner in Sudan, al-Bashir remains a fugitive from the ICC on charges of the gravest crimes committed in Darfur,” Keppler said. “Al-Bashir should be surrendered to the ICC to face the charges against him.”

Posted: January 1, 1970, 12:00 am

A soldier walks past women carrying their belongings near Benitu, northern South Sudan, February 11, 2017. 

REUTERS/Siegfried Modola

Efforts to ensure justice for victims of widespread atrocity crimes committed during South Sudan’s civil war hit a low point this week with news that the government has hired US-based lobbyists with the express purpose of stopping the creation of a special war crimes court.   

The Hybrid Court for South Sudan, set out in the country’s 2015 and 2018 peace deals, could be an important way to hold perpetrators to account for horrific abuses committed in a conflict characterized by unlawful killings, torture, enforced disappearances, rape and sexual violence, and destruction of property. More than four million have been forced to flee their homes.

The court, which would bring together judges and prosecutors from South Sudan and across Africa, is urgently needed to curtail impunity for serious crimes that continue to fuel a cycle of violence in the country. As Human Rights Watch has documented, the country’s domestic court system is not prepared to handle such sensitive, complex cases.

In 2014, the African Union undertook an unprecedented Commission of Inquiry on South Sudan, detailing the serious crimes committed by all parties to the conflict. And since the 2015 peace deal was signed, the AU Commission has been trying to secure approval from the South Sudanese authorities for the initial steps required for the hybrid court’s creation.

But South Sudan’s government has consistently delayed this process, and news that it is now actively trying to block it clearly demonstrates that the authorities don’t want the court to see light of day.

It’s now up to the AU Commission to step up. It should unilaterally finalize the relevant documents needed to set up the court, and the AU Peace and Security Council should ask to be kept abreast of preparations. International actors, including the United Nations, the US, and AU members that supported the Commission of Inquiry, should do all they can to promote the AU’s stated commitment to justice.

Because this past week has exposed an ugly reality: the Hybrid Court for South Sudan – and its prospects for bringing justice to victims – will never come to pass if it depends on the South Sudan authorities.

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

The African Union should reconsider its decision to restrict the autonomy and mandate of the African Commission on Human and Peoples’ Rights.  In this video, African human rights and civil society leaders from across the continent joined Human Rights Watch to express concern that the AU Executive Council’s decision to limit the Commission's autonomy will cripple its ability to independently uphold African human rights standards and hold member states accountable for abuses. 

Posted: January 1, 1970, 12:00 am

From left to right: Sidiki Abass, Mahamat Al Khatim, and Ali Darassa.

© Human Rights Watch; © Edouard Dropsy for Human Rights Watch; © 2016 CNC

(Nairobi) – Prosecutors in the Central African Republic should investigate militia leaders recently awarded government positions.

On March 24, a presidential decree named the armed groups leaders Ali Darassa, leader of the Union for Peace in the Central African Republic (Unité pour la paix en Centrafrique, UPC), Mahamat Al Khatim, leader of the Central African Patriotic Movement (Mouvement patriotique pour la Centrafrique, MPC), and Sidiki Abass (also known as Bi Sidi Souleymane), commander of a group called Return, Reclamation, Rehabilitation, or 3R, as special military advisers to the prime minister’s office. All three have led armed groups responsible for widespread atrocities in recent years, including war crimes and possible crimes against humanity. These posts were granted as a concession to the armed groups under a peace accord signed in February 2019 in Khartoum, Sudan.

“Ali Darassa’s appointment as a military adviser for the area where his men may have committed war crimes should not be used to give him immunity from investigation into the UPC’s abuses,” said Lewis Mudge, Central Africa director at Human Rights Watch. “Against this backdrop, senior United Nations and African Union officials should make clear to all the victims of UPC abuses that there can be no lasting peace without justice for those heinous crimes.”

On April 15, in Bambari, Darassa participated in a ceremony presenting future members of special mixed units. The units will incorporate both national military and rebel fighters. This ceremony was attended by the UN Under-Secretary General of Peace Operations, Jean-Pierre Lacroix; the AU’s Commissioner for Peace and Security, Smaïl Chergui; and the country’s prime minister, Firmin Ngrebada. Human Rights Watch has documented serious abuses by the UPC since 2014, when the group took control of the town of Bambari, in the center of the country, including targeted killings of civilians, extrajudicial executions, attacks on displacement camps, and rape.

Percée remarquable dans la mise en oeuvre de l'accord de paix en #RCA avec cette visite conjointe #UA -#UN et Premier Ministre à Bambari et premieres retrouvailles des FACA,anti balaka et UPC dans cadre Unités Mixtes de Securité. pic.twitter.com/GuUwr24m7v

— Amb. Smail Chergui (@AU_Chergui) April 15, 2019

Fighters under Al Khatim’s command have committed war crimes, including attacks on civilians, since 2015 when his group, which controls territory in the center of the country, was created. He was named military adviser for special mixed units in the center north zone.

Abass’s 3R group has killed civilians, raped, and caused large-scale displacement in the northwest zone since 2015. Abass was named military adviser to special mixed units in the northwest zone.

The appointments were made in line with a peace accord, negotiated by the AU during 18 months of talks with 14 armed groups and the central government, often while the groups continued their brutal attacks on civilians. The accord seeks to “definitively eliminate” the causes of the conflict and promote national reconciliation and calls for some fighters from armed groups to be incorporated into “special mixed security units,” which would also include members of the country’s national security forces. Armed group leaders promised to end “all hostilities and forms of violence.”

The accord is vague on steps needed to ensure post-conflict justice and does not mention specific judicial processes, or recent efforts to promote justice in the country, though it recognizes the role impunity has played in entrenching violence. The Special Criminal Court, a new court in the domestic system mandated to try war crimes and crimes against humanity, was established in recognition of the cycles of impunity that have driven conflict in the country and formally began operations in 2018. The court has significant support from the UN, including the international peacekeeping force on the ground since September 2014, known as MINUSCA.

Activists and victims have expressed deep concern that the agreement will be used to sideline justice for past crimes.

In 2014, the International Criminal Court (ICC) opened investigations into crimes committed in the Central African Republic since August 2012. The court arrested two leaders of the anti-balaka militias that were parties to the conflict, Alfred Yékatom and Patrice Edouard Ngaissona, in late 2018.

The current crisis began in late 2012, when mainly Muslim Seleka rebels ousted President François Bozizé and seized power through a campaign of violence and terror. In response, anti-balaka groups were formed and began carrying out reprisal attacks on Muslim civilians in mid-2013.

Victims of crimes committed by the UPC, MPC, and 3R have expressed anger and frustration to Human Rights Watch since the new posts were announced.

“How could the government and the international community dare to nominate and install this man as an official?” a 30-year-old survivor of a rape by a UPC fighter told Human Rights Watch. “How could they promote and validate someone whose men killed, raped, burned villages, and tortured the population? I have lost the strength and hope to try to seek justice because Darassa is now charged by the state with my security.”

A 45-year old man from Ngakobo, an area that has seen repeated UPC attacks on civilians at a displacement camp, told Human Rights Watch that UPC fighters had threatened civilians in the Boykotta area in the last two weeks. “We were always told Darassa would face justice, but now the person whose men killed us is charged with our security?” he said. “It is not logical.”

In February 2017, Darassa and the UPC left Bambari in response to a MINUSCA request. UPC fighters are alleged to have shot at UN peacekeepers in 2015, which may constitute a war crime under international law. Fighting broke out between peacekeepers and UPC fighters in January 2019, when UPC fighters killed two policemen outside of Bambari ahead of a visit by the country’s president. The fighting resulted in a UN attack on a large UPC base at Bokolobo, 60 kilometers south of Bambari.

On April 19, the Central African government and MINUSCA issued a news release stating that although Darassa is a special adviser, he has not been given an official security role for the town of Bambari. The news release also states that the mixed units, when operational, will be under the command of the national army.

MPC fighters participated in an egregious attack in October 2016, when they killed at least 37 civilians, wounded 57, and forced thousands to flee a camp for displaced people in Kaga-Bandoro, where some 7,000 people were living, after being displaced by fighting in the region. Fighters destroyed at least 175 homes in the neighborhoods around the displacement camp and destroyed at least 435 huts in the camp itself.

In 2016, Human Rights Watch documented the killing of scores of civilians and received reports that 3R fighters raped at least 23 women and girls in Koui sub-prefectures in Ouham Pendé province. Attacks on civilians and nongovernmental organizations continued into at least 2017.

The installation of Darassa in his official capacity in Bambari and the appointments of Al Khatim and Sidiki is difficult to reconcile with the principles of the Bangui Forum, the conclusions of national consultations held in May 2015, Human Rights Watch said. Its declaration states that “no amnesty” would be tolerated for those responsible for and acting as accomplices in international crimes. The forum brought together more than 800 representatives of community and other nongovernmental organizations, political parties, and armed groups from across the country. It recognized that the lack of justice in the Central African Republic since 2003 was one of the main causes of successive crises.

“The Bangui Forum made it clear that the way forward for peace in the Central African Republic is to say no to impunity, and that should be respected,” Mudge said. “These militia leaders should be investigated with the intent to prosecute based on the evidence, and the national government, the UN, and the AU should strongly support efforts to hold key figures responsible for these crimes to account and make justice a reality for victims.”

Posted: January 1, 1970, 12:00 am

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

© 2016 UN Photo/Rick Bajornas
 

Recently, a panel of International Criminal Court (ICC) judges unanimously rejected Prosecutor Fatou Bensouda’s November 2017 request to open an investigation into possible war crimes and crimes against humanity during Afghanistan’s brutal armed conflict. The decision effectively slammed the door in the faces of victims and their families who have had no recourse to justice.

The conflict in Afghanistan has been marked by targeted attacks on civilians by the Taliban and other insurgents; torture, rape, enforced disappearances, and extrajudicial killings by Afghan police and security forces; and abuses by foreign forces, notably the United States military and Central Intelligence Agency (CIA). The judges agreed with the prosecutor’s assessment that there was a reasonable basis to believe that crimes in the court’s mandate had been committed and were sufficiently grave to fall under the ICC’s umbrella.

The judges likewise shared the prosecutor’s conclusion that none of those most responsible for these crimes, whether members of the Taliban, Afghan Forces, or US personnel, had been brought to justice—a critical determination given that the ICC can only act as a court of last resort. But then the judges took the unexpected step of assessing whether moving ahead would be in the “interests of justice”. The judges decided it wasn’t and denied the prosecutor’s request.

The prosecutor’s office is assessing a possible appeal of this devastating decision. But if it stands, it means the ICC cannot investigate possible war crimes and crimes against humanity in Afghanistan.

The phrase “interests of justice” is one that should be interpreted narrowly to remain consistent with the court’s founding principles, as many have argued, including Human Rights Watch and the Office of the Prosecutor. The judges, on the other hand, use an extremely broad approach that could do real damage in constraining the ICC’s ability to act in the face of serious international crimes.

The judges acknowledge that 680 of the 699 victims’ applications to the ICC supported an investigation. But in their view, it would only be in the interests of justice to move ahead with the case if it would result in effective investigations and the successful prosecution of cases within a reasonable time frame.

The judges note the difficult circumstances in Afghanistan including political instability, which in part justify the prosecutor’s 11-year preliminary examination of possible crimes there.

The judges also speculate that “subsequent changes within the relevant political landscape” in Afghanistan in and “key states” will “prove even trickier” in an investigation. That was most likely a nod to both the current Afghanistan peace talks and the Trump administration’s increasing attacks on the ICC, especially because its Afghanistan investigation could have extended to US nationals.

The judges further stretch their analysis to include the court’s budget, measuring the difficulty of pursuing the Afghanistan investigation against the court’s limited resources.

Nothing the judges said is especially new or earth-shattering. It’s no secret that criminal investigations in situations of ongoing conflict are difficult and that the cooperation by states subject to the court’s investigations has too often been weak. This is true even of some ICC member countries and other key bodies like the UN Security Council. As conflicts rage around the world, there is a growing gap between the ICC’s mandate and the political support and financial resources available allowing it to act effectively.

But what’s new and disturbing is the judges’ use of the amorphous “interests of justice” to allow these political and practical considerations to neuter the ICC’s mandate. The judges’ logic would limit the court to situations in which cooperation by states is guaranteed. In so doing, they have handed states a playbook to insulate themselves from the law’s reach.

The judges’ speculation about the lack of cooperation misses the key point that overcoming cooperation challenges is part and parcel of a court tasked with prosecuting those otherwise considered untouchable, not a reason to refrain from acting. Premising the opening of investigations on the likelihood of arrest and eventual trial is particularly troubling. Clearly, without arrest, there can be no justice, but this is a long game.  Justice that once seemed impossible can one day materialize. Those indicted but protected from arrest may suddenly be brought to justice, as borne out by the experience of other international tribunals such as for the former Yugoslavia and Sierra Leone.

Underlying the judges’ reasoning is a concern for the court’s legitimacy if it fails to match victims’ expectations. And, it is true, recent acquittals in the high-profile Bemba and Gbagbo cases (indicted leaders from Democratic Republic of Congo and Cote d’Ivoire, respectively) have dismayed victims and ICC supporters. But by signaling their willingness to sacrifice the rule of law at the altar of what the political market will bear, the judges have themselves done significant damage to the court’s credibility.  

Decades of impunity in Afghanistan have made it clear to victims of grave crimes and their families that the interests of the powerful will almost always supersede their interests and their right to see those responsible held to account. By opting out of an investigation of the likely war crimes and crimes against humanity in Afghanistan, the judges have effectively told the victims that the ICC won’t stand up for them either. And that’s a dangerous message that will resonate well beyond Afghanistan.

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

Residents of Bossangoa, Central African Republic, lie on the ground of the compound of FOMAC, the regional peacekeeping Multinational Force of Central Africa, on December 5, 2013. The residents had fled from gunfire from anti-balaka forces. FOMAC troops tried to protect people from anti-balaka attacks in the town, which lies 300 kilometers (190 miles) north of the capital, Bangui.

“Our brothers, who have attacked us, must be brought to justice,” a victim of the violence in the Central African Republic told me last week in the country’s capital Bangui.

“Justice counteracts this culture of violence… It can change the behavior, not only of criminals, but also of the state,” a human rights defender also told us.

Other victims, activists, and lawyers echoed these sentiments during my week in Bangui, along with deeply held concerns that vague provisions on accountability in the recent peace agreement could be used to sideline the delivery of justice for atrocities committed in the country.

Victims’ calls for accountability have been constant since national consultations, called the Bangui Forum, were held in 2015. These calls have been bolstered by the creation of a new Special Criminal Court that is, at last, gaining long-sought momentum.

The Special Criminal Court is unique in the Central African Republic as it has, in the words of one local activist, “a national jurisdiction, with an international dimension.” It has a combination of international and domestic judges, prosecutors, and other staff, and operates with significant United Nations logistical and other kinds of support.

The law creating the court passed in 2015, but legal, administrative, and bureaucratic obstacles delayed its official launch of operations until October 2018.

But investigations have opened at last. And outreach about the court to the country’s largely non-literate population, including through radio, theater, and cartoons, is underway. “We can finally see the beginning of the work of the Special Criminal Court,” one human rights defender told us.

Conducting investigations and protecting witnesses where armed groups control some 80 percent of the country will be an uphill battle. The court also lacks secure funding and is operating with a weak and limited infrastructure.  

But the court is the country’s best chance to render accountability for the horrific crimes that have been committed, especially since 2013. The Central African Republic government and its international partners should firmly back the Special Criminal Court.

The victims and activists I spoke to told me the future of the country depends on justice. As one human rights defender explained: “Without justice, everything else is wrecked.”

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