A grave in Kosovo: “Unidentified.”

© FRED ABRAHAMS ⁄ HUMAN RIGHTS WATCH

This week marks 20 years since the end of the Kosovo war. What began as systematic Serbian state oppression led to attacks by an ethnic Albanian armed group, a vicious government response, and 78 days of NATO airstrikes.

Civilians paid a hefty price. In Kosovo, Serbian and Yugoslav forces rampaged through villages burning homes, executing men, and raping women and girls. Roughly 850,000 Kosovo Albanians were forcibly expelled.

Human Rights Watch’s main report on the conflict found “a coordinated and systematic campaign to terrorize, kill, and expel the ethnic Albanians of Kosovo that was organized by the highest levels of the Serbian and Yugoslav governments.” Serbian authorities tried to hide those crimes by moving hundreds of bodies to Serbia and dumping them in mass graves.

These were not the conflict’s only crimes. The ethnic Albanian insurgency known as the Kosovo Liberation Army (KLA) also abducted and murdered Serbian, Roma, and Albanian civilians during and after the war. NATO forces used cluster munitions and its attacks killed about 500 civilians, some in legally dubious strikes.

Today, 1,653 people remain missing from the war: 1,092 Albanians, and 562 Roma and Serbs.

Justice is mostly missing, too. The International Criminal Tribunal for the Former Yugoslavia (ICTY) indicted Serbian leader Slobodan Milosevic for his role in Kosovo, but he died during trial. Six of his senior co-conspirators were convicted for war crimes and crimes against humanity in Kosovo, three of whom were granted early release after serving two-thirds of their sentences. One of the six, police chief Vlastimir Djordjevic, whom the ICTY found guilty of coordinating the body-removal operation, is eligible for early release this month. 34 NGOs from Serbia and Kosovo have opposed that until he shares information about the location of missing persons.

Other senior security officials credibly implicated in war crimes have eluded justice. A Belgrade-based war crimes court has focused on low- and mid-level perpetrators, and ignored many of the most serious Kosovo crimes, including the removal of bodies. The European Union, which Serbia aspires to join, has not made war-time accountability a top demand.

Meanwhile, senior leaders of the KLA accused of killings and body transfers to Albania remain  at-large, some in high government posts. A new court in The Hague offers hope for justice, and Serbia’s protection of war criminals does not justify attempts to undermine that chance.

Some people advocate a turn of the shoulder: let wounds heal with time. The EU has focused on negotiations to normalize Kosovo-Serbia relations. As important as that dialogue is, justice is a critical medicine for lasting health.

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

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
Video

Gambia: Commission Uncovers Ex-Dictator’s Alleged Crimes

Yahya Jammeh Accused of Murder, Torture, Rape

 
(The Hague) – A Gambian truth commission has heard testimony that former president Yahya Jammeh was responsible for numerous grave crimes during his 22 years in office, Human Rights Watch said today. These include ordering the killing and torture of political opponents, the murder of 56 West African migrants, and “witch hunts” in which hundreds of women were arbitrarily detained. Jammeh also allegedly participated in the rape and sexual assault of women brought to him.
 
On December 5, 2019, the Gambia Truth, Reconciliation, and Reparations Commission (TRRC) will conclude its first year of publicly televised hearings. The hearings, which included the testimony of victims and former government officials, highlight the need for a criminal investigation of Jammeh, who has lived in exile in Equatorial Guinea since his departure from Gambia in January 2017. Human Rights Watch today also released a new video, “Truth and Justice in The Gambia,” highlighting the work of the truth commission and the victims’ quest for justice.
 
“The truth commission is systematically amassing evidence of Yahya Jammeh’s alleged crimes,” said Reed Brody, counsel at Human Rights Watch who works with Jammeh’s victims. “Thanks to the commission’s work and to the courage of the survivors, we are learning more each day about the horrors and brutality that Gambians endured over 22 years.”
 
As of November 28, the truth commission had heard 168 witnesses, including 74 former government “insiders” such as 4 ministers, the chief of police, the chief protocol officer, a presidential bodyguard, and military junta members.
 
Former members of the “Junglers,” Jammeh’s elite hit squad, named the former president in a series of crimes that they claimed to have carried out, including:
  • The 2004 murder of a newspaper editor, Dayda Hydara: Lt. Malick Jatta told the truth commission that the Junglers’ leader, Tumbul Tamba, gave each member 50,000 GMD (US$1,250 at the time) as a token of appreciation from Jammeh after the killing.
  • The 2013 murders of Alhajie Ceesay and Ebou Jobe, two Gambian-American businessmen whose bodies were decapitated and mutilated: Sgt. Omar Jallow and Staff Sgt. Amadou Badjie testified that Jammeh ordered that “they be chopped into pieces.”
  • The 2005 killing of 56 African migrants, including 44 Ghanaians: Jallow testified that Lt. Col. Solo Bojang, the operation’s leader, told the men that “the order from … Jammeh is that they are all to be executed.” The testimonies of Jatta and Jallow corroborate a May 2018 report by Human Rights Watch and TRIAL International.

Three former officials – Sanna Sabally, first vice chairman of Jammeh’s 1994 to 1996 military junta, Demba Njie, former army chief of staff, and Alagie Martin, former commander of the State Guards battalion – testified that Jammeh ordered the execution of the alleged ringleaders of a November 1994 attempted coup.

The truth commission also heard testimony from Fatou “Toufah” Jallow, the winner of the main state-sponsored beauty pageant in 2014, that Jammeh raped her when she was 19. And a protected witness testified that that Jammeh hired her as a “protocol girl” and promised her a scholarship, but when she refused sex, he fired her and withdrew the scholarship. Together with Jammeh’s former protocol chief they provided further evidence of a system, described in a June 2019 report by Human Rights Watch and TRIAL International , in which aides regularly pressured women to visit or work for Jammeh, who then sexually abused many of them.

Since November 11, the truth commission has been holding hearings on the 2009 “witch hunts” in which foreign “witch doctors” (or marabouts) and soldiers took up to 1,000 women to secret detention centers and forced them to drink hallucinogenic concoctions, with several reported deaths and rapes. The former Gambia police chief, Ensa Badjie, testified that Jammeh had ordered the “witch doctors” to identify “witches” in the police force. Multiple witnesses reported that that soldiers and state vehicles accompanied the marabouts and that the head of their security team was a prominent “Jungler.”

The Truth, Reconciliation, and Reparations Commission has said that future sessions will examine in detail the killing of the 56 West African migrants as well as Jammeh’s “presidential treatment program,” in which HIV-positive Gambians were forced to give up their medicine and put themselves in Jammeh’s personal care. The commission has one year remaining in its mandate, though an extension is possible.

The truth commission hearings have been widely followed on radio and television throughout the country. The Point newspaper and the African Network Against Extrajudicial Killings and Enforced Disappearances (ANEKED) publish digests of each three-week session.

One of the commission’s tasks is the “identification and recommendation for prosecution of persons who bear the greatest responsibility for human rights violations and abuses.”

Earlier this year, the government released several “Junglers” who testified to their alleged crimes after spending two years in custody, pending the commission’s recommendations on whether to prosecute them. Many victims’ groups decried their release.

In March, an official Gambian commission and the Organized Crime and Corruption Reporting Project, an investigative reporting platform, accused Jammeh of stealing up to $1 billion from state coffers.

“I want to see Yahya Jammeh in court, not just for what he allegedly did to my father, but for all the murders, the rapes, the torture,” said Fatoumatta Sandeng, daughter of Gambian opposition leader Solo Sandeng (whose murder in custody in 2016 galvanized opposition to Jammeh) and who is now spokesperson for the Campaign to Bring Yahya Jammeh and his Accomplices to Justice. “We victims need justice before we can reconcile and move on.”

Posted: January 1, 1970, 12:00 am

(The Hague) – A Gambian truth commission has heard testimony that former president Yahya Jammeh was responsible for numerous grave crimes during his 22 years in office, Human Rights Watch said today. These include ordering the killing and torture of political opponents, the murder of 56 West African migrants, and “witch hunts” in which hundreds of women were arbitrarily detained. Jammeh also allegedly participated in the rape and sexual assault of women brought to him.

Posted: January 1, 1970, 12:00 am

Seventeenth session of the International Criminal Court's Assembly of States Parties in The Hague, Netherlands, December 2018. 

© 2018 Syd Boyd/Coalition for the International Criminal Court

(The Hague) – The annual meeting of International Criminal Court (ICC) member countries is a pivotal moment to strengthen the court’s delivery of justice, Human Rights Watch said today. The 18th session of the ICC’s Assembly of States Parties will take place in the Hague from December 2 to 7, 2019. 

Human Rights Watch issued a 16-page report in advance of the session that addresses serious challenges facing the court and makes recommendations for ICC members. Missteps by court officials in policy and practice, along with a growing workload, inadequate resources, and inconsistent state support, have left the court struggling to deliver on expectations for justice.

“Atrocities across the globe are a reminder that the ICC, with all its shortcomings, remains the essential court of last resort,” said Elizabeth Evenson, associate international justice director at Human Rights Watch. “The court’s annual meeting, as well as the 2020 elections for the next ICC prosecutor and a third of the court’s judges, present critical opportunities for change that member countries and justice supporters shouldn’t miss.”

In May, the court’s leadership responded to several notable setbacks by requesting an independent review of court practice by expert practitioners, in line with previous assessments carried out for earlier international tribunals. The experts, whose appointment is expected to be approved at the upcoming Assembly session, will be mandated to issue a report and recommendations for institutional changes by September 2020.

The expert group’s work could help strengthen the ICC’s effectiveness, but it should respect the court’s judicial and prosecutorial independence, Human Rights Watch said. Countries at the upcoming session should ensure that the group begins work promptly with the necessary resources and independence.

The court is also facing growing threats to its mandate from governments. Earlier in 2019, the Trump administration revoked ICC Prosecutor Fatou Bensouda’s entry visa to the United States, taking up one of several threats the administration had previously made against court officials. These were prompted by potential ICC investigations in Afghanistan of US military and Central Intelligence Agency personnel for alleged crimes related to the conflict there, as well as of nationals of close allies such as Israel.

Hearings in the appeal of the decision not to allow Bensouda to proceed with an investigation in Afghanistan are scheduled for December 4 to 6. ICC member countries should voice their support for the court as a crucial, yet fragile component of the international rules-based order tasked to tackle entrenched impunity where it has authority, regardless of the nationality of those allegedly responsible for the crimes. 

Member countries should also take other steps to strengthen the court. Election of the most highly qualified individuals in 2020 is a central responsibility of member countries and requires a strictly merit-based approach. Countries should adopt measures at the session to strengthen the mandate of the Assembly’s advisory committee to ensure rigorous assessment of judicial candidates, Human Rights Watch said. 

Member countries will also set the court’s budget for next year. For some time, a few members have urged minimizing budget increases. A fresh investigation into the reported forced deportation of ethnic Rohingya from Myanmar into Bangladesh shows that the gap between the court’s resources and the justice needs on its docket is greater than ever.

“A stronger ICC firmly supported by its member countries will be more resilient to efforts to derail its crucial mandate,” Evenson said. “Governments meeting at this year’s Assembly session should strengthen the ICC to ensure that the court can effectively deliver on expectations for justice.”

Posted: January 1, 1970, 12:00 am

Rohingya refugees gather in an open field at Kutupalong refugee camp in Ukhia, Cox's Bazar, Bangladesh to commemorate the two-year anniversary of the Myanmar military’s ethnic cleansing campaign in Rakhine State on August 25, 2019. 

© 2019 K M Asad/LightRocket via Getty Images
Watch out, Myanmar.

Until last week, Myanmar's government had gotten away with countless atrocities against Rohingya Muslims in Rakhine State. The military's ethnic cleansing campaign of murder, rape, and arson has been detailed in reports by the United Nations, the media, and human rights groups, including my colleagues at Human Rights Watch. But holding Myanmar to account was knocking on a locked door.

Then, in just four days last week, a series of developments busted that door open.

On November 11, Gambia—a small West African country emerging from a brutal dictatorship—courageously brought a case against Myanmar before the International Court of Justice for its atrocities against the Rohingya as violating the Convention on the Prevention and Punishment of the Crime of Genocide. Gambia's filing marks the first time that a country without any direct connection to the crimes has relied on its membership in the Genocide Convention to bring a case before the world court. Other countries should join the Organisation of Islamic Cooperation in making clear their strong support for Gambia's effort to hold Myanmar's government to account.Ads by scrollerads.com

There have been other breaking developments to bring Rohingya closer to seeing individuals responsible for grave crimes brought to justice, too.

In Argentina, a group of Rohingya and Latin American human rights organizations filed a criminal case against Myanmar's top military and civilian leaders for crimes committed in Rakhine State. They filed the case using the principle of universal jurisdiction – an avenue for crimes so serious that all states have an interest in addressing them.

And now the International Criminal Court will begin investigations into crimes against humanity, notably the alleged forced deportation of more than 740,000 Rohingya into Bangladesh, an ICC member, in 2017. The ICC prosecutor can now officially collect evidence and build cases against individuals responsible for the crimes, which could include the architects of the merciless campaign.

These legal actions stand in stark contrast to the UN Security Council's paralysis on Myanmar's abysmal record of abuse against the Rohingya and other ethnic minorities. The Security Council has been unwilling to meet regularly to address this crisis, let alone refer Myanmar to the ICC, a necessary step since Myanmar isn't a member of the court. An ICC referral remains critical so that all grave crimes against the Rohingya—as well as those committed against ethnic minorities in Kachin and Shan states, where many of the military's brutal tactics have mirrored those in Rakhine State—could be addressed.

Myanmar denies its involvement in atrocities, peddling a flimsy—and disproven—story of massive crimes committed by the Arakan Rohingya Salvation Army, a small ethnic armed group. Satellite imagery alone tells a very different story, revealing the government's bulldozing of numerous Rohingya villages to make way for military installments, erasing valuable evidence of its crimes.

And Myanmar's desire to avoid meaningful steps toward justice has been shown time and again by its national commission of enquiry, whose chair has said that "there will be no blaming, [...] no finger-pointing of anybody." This commission has yet to deliver any results and likely will not if the resounding failure of the previous eight government commissions offer any indication.

On this dismal landscape, these recent developments offer an especially powerful check on Myanmar's presumption of impunity. The turning wheels of justice should make Myanmar's leaders think twice before committing future abuses. It's also a wake-up call for China and other countries that have counted on their influence to shield Myanmar from its international legal obligations. And the strengthening narrative of Myanmar as a pariah state has increased the political cost for countries that would rather avert their eyes to the government's brutality and carry on as usual.

Finally, Rohingya survivors have reason to hope that one day there could be real accountability for the atrocities against them. As the Rohingya author Mayyu Ali wrote, "Our pain is considered. Our suffering is recognized. Our fate from forgotten is recognized."

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

The states parties of the International Criminal Court (ICC) will meet from December 2 to 7, 2019 at the annual session of the Assembly of States Parties (ASP) in The Hague. This will be an opportunity to take important steps to strengthen the court’s functioning and renew support.

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

In the current difficult landscape for the rules-based global order, and for accountability for the worst crimes in particular, the ICC is needed more than ever. However, the court is facing serious internal and external challenges that have hampered its effective delivery of justice. The coming year affords opportunities to seize momentum for meaningful change.

The court’s performance gaps due to various factors have become very evident, underscoring the need for changes in policy, practice, and state support. In the past year, the fact that the written reasons underlying  the acquittal of former Ivorian president Laurent Gbagbo were only filed six months after the oral decision, as well as the decision not to authorize an investigation in the Afghanistan situation based on a problematic interpretation of the principle of “interest of justice,” highlighted some of the challenges driven by shortcomings in the court’s own practice. In addition, the court faces other challenges to inform and meet victim expectations. It also needs increased cooperation, particularly when it comes to arrests, and continues to struggle with financial resources inadequate to its increasing workload.

At the same time, hostile non-member states are seeking to obstruct ICC investigations and weaken its independence. The approach taken by the United States’ government under the Trump administration towards the court, which resulted in the revocation of the prosecutor’s entry visa to the US, remains deeply concerning. The approach could have a chilling effect on the ICC’s work in a number of country situations.

These are daunting challenges, but the election in 2020 of a new prosecutor and six new judges, provided they are conducted on the basis of merit, together with the findings of an anticipated independent expert review described further below and other steps, could create a common framework for improvement.

Human Rights Watch calls on states parties, together with court officials and other stakeholders, to engage in a process of review of the ICC in the coming year aimed at strengthening its delivery of justice with full respect for the principles of judicial and prosecutorial independence. Member states should also take the opportunity at the upcoming Assembly session to renew their support for the court and reiterate their commitment to defend its mandate and independence. A strengthened ICC firmly supported by its states parties will be more resilient to efforts to derail its mandate.

This briefing note sets out recommendations to states parties for the upcoming Assembly session in the following priority areas: 1) enhancing the ICC’s delivery of justice through a process of review; 2) addressing challenges in the external environment; 3) ensuring adequate resources; and 4) adopting a proposed amendment to article 8.

I. Enhancing the ICC’s delivery of justice through a process of review

In the past year, discussions took place in different fora and among various stakeholders—including states parties, the court and civil society—about strengthening the effective functioning of the ICC. On May 10, the president of the court, on behalf of the three court principals, sent a letter to the president of the Assembly calling for an “independent comprehensive expert review of the Court’s performance.”[1]

Following a retreat by the Assembly’s Bureau on June 13, the presidency of the Assembly produced a document (the Matrix) that attempted to coordinate the various discussions around the court’s performance to distill a number of concrete and actionable issues to strengthen the ICC and the Rome Statute system.[2] The Matrix was conceived as a living document, a framework for discussions, and a tool for tracking progress in a multi-tiered process of review.

The proposal for an independent expert review was given further currency through the Matrix. This proposal has now received broad support from states parties, the court, and civil society. In addition, the Matrix envisions parallel initiatives by the court, states parties, and other stakeholders to enhance the work of the ICC and to strengthen the Rome Statute system more broadly. All these initiatives under the umbrella of the process of review should be carried out in synergy with each other and in full respect of the court’s judicial and prosecutorial independence.

A. Independent Expert Review

Human Rights Watch sees the creation of a group of independent experts tasked with assessing a select number of issues confronting the court as an appropriate step toward meaningful improvement in the court’s policy and practice. In order for such independent expert review to be credible, legitimate, and ultimately effective, it should be grounded in the fundamental principles of independence and expertise. Its sole purpose should be to move the ICC forward in delivering on its essential mandate:

  • Independence – The experts should be independent from the court, states parties, and other stakeholders. Ensuring such independence goes to the heart of the credibility and legitimacy of the review.
  • Expertise – The group of independent experts should include eminent individuals with the necessary professional backgrounds to address a cross-section of issues facing the court. Their specialized technical knowledge should be rooted in extensive high-quality professional experience.

In addition, this independent expert review should be transparent and inclusive. Human Rights Watch believes that the experts should engage with a broad range of relevant stakeholders who can provide diverse perspectives, including civil society organizations from ICC situation countries. 

The presidency of the Assembly, in consultation with states parties, court officials, and civil society, produced draft terms of reference for an independent expert review and is in the process of identifying individuals who could form the group of independent experts tasked with carrying out this review. At this writing, states parties are continuing consideration of the terms of reference, how to address the financial resources needed to support the independent expert review, and an Assembly resolution on the broader review process of the ICC and the Rome Statute system. These and the list of experts identified by the presidency should be ironed out ahead of the upcoming Assembly session in order to ensure smooth approval by the Assembly. This will allow the group of independent experts to start its work right after the conclusion of the session. States parties should avoid reopening negotiations on the independent expert review at the Assembly session to make last-minute changes that could undermine an independent, expert, and purpose-driven process. If set up in a timely manner, this independent expert review can provide important guidance in the election of the new prosecutor and six new judges at the December 2020 Assembly session, and thereafter, when those officials take office.

The terms of reference for the expert review should provide a broad mandate; this is essential to ensuring an independent and holistic review, including identification of additional issues that have not been apparent to stakeholders involved, to date, in the development of the Matrix. The terms of reference and Assembly resolution on the broader review process should also recognize the importance not only of the experts’ independence, but additionally respect for judicial and prosecutorial independence. This is critical for the process and, looking ahead, to court and state party consideration of the outcome of the review. The Assembly resolution should include an acknowledgment that the organs of the court will be responsible for considering appropriate measures in response to relevant expert group recommendations. Indeed, some of the topics identified in the Matrix and which could be the subject of expert review—in particular, prosecutorial strategies in the context of preliminary examinations, case selection and prioritization, and completion strategies—raise sensitive questions at the heart of prosecutorial discretion, and, in turn, independence.[3]

Recommendations to ICC states parties:

  • Express, in statements during the Assembly session, including the General Debate, strong support for the independent expert review of the court’s practice and affirm the importance of ensuring that all efforts to enhance the court’s delivery of justice and to strengthen the Rome Statute system are carried out in synergy with each other while safeguarding the principles of judicial and prosecutorial independence.
  • Finalize, within the Bureau, the terms of reference for the independent expert review – including the names of the experts – and recommend them to the Assembly for adoption.
  • Finalize agreement on the financial resources necessary for the independent expert review and the means for providing these resources ahead of the Assembly session in order to avoid reopening negotiations during the session that could stall the establishment of the group of independent experts.
  • Adopt, as the Assembly, the terms of reference for an independent expert review as recommended by the Bureau – including the names of the experts identified by the presidency of the Assembly – and avoid reopening negotiations during the Assembly session.

Related Human Rights Watch Materials

B. Parallel initiatives by the court and states parties

In the past year, ICC officials have engaged in efforts to improve the effectiveness and efficiency of the court’s  operations, including through the formulation of three, interlinked strategic plans for the Office of the Prosecutor, the registry, and the court,[4] and the adoption by the judges of guidelines on the process of judgment drafting as well as for the timeframe for issuing  key judicial decisions.[5] Alongside these efforts, and together with the work to launch an independent expert review of the court’s performance, states parties have started to identify and address issues to enhance the court’s delivery of justice and strengthen the Rome Statute system. These include the review of the procedure for the nomination and election of judges.

At its nineteenth session, the Assembly will elect six new judges—a third of ICC’s 18-member bench—for a period of nine years. States parties have an enormous responsibility to ensure the merit-based election of the most highly qualified individuals as ICC judges. This is among the most important aspects of their stewardship of the court. In view of next year’s election, states parties are negotiating an Assembly resolution to strengthen the process of judicial nomination and election. Human Rights Watch welcomes this initiative and urges the Assembly to adopt this standalone resolution to address weaknesses and gaps in the current process. These include the following:

Mandate of the Advisory Committee on Nomination of Judges – Human Rights Watch has previously expressed support for the Assembly’s establishment of an Advisory Committee on Nomination of Judges (ACN), which is mandated to “prepare information and analysis, of a technical character” on the qualifications of individual judicial candidates and present its analysis to states parties for consideration. Human Rights Watch views the advisory role of the ACN as crucial in guiding states parties’ decisions on judicial elections. Nevertheless, the ACN’s terms of reference, adopted by the Assembly, have limited its effectiveness. Some of these limitations have been documented recently by the Open Society Justice Initiative, in its October 2019 report, Raising the Bar: Improving the Nomination and Election of Judges to the International Criminal Court. For example, the ACN’s terms of reference base its work on Rome Statute article 36 requirements, rather than a broader definition of qualifications. Raising the Bar notes that even with these mandate limitations the ACN has introduced positive changes. These include requiring information regarding national procedures for judicial nominations and, in 2017, providing a basic assessment of “formally qualified” as compared to “particularly well qualified.” But it finds significant scope for the ACN to strengthen the rigor with which it approaches and communicates its assessments, including by requesting additional information regarding candidates.[6] Consistent with the report’s recommendations, states parties should consider amending the ACN’s terms of reference to strengthen its mandate and to empower explicitly the committee in its assessment of candidates and national nominating procedures (see recommendations below).

Period of judicial nomination: The period of time allocated for judicial nomination by states parties currently ends only five months before the election by the Assembly. This is an insufficient amount of time for the ACN to complete its work in a meaningful way and states parties should consider amending the calendar for judicial nomination in view of the 2020 election.

Candidates’ substantial practical experience in criminal trials: Human Rights Watch’s close observation of the court’s functioning since it began operations in 2003 has highlighted the importance of electing judges who possess substantial experience in criminal trials. Managing the court’s proceedings effectively requires judges familiar with the demands of complex criminal trials. Human Rights Watch continues to believe that states parties should prioritize nominating and electing candidates with previous experience in criminal law and procedure as they will be best placed to meet the demands of ICC proceedings.

Vote-trading: States parties should resist the practice of “vote-trading,” in which states agree to support one another’s candidates with minimal regard to the individual’s qualifications. States parties should publicly commit to making merit the decisive criterion and discouraging voting on a quid pro quo basis.

The ICC’s ability to effectively try cases rests on the quality of its judges and only the strongest candidates should be nominated, and ultimately, elected.

States parties also exercise a crucial role in the election of the ICC prosecutor. The election of an individual who exemplifies the qualifications provided for in article 42 of the Rome Statute—an extremely competent person of high moral character with extensive practical experience in criminal cases as well as appropriate managerial experience—is essential. The public's first encounter with the ICC and its greater familiarity with the institution often will come through the investigations of its prosecutor.

When it comes to prosecutorial elections, the deepest, broadest pool of highly qualified nominees is of critical importance. States parties should not treat the election of the ICC prosecutor as they might any other election for a position within an international organization. To carry out its mandate in challenging times, the ICC requires a prosecutor with relevant experience and expertise who meets Rome Statute requirements, and who demonstrates an ethic of public service and commitment to the ICC's mandate as well as an understanding of the international landscape. Individual candidates should be evaluated on the basis of their merits, regardless of state party nomination. In this regard, the role of the Committee on the Election of the Prosecutor in assessing and recommending candidates is crucial.

As noted above, states parties are also expected to adopt an Assembly resolution setting in place a broader process to review the ICC and the Rome Statute system. The resolution is expected to identify priorities to be addressed by states parties in 2020, and Human Rights Watch looks forward to engaging with states parties as they identify areas of focus for next year. With the upcoming elections of the next prosecutor and six new judges states parties should also prioritize these elections, along with continued improvement in nomination and election processes.

Recommendations to ICC states parties:

  • Affirm in General Debate statements the importance of states parties nominating and electing candidates in the upcoming judicial election on the basis of merit and making statements regarding merit throughout the election period.
  • Adopt a standalone Assembly resolution with changes directed at improving the judicial nomination and election process. These could include:
    • Amending the terms of reference of the ACN to strengthen its mandate by requiring a more rigorous assessment of the candidates and specifying that the ACN should clearly indicate if a candidate does not qualify for judicial service;
    • Modifying the calendar for judicial nomination to allow a longer period of time for the ACN’s assessment of candidates;
    • Urging states parties to nominate and elect candidates with substantial practical experience in complex criminal trials; and
    • Urging states parties not to engage in “vote-trading” during judicial election.
  • Affirm in General Debate statements the importance of states parties evaluating candidates for the post of ICC prosecutor and electing the next prosecutor on the basis of merit.
  • Include language in the Assembly resolution on the broader review of the ICC and the Rome Statute system affirming that all efforts by different stakeholders should respect the principles of judicial and prosecutorial independence.
  • Prioritize in the review process consideration of how the court, states parties, and civil society can revitalize a genuine dialogue on ensuring the ICC has resources adequate to its workload (see part III below).

II. Addressing Challenges in the External Environment

Human Rights Watch welcomes recognition in the Matrix of the importance of examining how states can provide cooperation to the court and addressing other challenges arising out of the external environment in which the court works. This builds on state party discussions over several years. As the court, states parties, and other stakeholders move forward with the review process described above, including on these topics, it is also essential that states parties work during the Assembly session, at the national level, and in multilateral fora to make visible political support for the court, particularly when its mandate is challenged or politically contentious.

The ICC has faced recurrent politicized opposition.  At each juncture, concerted efforts by states parties have assisted in overcoming that opposition and keeping open the space needed for the court to work independently. Last year’s Assembly session took place in the shadow of renewed efforts by the US government to discredit the court’s legitimacy and threats to court officials and member states. In March, the US followed through on one of these threats, announcing a policy of visa bans on ICC staff involved in the court’s potential investigation of US nationals in Afghanistan. It made clear that the policy also applied to investigations of its allies’ nationals, including Israel, and that it would take further action, including imposing sanctions, “if the ICC does not change its course.”[7] The Trump administration confirmed in early April that it had revoked ICC Prosecutor Fatou Bensouda’s visa.[8]

These threats and actions are a clear attempt to bully the court from its scrutiny of US conduct. States parties have responded, including by working together publicly to press back on US threats.[9]  Unfortunately, in denying the prosecutor authorization to investigate in Afghanistan on questionable legal grounds, the ICC pre-trial chamber has given rise to the perception that the court is vulnerable to this pressure.[10]

With the pre-trial chamber decision now on appeal, the US has made clear that its policy remains in force, essentially restating its threats as judges take up consideration of the issue.[11]

Hearings scheduled in the appeal from December 4-6 coincide with this year’s Assembly session. At the heart of the appeal is the pre-trial judges’ use of an extremely broad approach to the “interests of justice” that appears to premise investigations on guarantees of state cooperation. It is true that criminal investigations in situations of ongoing conflict are difficult and resource-intensive, and the cooperation by states subject to the court’s investigations, as well as other key bodies, like the UN Security Council, has too often been weak. The answer, however, is not to neuter the court’s mandate and constrain its ability to act in the face of serious international crimes. Rather, states should renew their commitment to overcoming cooperation challenges and to provide the court with resources adequate to the demands of its workload. By using this deeply flawed approach to assess the prosecutor’s request for an investigation – and speculating about political considerations in determining the viability of an investigation – the pre-trial chamber judges have undermined the court’s credibility.

States parties will need to grow more resolute in defending the court’s independence, in order to avoid a chilling effect on its work. They also need to defend the vision underlying the Rome Statute and which the Afghanistan pre-trial chamber decision challenges—that is, the vision of a court of last resort to tackle entrenched impunity within its jurisdiction, regardless of the nationality of perpetrators.

This is not easy, particularly considering that these threats are part of the weakening of commitment to a rules-based international order more broadly, which affects key institutions, such as the UN Security Council, on which the ICC also depends for support. States parties should continue to seize opportunities to voice clear support for the ICC, including at the upcoming Assembly session, and to include support for the ICC in their bilateral or multilateral dialogues with the US administration, among other steps.

To encourage fresh thinking about and activity on this difficult landscape, states parties should also find opportunities during the Assembly session, whether in General Debate statements, plenary discussions, or side events, to identify the underlying political challenges in the external environment and develop new approaches to meeting them. Addressing the acute challenges posed to the court—and making further progress on longstanding goals related to cooperation, complementarity, and universality—should be linked to deeper assessment of how to shore up commitment to the rule-of-law globally and with it, the norm of accountability. Recognizing the ICC as a bulwark against the erosion of this norm could open new avenues to mainstream and express support for justice, including in other multilateral fora and regional bodies.

Recommendations to ICC states parties:

  • Send high-level representation to make strong General Debate statements in support of the ICC, bearing in mind the importance these statements have in the eyes of affected communities who look to the court for justice when all other avenues are closed. These statements should emphasize the importance of the ICC as a bulwark against the erosion of the rules-based international order and express a willingness to defend the court from threats to its independence and effective functioning, as well as the integrity of the Rome Statute. These statements should also defend the vision underlying the Rome Statute, that is, a court of last resort to tackle entrenched impunity within its jurisdiction, regardless of the nationality of perpetrators;   
  • Identify opportunities during the Assembly meeting to discuss challenges in the external environment, in particular, political measures against the court, and to link support for the ICC with other efforts to buttress the rules-based international order, including in other fora like the UN General Assembly and Human Rights Council;
  • Announce, in General Debate statements, during the cooperation plenary session, or under other relevant agenda items, these or other concrete pledges of assistance:
    • Continued attention to raising awareness of the ICC and Rome Statute system with national audiences, including the general public;
    • Commitment to mainstream the ICC and related issues within and across national governments and into the work of the UN and other international and regional organizations;
  • Strengthened efforts to pursue targeted strategies to encourage additional Rome Statute ratifications.
  • Retain and strengthen language in the Omnibus resolution resolving to work together as states parties to address threats to the legitimacy and independence of the ICC; and
  • Publicize Assembly participation and General Debate statements nationally through press statements and conferences, the use of social media, and other communication tools.

Related Human Rights Watch materials

III.Ensuring adequate resources

ICC states parties will decide during the Assembly session on the court’s budget for the coming year. For 2020, excluding interest on the host state loan, the ICC has requested €147.17 million or an increase of 1.8 percent over its €144.55 million budget approved for 2019. The Committee on Budget and Finance has recommended a budget of €145.71 million, or an increase of just 0.81 percent. The Committee’s recommendations, if adopted, would result in a minimal 1.2 percent increase for the Office of the Prosecutor, while the registry and judiciary will again see decreases.[12]

For more than a decade, Human Rights Watch has expressed concern that the call by some states parties for zero growth in the court’s budget has been one factor in undermining a genuine dialogue between the court, states parties, and civil society as to the resources adequate to deliver on the court’s mandate, as well as the willingness of ICC officials to come forward with budget requests more adequate to meet the court’s workload. We recognize that the significant change needed in court practices and policies to enhance its performance—as referenced above—has likely become a further factor.

But negotiations to set the annual budget of the court appear to be drifting ever further and further away from ascertaining and meeting real resource needs in light of the workload the court faces. While the Office of the Prosecutor in 2015 projected that to conduct six active investigations it would require a yearly budget of €60.6 million,[13] it expects to conduct nine active investigations next year—eight of these simultaneously—in 11 open situations while requesting only €47.94 million.[14] The court’s budget request for 2020 also indicates that a lack of resources has impeded the Office’s progress in its Burundi investigation and previously delayed the start of its second Cote d’Ivoire investigation. The Office indicates that its Georgia investigation will continue “within the available resources.”[15] The court will also need resources to support the opening of an investigation in the situation in Bangladesh/Myanmar following the pre-trial chamber’s decision on November 14.[16]

The Committee on Budget and Finance noted that “[a]ll the more, the Court needs to set priorities.”[17] The Office of the Prosecutor refers in its 2019-2021 plan to “further prioritisation” among other measures to attempt to square the expectation that it “deliver more and better results, preferably within a shorter timeframe and some expect this to be accomplished within the bounds of existing, or with even further resources,” with the reality that it “expects to face an increase in the number of situations under investigation as its ongoing preliminary examinations progress, while resources are unlikely to increase.” But there are real limits to what kinds of prioritization can take place before the court’s mandate is severely compromised.

When it comes to the selection of cases, in our view, the prosecution has actually been overly selective in bringing cases in situations under investigation.[18] The prosecutor can approach its selection of cases with greater vision, including embedding those choices in “completion strategies,” that seek to define, from as early as possible at the outset of a new situation, how the court will determine when its mandate is complete. This will provide a key framework for assessing what is needed for it to wind down its activities in a given situation, including the transfer of responsibilities to national authorities, where possible, and projecting the resources required over a multi-year period.

We welcome the Office’s indication of its plan to develop a policy on completion strategies, and recommend these be approached on a court-wide basis given implications for a range of court activities.[19] But to deliver more successfully on the court’s mandate, and to secure the court’s legacy and legitimacy, it is likely that the prosecution will need to bring more cases per situation, rather than fewer.When it comes to opening new investigations, it is of deep concern that the pre-trial chamber invoked the court’s limited resources as part of its rationale for denying the prosecution authorization to investigate in Afghanistan.[20]

These are only some indications of the mismatch between resources and workload. The upcoming review process and report of the group of independent experts may provide a bridge back towards a shared understanding of the court’s optimal capacity and what will be needed to build up the financial resources—alongside the political support referenced above—necessary to support full delivery on the mandate provided by the Rome Statute.

Recommendations to ICC states parties:

  • Scrutinize the Committee on Budget and Finance’s recommendations, adopt a 2020 budget for the court adequate to ensure the effective implementation of its mandate, and replenish the Working Capital and Contingency Funds.
  • Affirm, in statements to the General Debate, during budget negotiations, and at other relevant moments during the session, the importance of ensuring the court has adequate resources to cope with increased demand for accountability and call for improvements to the current budgeting process to that end, while rejecting a zero-nominal growth approach to the ICC’s budget.

Additional Human Rights Watch materials

IV.Adopting a proposed amendment to article 8

In August 2019, Switzerland deposited a proposed amendment to the Rome Statute with the UN Secretary-General. The amendment would make the intentional use of starvation of civilians as a method of warfare a war crime under the Rome Statute in the context of non-international armed conflicts under article 8. This is currently only included as a war crime in the context of international armed conflicts (article 8(2)(b)(xxv)).

Human Rights Watch supports the adoption of this amendment. Starvation of the civilian population as a method of warfare is already prohibited under customary international law in both non-international and international armed conflicts.[21]

In adopting the amendment, however, states parties should avoid confirming the understanding included when other amendments to article 8 were adopted by the Assembly in 2017.[22] Under that understanding, the court would be unable to exercise its jurisdiction over the crime when committed by a non-member state’s nationals or on its territory. The court ordinarily has jurisdiction over war crimes committed on the territory of states parties or parties accepting the court’s jurisdiction on an ad hoc basis, even when committed by the nationals of states non-parties.[23] Article 121(5), which sets out the procedure for amendments to article 8, excludes jurisdiction with respect to the nationals or territory of a state party that has not accepted an amendment. It does not provide this same exclusion for the nationals or territory of non-member states.

Recommendation to ICC states parties:

  • Adopt and work towards the prompt entry into force of the proposed amendment to Rome Statute article 8.

[1] Bureau of the Assembly of States Parties to the Rome Statute of the International Criminal Court (ASP), “Agenda and Decisions,” 5th Meeting, June 7, 2019, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP18/ICC-ASP-18-Bureau-5.pdf.pdf (accessed November 14, 2019), p. 3.

[2] Bureau of the ASP, “Agenda and Decisions,” 6th Meeting, June 14, 2019, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP18/ICC-ASP-18-Bureau-6.pdf (accessed November 14, 2019), pp. 1-2; “Agenda and Decisions,” 7th Meeting, July 17, 2019, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP18/ICC-ASP-18-Bureau-7.pdf (accessed November 14, 2019), pp. 1-2.; [Draft Working Paper] “Meeting the challenges of today for a stronger Court tomorrow; Matrix over possible areas of strengthening the Court and Rome Statute System,” October 11, 2019, on file with Human Rights Watch. 

[3]  [Draft Working Paper] “Meeting the challenges of today for a stronger Court tomorrow; Matrix over possible areas of strengthening the Court and Rome Statute System,” October 11, 2019, on file with Human Rights Watch, pp. 13-15. 

[4] Office of the Prosecutor (OTP), International Criminal Court (ICC), “Strategic Plan, 2019-2021,” July 17, 2019, https://www.icc-cpi.int/itemsDocuments/20190726-strategic-plan-eng.pdf (accessed November 14, 2019); “Registry Strategic Plan (2019-2021),” July 17, 2019, https://www.icc-cpi.int/itemsDocuments/190717-reg-strategic-plan-eng.pdf (accessed November 14, 2019); “International Criminal Court Strategic Plan (2019-2021),” July 17, 2019, https://www.icc-cpi.int/itemsDocuments/20190717-icc-strategic-plan-eng.pdf (accessed November 14, 2019).

[5] “ICC judges hold retreat, adopt guidelines on the judgment drafting process and on the timeframe for issuance of key judicial decisions,” ICC press release, ICC-CPI-20191007-PR1485, October 7, 2019, https://www.icc-cpi.int/Pages/item.aspx?name=pr1485 (accessed November 14, 2019).

[6] Open Society Justice Initiative, Raising the Bar: Improving the Nomination and Election of Judges to the International Criminal Court, October 28, 2019,  https://www.justiceinitiative.org/uploads/7627a69c-dc69-43da-a58c-c66162f1c2b0/raising-the-bar-20191028.pdf (accessed November 14, 2019), pp. 7-8, 43-49.

[7] See “Remarks to the Press of Michael R. Pompeo, Secretary of State, March 15, 2019,” https://www.state.gov/remarks-to-the-press-6/ (accessed November 14, 2019); see also “US Threatens International Criminal Court,” Human Rights Watch news release, March 15, 2019, https://www.hrw.org/news/2019/03/15/us-threatens-international-criminal-court# (accessed November 14, 2019).

[8] Marlise Simons and Megan Specia, “U.S. Revokes Visa of I.C.C. Prosecutor Pursuing Afghan War Crimes,” New York Times, April 5, 2019, https://www.nytimes.com/2019/04/05/world/europe/us-icc-prosecutor-afghanistan.html (accessed November 14, 2019).

[9] Groups of states parties issued two joint statements in September 2018 and March 2019, and the Assembly, in the first operative paragraph in their Omnibus resolution at its seventeenth session “[r]econfirm[ed] its unwavering support for the Court as an independent and impartial judicial institution, reiterate[d] its commitment to uphold and defend the principles and values enshrined in the Rome Statute and to preserve its integrity undeterred by any threats against the Court, its officials, and those cooperating with it, and renew[ed] its resolve to stand united against impunity.” See “Brazil declares support for the International Criminal Court (ICC),” BrazilGovNews, October 8, 2018, http://www.brazil.gov.br/about-brazil/news/2018/10/brazil-declares-support-for-the-international-criminal-court-icc (accessed November 14, 2019); Lichtenstein UN official Twitter, @LiechtensteinUN, “In addition to recent national statements in support of the independence of the #ICC, the following statement has been endorsed by 22 Foreign Ministers.”4:48 PM, March 29, 2019, Tweet, https://twitter.com/LiechtensteinUN/status/1111777186418167815 (accessed November 14, 2019); ASP, “Strengthening the International Criminal Court and the Assembly of States Parties,” Resolution ICC-ASP/17/Res.5, December 12, 2018, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP17/RES-5-ENG.pdf (accessed November 14, 2019), para. 1. The European Union issued a statement expressing its concern following the announcement of the visa policy in March 2019, and in June 2019, the General Assembly of the Organization of American States underscored its determination to “preserve [] [the Rome Statute’s] integrity by showing resilience to the threats against the Court, its officers, and others working with it.” See European Union External Action, “Statement by the Spokesperson on the International Criminal Court,” March 15, 2019, https://eeas.europa.eu/headquarters/headquarters-homepage/59733/statement-spokesperson-international-criminal-court_en (accessed November 14, 2019); General Assembly of Organization of American States, Resolution on International Law, AG/RES. 2930 (XLIX-O/19), adopted on June 27, 2019, in “Declarations and Resolutions Adopted by the General Assembly,” Forty-Ninth Regular Session, June 26-28, 2019, Medellín, Colombia, AG/doc.5682/19 rev. 1, November 4, 2019, p. 24,http://www.oas.org/consejo/GENERAL%20ASSEMBLY/Resoluciones-Declaraciones.asp (accessed November 14, 2019).

[10] In turning down the prosecutor’s request for authorization to investigate, the judges found that given what they considered to be limited prospects for success due to cooperation challenges, an investigation would not be in the “interests of justice.” See Situation in the Islamic Republic of Afghanistan, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, No. ICC-02/17, April 12, 2019, https://www.icc-cpi.int/CourtRecords/CR2019_02068.PDF (accessed November 14, 2019), para. 96. The judges speculated that “changes within the relevant political landscape both in Afghanistan and in key states” would limit cooperation in an investigation. Ibid., para. 94. That was most likely a nod to Afghanistan peace talks and the Trump administration’s attacks on the ICC. 

[11] “U.S. Policy on the International Criminal Court Remains Unchanged,” U.S. Department of State press statement by Michael R. Pompeo, Secretary of State, October 9, 2019, https://www.state.gov/u-s-policy-on-the-international-criminal-court-remains-unchanged/ (accessed November 14, 2019).

[12] ASP, “Report of the Committee on Budget and Finance on the work of its thirty-third session,” ICC-ASP/18/15 , November 13, 2019, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP18/ICC-ASP-18-15-ENG.pdf  (accessed November 14, 2019), paras. 19, 274.

[13] ASP, “Report of the Court on the Basic Size of the Office of the Prosecutor,” ICC-ASP/14/21, September 17, 2015, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP14/ICC-ASP-14-21-ENG.pdf (accessed November 14, 2019), paras. 7, 14.

[14] ASP, “Proposed Programme Budget for 2020 of the International Criminal Court,” ICC-ASP/18/10, July 25, 2019, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP18/ICC-ASP-18-10-ENG.pdf (accessed November 14, 2019), paras. 110, 159. 

[15] Ibid., paras. 113, 121, and 126.

[16] Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People's Republic of Bangladesh/Republic of the Union of Myanmar, No. ICC-01/19, November 14, 2019, https://www.icc-cpi.int/CourtRecords/CR2019_06955.PDF (accessed November 14, 2019).

[17] ASP, “Report of the Committee on Budget and Finance on the work of its thirty-third session,” ICC-ASP/18/15, November 13, 2019, para. 29.

[18] See Human Rights Watch, Unfinished Business: Closing Gaps in the Selection of ICC Cases, September 2011, https://www.hrw.org/sites/default/files/reports/icc0911webwcover.pdf (accessed November 14, 2019); Human Rights Watch Comments on the ICC Office of the Prosecutor Draft Policy Paper on Case Selection and Prioritisation, May 3, 2016, https://www.hrw.org/news/2016/05/03/human-rights-watch-comments-icc-office-prosecutor-draft-policy-paper-case-selection (accessed November 14, 2019).

[19] OTP, “Strategic Plan, 2019-2021,” July 17, 2019, para. 23; see also Elizabeth Evenson and Alison Smith, “Completion, Legacy, and Complementarity at the ICC”, in Carsten Stahn (ed.), The Law and Practice of the International Criminal Court, Oxford University Press, Oxford, 2015, http://www.npwj.org/sites/default/files/ressources/ASmith_OxfordUniversityPress2015.pdf (accessed November 14, 2019), pp. 1259-1276.

[20]  See Situation in the Islamic Republic of Afghanistan, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, No. ICC-02/17, April 12, 2019, para. 95.

[21] International Committee of the Red Cross, “Rule 53. Starvation as a Method of Warfare,” https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule53 (accessed November 14, 2019).

[22] See “Resolution on amendments to article 8 of the Rome Statute of the International Criminal Court,” Resolution ICC-ASP/16/Res.5, December 14, 2017, https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ASP16/ICC-ASP-16-Res4-ENG.pdf (accessed November 14, 2019), preambular para. 2 (“confirming [the Assembly’s] understanding that in respect to this amendment the same principle applies in respect of a State party which has not accepted this amendment applies also in respect of States that are not parties to the Statute.”).

[23] Rome Statute of the International Criminal Court (Rome Statute), A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, article 12.

Posted: January 1, 1970, 12:00 am

Rohingya refugees gather in an open field at Kutupalong refugee camp in Ukhia, Cox's Bazar, Bangladesh to commemorate the two-year anniversary of the Myanmar military’s ethnic cleansing campaign in Rakhine State on August 25, 2019. 

© 2019 K M Asad/LightRocket via Getty Images

(The Hague) – The Gambia’s case against Myanmar at the International Court of Justice (ICJ) for violating the Genocide Convention, filed on November 11, 2019, will bring the first judicial scrutiny of Myanmar’s campaign of murder, rape, arson, and other atrocities against Rohingya Muslims, 10 nongovernmental organizations said.

States that are party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide agreed that genocide “whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish” and, by extension, have an obligation not to commit it. The convention permits member states to bring a dispute before the ICJ alleging another state’s breach of the convention, and states can seek provisional measures to stop continuing violations. Myanmar became a party to the Genocide Convention in 1956.

“The Gambia’s legal action triggers a judicial process before the world’s highest court that could determine that Myanmar’s atrocities against the Rohingya violate the Genocide Convention,” said Param-Preet Singh, associate international justice director at Human Rights Watch.  “The court’s prompt adoption of provisional measures could help stop the worst ongoing abuses against the Rohingya in Myanmar.”

The nongovernmental organizations supporting the initiative are No Peace Without Justice, the Association pour la Lutte Contre l’Impunité et pour la Justice Transitionnelle, the European Center for Constitutional and Human Rights, the International Federation for Human Rights (FIDH), Global Centre for the Responsibility to Protect, the Global Justice Center, Human Rights Watch, the International Bar Association Human Rights Institute, Parliamentarians for Global Action, and the Women’s Initiatives for Gender Justice.

In its first Genocide Convention case, the ICJ imposed provisional measures against Serbia in 1993 and eventually found that Serbia had violated its duty to prevent and punish genocide in Bosnia-Herzegovina.

Canada, Bangladesh, Nigeria, Turkey, and France have asserted that Myanmar committed genocide against the Rohingya. The Organization of Islamic Cooperation (OIC) has encouraged its 57 members to bring Myanmar before the court. Malaysia’s prime minister has also alleged that Myanmar committed genocide against the Rohingya and called for efforts to bring Myanmar before the court.

“As a country recently emerging from decades of brutal dictatorship, The Gambia’s leadership on the Rohingya genocide is especially striking and welcome,” said Alison Smith, international justice director at No Peace Without Justice. “Other members of the Genocide Convention should follow The Gambia’s lead and lend their clear and unwavering support.”

In September 2019, the United Nations-backed Independent International Fact-Finding Mission on Myanmar concluded that “Myanmar is failing in its obligation to prevent genocide, to investigate genocide and to enact effective legislation criminalizing and punishing genocide.” The fact-finding mission highlighted “the enormity and nature of the sexual violence perpetrated against women and girls” during Myanmar’s military campaign as one of seven indicators of the state’s intent to destroy the Rohingya people.

“The Gambia’s proceedings before the ICJ offer countless survivors of sexual violence and other victims some hope that Myanmar could legally be held to account for its ruthless campaign against the Rohingya,” said Melinda Reed, executive director at Women’s Initiatives for Gender Justice.

Legal actions addressing individual criminal responsibility are also underway at the international level. The fact-finding mission has called for the investigation and prosecution of Myanmar’s military leaders for genocide, crimes against humanity, and war crimes in Rakhine State in Myanmar, the state where most Rohingya lived.

The UN Human Rights Council has established an Independent Investigative Mechanism for Myanmar, which is mandated to collect evidence of the most serious international crimes and prepare files for criminal prosecution. The International Criminal Court (ICC) prosecutor, Fatou Bensouda, has sought to open an investigation for the crime against humanity of deportation and possibly other offenses, but a broader investigation would need a referral by the UN Security Council.

The Myanmar government has failed to prosecute or punish perpetrators of human rights abuses. The current domestic commission of enquiry established by the government follows eight failed commissions and lacks credibility, and its chair has stated that it will not hold those responsible for abuses to account

“The Gambia’s case before the ICJ could pressure Myanmar to reverse its course of violence and live up to its obligation under the Genocide Convention to punish those responsible,” said Andrea Giorgetta, Asia director at the International Federation for Human Rights.

On November 11, the 10 organizations convened a meeting in The Hague with Abubacarr Tambadou, The Gambia’s attorney general and justice minister, and members of his legal team; several representatives of the Rohingya community; and others who have supported this initiative. The meeting provided an update on the initiative, addressed the implications of state responsibility under the Genocide Convention for deterring further crimes and providing redress the victims, and discussed the role that civil society groups and other stakeholders could play in such an inter-state dispute.

Posted: January 1, 1970, 12:00 am

How long had you been investigating Ntaganda’s abuses?

I started documenting his abuses when I first moved to Goma in eastern Democratic Republic of Congo in 2008. Bosco Ntaganda was a member of the Rwandan-backed CNDP (Congrès national pour la défense du peuple – National Congress for the Defense of the People) rebel group, which committed countless atrocities against civilians. In late 2008, in the town of Kiwanja, north of Goma, Ntaganda orchestrated an attack where 150 people were killed over two days. For the next five years, I spent a lot of time covering his abuses, speaking to survivors who told harrowing tales of attacks they had survived. As part of a deal that was negotiated with the Congolese and Rwandan governments, Ntaganda was integrated into the Congolese army and became a general, commanding military operations in eastern Congo.

Later, after he created the M23, another notorious rebel group backed by Rwanda, he led attacks on many villages, summarily executing hundreds of people, and was accused of rape, torture, and forced recruitment of children to serve as soldiers in the group. We found that the M23 received support from Rwanda and we presented these findings to Rwanda’s donors. Some donors then suspended their assistance to Rwanda. This pressure was instrumental in Ntaganda’s surrender to the United States embassy in Kigali, Rwanda’s capital, in 2013.

When Ntaganda rose in power, did you ever feel justice would never be served?

It was particularly tough when he became a general in the army. Many believed he was untouchable. It seemed he had no fear of being arrested – even with the International Criminal Court warrant out against him. When he lived in Goma, he lived quite close to me and I would see him drive by and around the town, going about his business and even playing tennis. At that time his troops still targeted rival groups, human rights defenders, and others who spoke out against him. They assassinated and abducted people with impunity.

Still, we and courageous Congolese human rights activists kept insisting that he be held to account. Diplomats and United Nations officials would wave us away, saying that he could not be arrested, or that he was too protected by his Rwandan backers and Congolese friends. But we did not stop.

When his own rebel group split, and his backers in Rwanda apparently decided to stop supporting him, Ntaganda knew his life was in danger – he had many enemies. He surrendered himself to the US embassy in Rwanda and asked to be transferred to the ICC.

Finally, he was brought to The Hague. It was inspiring for me to see Anneke van Woudenberg, former deputy Africa director at Human Rights Watch who had documented his earlier abuses in northeastern Congo’s Ituri province, testifying against him during the trial. She gave a detailed account based on the work we had done over many years, and all this documentation had finally led to something.

What does this conviction mean for the Democratic Republic of Congo?

It sends a powerful message that those who commit serious crimes against the people, no matter their positions, can be held to account. I hope it will play a role in deterring others who are still committing abuses against civilians in Congo and elsewhere. This might make security forces think twice before commanding forces to violate people’s rights, even during conflict.

Since his conviction, I’ve spoken to victims of Ntaganda’s crimes. Many of them have been forced into exile since they were threatened with more suffering if they dared to speak up. Although his conviction does not erase their pain, they are encouraged that he is being held to account.

The conviction comes as some 130 armed groups remain active in eastern Congo, and many continue to commit serious crimes. Abusive leaders can see what has come of Ntaganda and learn that they are not above the law.

His conviction however only covers his crimes in Ituri province in 2002 and 2003. Activists in Congo seek justice for all his crimes, including the numerous attacks he led in the provinces of North and South Kivu.

Video

Video: Verdict on Former Congolese Warlord

The International Criminal Court’s (ICC) conviction of the Congolese rebel leader Bosco Ntaganda sends a strong message that justice may await those responsible for grave crimes in the Democratic Republic of Congo. 

Now that Ntaganda has been convicted and sentenced, what happens next?

Ntaganda’s conviction is historic. He is the first person convicted at the ICC for sexual slavery, as well as the first person convicted at the ICC for crimes of sexual violence committed against his own troops. This sends an important message.

Both Ntaganda and the prosecutor have appealed the verdict. Now he can appeal the sentence if he believes it too harsh for the crimes for which he was found guilty. Appeals proceedings will likely last several months.

The court is also discussing reparations for Ntaganda’s victims. This could include restitution and compensation to victims and their families, and rehabilitation. At this stage, the court is taking steps to facilitate and expedite the reparations proceedings. However, a reparation order can only be carried out once a conviction has been confirmed on appeal.

We hope Ntaganda’s conviction will carry a message to other warlords and serious human rights abusers that they understand they are not above the law, and even years after their crimes, they can be held to account.

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

Relief services search for survivors after an airstrike on a private residence by an armed group known as the Libyan National Army killed three children on October 14, 2019 in Tripoli, Libya.

 

© 2019 Tripoli Ambulance and Emergency Services

(Beirut) – An airstrike by the Libyan National Army (LNA), on a home in a residential area of Tripoli on October 14, 2019 that killed three girls and wounded their mother and another sister, is an apparent violation of the laws of war, Human Rights Watch said today. This attack on civilians is one of many that require an impartial and independent investigation to attribute responsibility and hold those responsible to account.

Under the command of General Khalifa Hiftar, the armed group LNA and affiliated forces have conducted a series of air strikes that resulted in civilian casualties. They began a military campaign in April to conquer the capital, Tripoli, from forces affiliated with the Tripoli-based and internationally recognized Government of National Accord (GNA).

“General Hiftar and his forces have repeatedly shown their disregard for civilians’ lives with disproportionate or indiscriminate attacks against civilians and civilian structures,” said Eric Goldstein, deputy Middle East director at Human Rights Watch. “There is a dire need for an independent UN investigation to attribute responsibility for these airstrikes and ensure justice for war crimes and compensation for the victims’ families.”

In the October 14 airstrike, the LNA destroyed a home in the al-Fernaj residential neighborhood of Tripoli, and killed three sisters, ages 4, 5, and 7 and injured another sister, age 3, and the girls’ mother, said a statement by the GNA-aligned Tripoli military operations coalition Volcano of Rage, which is fighting the LNA The statement identified the casualties by name. An LNA spokesman, Ahmed al-Mismari, said that the airstrike targeted a “terrorist operations room” and denied targeting civilians. 

Destroyed private residence after an airstrike on a private residence by an armed group known as the Libyan National Army killed three children on October 14, 2019 in Tripoli, Libya.

 

© 2019 Tripoli Ambulance and Emergency Services

The LNA that is supported by the Interim Government in eastern Libya has consistently denied causing civilian deaths despite mounting evidence of their responsibility.

The UN has said that fighting between the two groups in and around Tripoli has, since April, killed at least 100 civilians and displaced 120,000.

The GNA in a statement blamed the LNA for the attack, as did the United Nations Mission in Libya, while the United States embassy attributed it to the “forces laying siege” to Tripoli.

Human Rights Watch spoke by phone with Husam Alter, a Tripoli resident who witnessed the airstrike and who was among the first responders to the incident, and with Osama Ali, the spokesman for the Tripoli Ambulance and Emergency services. Alter, who was on private business in the area, said he noticed at around noon a fighter jet circling for several minutes above the area, then dropping a bomb on a private house in a busy residential area. He said he ran toward the home and saw a large plume of smoke rising.

“As I arrived at the house, which consisted of two floors and a small annex, I saw that it had been completely destroyed,” he said. People had just started to clamber onto the debris to check for survivors. The father was outside with one of the girls, who was covered in gray dust, but he left quickly to take her to hospital. One of the neighbors said there were three more children in the house and other people and I started to remove the stones and debris with our hands until the ambulance and security services arrived.”

He said he left when relief services with a digger to came to search for the survivors as he could no longer see because of dust in his eyes.

Ali said that the Ambulance and Emergency Services recovered the bodies of the three sisters from the debris. He said that the family had been renting the house temporarily after being displaced from their own home in the Khila area in the southern suburbs of Tripoli due to the ongoing fighting.

Both men said that a fighter jet struck the house. Photographs and videos of the scene that Human Rights Watch reviewed showed damage consistent with an air-delivered munition.

The targeted house was about 20 meters from a compound belonging to Military Intelligence, Alter and Ali said. Some local sources said the compound, which seemed not to have been damaged, was not in use.

Mustafa al-Majae, spokesperson for the Tripoli military operations command, told Human Rights Watch that the compound adjacent to the house that was struck had been an administrative building for the military command, which owns it. He said that the compound was currently not in use and had no role in the military counteroffensive against the LNA. The LNA has produced no evidence showing that it was a military target justifying it being targeted despite being in a civilian neighborhood.

Both Alter and Ali said they did not see any military equipment in or around the house that was struck. Photos and videos of the attack reviewed by Human Rights Watch appear consistent with these statements.

Under the laws of war, civilians and civilian objects may never be the object of attacks. Warring parties are required to take all feasible precautions to minimize harm to civilians and civilian objects and to refrain from attacks that would disproportionately harm the civilian population or fail to discriminate between combatants and civilians.

The laws of war also prohibit disproportionate attacks, attacks that cause loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.

While Human Rights Watch could not confirm the status of the compound next to the targeted house, the GNA is obligated as a matter of principle to ensure that no civilians are adjacent to operational military facilities, given the heightened risk of their being in the line of fire.

Since April 4, Human Rights Watch has documented other LNA strikes that resulted in killing or injuring civilians and destroying homes and civilian structures with apparently no measures taken against those responsible and no compensation or payments to civilians. These attacks included a strike against a migrant detention center in Tajoura in July that killed 46 civilians

On October 6, the LNA attacked the Janzour Equestrian Club in the Janzour area of Tripoli, injuring six children and killing several horses. UN staff conducted an assessment to identify the targeted site and the nature of the attack and, blaming the LNA, found that “a fighter jet had dropped four unguided bombs on the Equestrian Club, a civilian facility, and that neither military assets nor military infrastructure were observed at the targeted site.”

Fighters affiliated with the LNA have a well-documented record of summarily executing civilians and fighters; forcibly displacing, torturing, and disappearing people; and carrying out indiscriminate or disproportionate attacks that have harmed civilians. Armed groups affiliated with the GNA also have a record of abuses including summary killings of captured fighters, arbitrary detention, forced displacement, torture, and disappearances.

Due to the partial collapse of the domestic criminal justice system, Libyan authorities have failed to investigate or prosecute those responsible for grave abuses. The prosecutor of the International Criminal Court (ICC) has a mandate to investigate war crimes, crimes against humanity, and genocide in Libya, since 2011. The court has recently issued two arrest warrants for Mahmoud el-Werfalli, a commander linked to the LNA, for the war crime of murder related to incidents between June 2016 and January 2018.

Saif al-Islam Gaddafi also continued to be subject to an ICC arrest warrant for his alleged role in attacks on civilians during the country’s 2011 uprising. The ICC also issued an arrest warrant for Al-Tuhamy Mohamed Khaled, a former official in the Gaddafi government, for crimes against humanity and war crimes committed in Libya between February and August 2011. Their whereabouts remain unknown.

The United Nations has imposed a sanctions regime and arms embargo on Libya but has not effectively used them to punish those who commit gross human rights violations.

Given the current state of impunity in Libya, there is a dire need for an international inquiry, such as by an independent commission of inquiry or similar entity, with a mandate to impartially document abuses, identify those responsible for violations, and publicly report on the human rights situation in Libya, Human Rights Watch said. An upcoming opportunity to establish such an investigation will be during the March 2020 session of the UN Human Rights Council. Ghassan Salameh, the UN special representative to Libya; the Office of the High Commission for Human Rights; and several European governments have already endorsed such a move.

“There needs to be a much stronger focus on justice and accountability in Libya to deter further crimes,” Goldstein said. “As the attacks continue, civilians – and in this case small children – pay with their lives.”

Posted: January 1, 1970, 12:00 am