Rohingya refugees walk through rice fields after crossing the border from Myanmar into Palang Khali, Bangladesh, October 19, 2017.

© 2017 Jorge Silva/Reuters
(Brussels) – The International Court of Justice (ICJ) order on January 23, 2020, directing Myanmar to prevent all genocidal acts against Rohingya Muslims is crucial for protecting the remaining Rohingya in Rakhine State, Human Rights Watch said today. The court unanimously adopted “provisional measures” that require Myanmar to prevent genocide and take steps to preserve evidence.

Myanmar’s military committed extensive atrocities against the Rohingya, including murder, rape, and arson, that peaked during its late 2017 campaign of ethnic cleansing, forcing more than 740,000 Rohingya to flee to Bangladesh. In September 2019, the United Nations-backed International Independent Fact-Finding Mission on Myanmar found that the 600,000 Rohingya remaining in Myanmar “may face a greater threat of genocide than ever.” 

“The ICJ order to Myanmar to take concrete steps to prevent the genocide of the Rohingya is a landmark step to stop further atrocities against one of the world’s most persecuted people,” said Param-Preet Singh, associate international justice director at Human Rights Watch. “Concerned governments and UN bodies should now weigh in to ensure that the order is enforced as the genocide case moves forward.”

The order follows Gambia’s November 11, 2019 application to the court alleging that abuses by Myanmar’s military in Rakhine State against the Rohingya violate the Convention on the Prevention and Punishment of the Crime of Genocide and urgently seeking provisional measures. The ICJ held hearings on Gambia’s provisional measures request in December.

The ICJ provisional measures order is legally binding on the parties. In November, Myanmar explicitly recognized the ICJ’s authority and in December, Aung San Suu Kyi, representing Myanmar before the ICJ in her capacity as foreign minister, acknowledged the court’s role as a “vital refuge of international justice.”

The court unanimously ordered Myanmar to prevent all acts under article 2 of the Genocide Convention, ensure that its military does not commit genocide, and take effective measures to preserve evidence related to the underlying genocide case. The court has also ordered Myanmar to report on its implementation of the order in four months, and then every six months afterwards.

The order does not prejudge the question of the court’s jurisdiction to deal with the merits of the case, the case’s admissibility before the court, or the merits of Gambia’s allegation that Myanmar has violated provisions of the Genocide Convention. A case before the ICJ can take years to reach a resolution. 

Under article 41(2) of the ICJ Statute, the court’s provisional measures orders are automatically sent to the UN Security Council. Such an order will increase pressure on the council to take concrete action in Myanmar, including through a binding resolution to address some of the indicators of genocidal intent outlined in the comprehensive 2018 report of the international fact-finding mission.

For example, the Security Council could pass a resolution directing Myanmar to lift restrictions on Rohingya’s freedom of movement, eliminate unnecessary restrictions on humanitarian access to Rakhine State, repeal discriminatory laws, and ban practices that limit Rohingya access to education, health care, and livelihoods. Thus far, the Security Council has not taken significant action on Myanmar, in part because of Russia and China’s apparent willingness to use their vetoes to shield Myanmar’s government and military.

“The ICJ order brings increased scrutiny of Myanmar’s horrific brutality against the Rohingya and raises the political cost of the UN Security Council’s weak response to the crisis so far,” Singh said. “China and Russia should stop blocking the Security Council from taking action to protect the Rohingya.”

Even with a deadlocked Security Council, UN Secretary-General Antonio Guterres could bring the matter of Myanmar before the council under article 99 of the UN Charter. On September 2, 2017, Guterres wrote a letter to the Security Council president urging the council to “press for restraint and calm to avoid a humanitarian catastrophe,’’ and for “full respect for human rights and international humanitarian law, and the continued presence and safety of the United Nations partners to provide humanitarian assistance to those in need without disruption.”

Other UN bodies should take steps to reinforce the order, Human Rights Watch said. The UN Human Rights Council and the UN General Assembly could pass resolutions calling on Myanmar to comply with its terms. This could spur other countries to take concrete action in their bilateral relations with Myanmar.

In filing the genocide case, Gambia has the backing of the 57 members of the Organisation of Islamic Cooperation. On December 9, 2019, the governments of Canada and the Netherlands, both parties to the Genocide Convention, announced that they considered it “their obligation to support the Gambia before the ICJ, as it should concern all of humanity.” On January 9, 2020, the British government welcomed Gambia’s case against Myanmar. Other parties to the convention should press Myanmar to comply with the court’s order, Human Rights Watch said. If Myanmar fails to act, Gambia could raise Myanmar’s non-compliance with the Security Council under article 94 of the UN charter.

“The growing global support for Gambia’s case raises the stakes for Myanmar to engage in the ICJ process in a meaningful way and change its approach to the Rohingya,” Singh said. “The Myanmar government cannot hide behind its powerful friends or the banner of sovereignty to escape its responsibilities under the Genocide Convention.”

Posted: January 1, 1970, 12:00 am

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

Central Intelligence Agency (CIA) Director Mike Pompeo testifies before the Senate Intelligence Committee on Capitol Hill in Washington, U.S., February 13, 2018.

© 2018 Reuters
 
United States Secretary of State Michael Pompeo once again threatened the International Criminal Court (ICC), this time saying the Trump administration will “exact consequences” if the ICC “continues down its current course” – that is, if the court moves forward with an investigation of possible war crimes committed on Palestinian territory.

A decision that could pave the way for an investigation of serious crimes by Israelis and Palestinians is pending before the ICC’s judges, who have been asked by the ICC prosecutor to confirm the court’s jurisdiction there. Palestine has ratified the court’s treaty, while Israel has not.

Pompeo’s May 15 statement termed the ICC a “political body” when it is instead a global court of last resort for serious international crimes. In March, Pompeo threatened to take action against ICC staff and their families in response to the opening of an investigation into crimes committed in and around Afghanistan. That probe could include scrutiny of serious abuses by Afghan nationals and could also touch on serious abuses by US military and Central Intelligence Agency (CIA) personnel committed on Afghan soil or in other ICC member countries. These abuses have not been addressed by any meaningful action in US courts. The US, which is not an ICC member, earlier revoked the ICC prosecutor’s visa and threatened economic sanctions. Pompeo may have been bolstered by last week’s letters from members of Congress calling on him to work to see a stop to these ICC investigations.  

Pompeo’s rhetoric against the court reflects the Trump administration’s broader hostility to the international legal framework. The ICC’s 123 member countries should challenge Pompeo’s toxic narrative on the court. Israeli and Palestinian authorities have for years failed to credibly investigate alleged war crimes and hold those responsible to account. If ICC judges confirm the court’s mandate there, it could provide an opening to check this impunity. The member countries should make clear their support for the ICC’s independence and its mandate to act impartially to deliver accountability. Victims should know that their pursuit of justice will be met by a commitment to the rule-of-law. 

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

Félicien Kabuga on his US Department of State wanted poster.

Photo source: US Department of State

(Paris) – The arrest of Félicien Kabuga, one of the alleged masterminds behind the Rwandan genocide, in France on May 16, 2020 brings victims and survivors one step closer to justice 26 years later. Kabuga is charged by an international war crimes court with genocide and related crimes during the 1994 genocide, and was living in France under a false identity at the time of his arrest.

“Félicien Kabuga’s arrest is a major victory for victims and survivors of the genocide in Rwanda who have waited more than two decades to see this leading figure face justice,” said Mausi Segun, Africa director at Human Rights Watch. “Those implicated in brutal atrocities should take note that the law can catch up with anyone, even those who seem untouchable.”

Kabuga had evaded arrest since 1997, when he was first indicted by the International Criminal Tribunal for Rwanda (ICTR). Kabuga is expected to be tried by the International Residual Mechanism for Criminal Tribunals (IRMCT), which was established to handle the outstanding functions of the ICTR and the International Criminal Tribunal for the Former Yugoslavia once those tribunals closed. The mechanism has branches in Arusha, Tanzania, and The Hague, the Netherlands.

Kabuga was close to Rwandan President Juvénal Habyarimana, who died when a plane carrying him and Burundian President Cyprien Ntaryamira was shot down over the Rwandan capital, Kigali, on April 6, 1994. The crash triggered the start of three months of ethnic killings across Rwanda on an unprecedented scale. He was one of the chief financiers of the Radio Télévision Libre des Mille Collines (RTLM), which began broadcasting in April 1993.

Between April and July 1994, Hutu political and military extremists orchestrated the killing of approximately three quarters of Rwanda’s Tutsi population, leaving more than half a million people dead. Many Hutu who attempted to hide or defend Tutsi and those who opposed the genocide were also killed.

In mid-July 1994, the Rwandan Patriotic Front (RPF), a predominantly Tutsi rebel group based in Uganda that had been fighting to overthrow the Rwandan government since 1990, took over the country. Its troops killed thousands of predominantly Hutu civilians, though the scale and nature of these killings were not comparable to the genocide.

Human Rights Watch documented the genocide and the RPF’s 1994 crimes in detail. Alison Des Forges, senior adviser to the Human Rights Watch Africa division for almost two decades and one of the world’s foremost experts on Rwanda, published the authoritative account of the genocide, “Leave None to Tell the Story.”

“Radio RTLM, which had incited to genocide before April 6, communicated the orders for implementing the killings after that date,” Des Forges said in her account. “It instructed people to erect barriers and carry out searches; it named persons to be targeted and pointed out areas which should be attacked…. So important was this means of communication that officials admonished citizens to keep listening to the radio for instructions from the interim government.”

With Human Rights Watch, Des Forges also documented how Kabuga was implicated in ordering the thousands of machetes imported in 1993 and early 1994 and how he supported the military training for the Interhamwe youth militia associated to Habyarimana’s party, the National Revolutionary Movement for Development (Mouvement révolutionnaire national pour le développement, MRND).

The United Nations Security Council created the ICTR, based in Arusha, in 1994 in response to the genocide. The tribunal indicted 93 people, convicted and sentenced 61, and acquitted 14. It was expected to try mostly high-level suspects and those who played a leading role in the genocide. It tried and convicted several prominent figures for crimes committed during the genocide, including the former prime minister, Jean Kambanda, the former army chief of staff, Gen. Augustin Bizimungu, and the former Defense Ministry chief of staff, Col. Théoneste Bagosora.

The tribunal achieved important milestones and established jurisprudence in international criminal law. It was the first international tribunal to convict a woman of genocide crimes, including rape, and the first international court since the 1946 Nuremberg tribunal to convict media executives for crimes of genocide.

However, the tribunal had inherent limitations and attracted criticism. The tribunal handled a relatively small number of cases and had high operating costs. The trials were often lengthy and slowed down by bureaucratic processes. Some Rwandans have criticized the tribunal, citing its lack of reparation for victims and its location outside Rwanda, and complained that genocide convicts were allowed to speak to the media.

The tribunal’s unwillingness to prosecute war crimes and crimes against humanity committed by the RPF in 1994 was a significant failing of the tribunal, Human Rights Watch said.

The IRMCT, created in 2010, is tasked with addressing the remaining tribunal-indicted fugitives, seven of whom remain at large. It has retained jurisdiction over Kabuga and Augustin Bizimana and Protais Mpiranya, both fugitives. Five others are to be tried by the Rwandan authorities. 

The Rwandan justice system also tried a large number of genocide suspects, both in conventional domestic courts and in local, community-based gacaca courts. The standards of these trials have varied enormously and political interference and pressure resulted in some unfair trials. Other cases have shown greater respect for due process. The gacaca trials ended in 2012.

Court officials at the residual mechanism highlighted the cooperation by France, where Kabuga was living covertly with family at the time of his arrest, and a number of other governments to enable Kabuga’s arrest after so many years. The French justice ministry said in a statement that Kabuga “had with impunity stayed in Germany, Belgium, Congo-Kinshasa [Democratic Republic of Congo], Kenya, or Switzerland.”

“Arresting suspects can be one of the most difficult challenges for international courts to bring justice for atrocity crimes as they lack their own police forces,” Segun said. “Questions remain over how Kabuga was able to evade justice for over two decades, but cooperation between governments has made it possible for victims and survivors at last to see him face trial and should be replicated to secure the surrender of more international war crimes fugitives.”

Video

Confronting Evil: Genocide in Rwanda

Alison Des Forges was Human Rights Watch’s senior advisor in the Africa Division and one of the world’s foremost experts on Rwanda. In the period leading up to the genocide, she worked tirelessly to alert world powers to the impending crisis in Rwanda. Her efforts did not stop when the genocide ended. She continued painstakingly gathering information on these horrific crimes, which she compiled into what has become one of the main reference books on the Rwandan genocide: “Leave none to tell the story: Genocide in Rwanda”, published in 1999. Alison Des Forges campaigned vigorously for justice for the genocide until her sudden death in a plane crash in the US on February 12, 2009. She also documented human rights abuses by the new government of Rwanda after the genocide and advocated for accountability for all abuses, past and present.

Posted: January 1, 1970, 12:00 am

Judges in Germany will begin hearing evidence on April 23, 2020 in the first trial about torture by state agents during Syria’s nearly decade-long brutal armed conflict. Illustration © 2017 Brian Stauffer for Human Rights Watch

(Berlin) – The start of a landmark trial in Germany of two people alleged to be former Syrian intelligence officials on crimes against humanity charges is an important chance for victims to see justice done, Human Rights Watch said today. Judges in the city of Koblenz will begin hearing evidence on April 23, 2020 in the first trial about torture by state agents during Syria’s nearly decade-long brutal armed conflict.

“This trial is a watershed moment for victims determined to see justice for the crimes they suffered in Syria,” said Balkees Jarrah, associate international justice director at Human Rights Watch. “Today’s proceedings should serve as an important reminder that more is needed to ensure accountability for the conflict’s horrific atrocities.”

The two accused in the case are Anwar R. and Eyad A., an alleged former intelligence officer and a lower ranking subordinate at Syria’s General Intelligence Directorate, one of the country’s four main intelligence agencies commonly referred to collectively as the mukhabarat. The full names of the accused have been withheld by German officials in line with national privacy laws. Their trial in Germany is possible because the country’s laws recognize universal jurisdiction over certain of the most serious crimes under international law, allowing for the investigation and prosecution of these crimes no matter where they were committed and regardless of the nationality of the suspects or victims.

Universal jurisdiction cases are an increasingly important part of international efforts to hold those responsible for atrocities accountable, provide justice to victims who have nowhere else to turn, deter future crimes, and help ensure that countries do not become safe havens for human rights abusers, Human Rights Watch said.

Both men were arrested in Germany in February 2019 as part of a joint investigation with French judicial officials. The investigation that led to the arrests was also a result of a series of criminal complaints filed by the German human rights organization, the European Center for Constitutional and Human Rights (ECCHR), together with Syrian lawyers, activists, torture survivors, and their relatives. Testimony from witnesses supported by ECCHR contributed to arrest warrants for Anwar R. and Eyad A. Other groups also provided the authorities with relevant material for the investigation. 

Video

"If the Dead Could Speak"

"If the Dead Could Speak" reveals some of the human stories behind the more than 28,000 photos of deaths in government custody that were smuggled out of Syria and first came to public attention in January 2014.

Anwar R. is the most senior alleged former Syrian government official to be put on trial in Europe for serious crimes in Syria. German prosecutors accuse him of overseeing the torture of detainees between April 2011 and September 2012 in his alleged capacity as head of the investigations section at the General Intelligence Directorate’s al-Khatib detention facility in Damascus, also known as “Branch 251.” Prosecutors allege that his subordinates tortured at least 4,000 people during interrogations at the facility, including with beatings and electric shocks. Anwar R. has also been charged with 58 counts of murder, as well as rape and aggravated sexual assault.

The second suspect, Eyad A., an alleged lower-ranking official at the same intelligence agency, is charged with aiding and abetting crimes against humanity. Prosecutors allege that he detained protesters in 2011 and delivered them to the al-Khatib detention facility, where they were later tortured.

Both defendants are believed to have defected in 2012. German authorities said that Anwar R. and Eyad A. entered Germany as asylum seekers in July 2014 and April 2018, respectively. If convicted, Anwar R. could face up to life in prison, while Eyad A. faces between 3 and 15 years in prison.

Germany’s laws recognize universal jurisdiction for war crimes, crimes against humanity, and genocide. Due to the large numbers of Syrian asylum seekers and refugees in Germany, previously unavailable victims, witnesses, material evidence, and even some suspects are now within the reach of the judicial authorities there. Criminal justice authorities in several other European countries, including Sweden and France, are also investigating people alleged to have committed serious crimes in Syria.

The case in Koblenz should serve as a stark warning to those who are currently committing abuses in Syria that no one is beyond the reach of justice, Human Rights Watch said. Tens of thousands of people have been detained or disappeared in Syria since 2011, the vast majority by government forces using an extensive network of detention facilities throughout the country. Thousands have died in Syrian government custody from torture and horrific detention conditions.

The Syrian government continues to detain and mistreat people in areas under its control. In areas recently retaken from the anti-government groups, Syrian security forces have arrested hundreds of activists, former opposition leaders, and their family members, although they had all signed reconciliation agreements with the authorities guaranteeing that they would not be arrested.

Comprehensive justice for these and other unchecked atrocities in Syria has been elusive. In 2014, Russia and China blocked efforts at the United Nations Security Council to give the International Criminal Court a mandate over serious crimes there. Two years later, UN member countries responded by setting up a new international mechanism, to gather, analyze, and secure evidence of serious crimes for future prosecutions. The mechanism’s work, along with other documentation efforts, will be critical to future domestic accountability processes in Germany and elsewhere. Governments committed to justice in Syria should support and bolster these efforts, Human Rights Watch said.

Beyond crimes committed in Syria, over the past two decades, the national courts of an increasing number of countries have pursued cases involving war crimes, crimes against humanity, genocide, torture, enforced disappearances, and extrajudicial executions committed abroad. Human Rights Watch reporting in various countries shows that the fair and effective exercise of universal jurisdiction is achievable where there is the right combination of appropriate laws; adequate resources; institutional commitment; such as dedicated war crimes units; and political will.

“With other avenues for justice blocked, criminal prosecutions in Europe offer hope for victims of crimes in Syria who have nowhere else to turn,” Jarrah said. “The trial in Koblenz shows that courts – even thousands of miles away from where the atrocities occurred – can play a critical role in combating impunity.”

Posted: January 1, 1970, 12:00 am

The role of the International Criminal Court (ICC) as the crucial court of last resort for the worst international crimes remains as critical as ever. Serious crimes committed in violation of international law persist and victims of atrocities around the globe look to the court for justice when all other doors are closed. The court is a central actor in asserting the rule-of-law globally by helping to show that no one is above the law. And yet, the court faces serious internal and external challenges that have hampered its delivery of justice and disappointed legitimate expectations of victims and affected communities.

The Assembly of States Parties (ASP) decision to commission an Independent Expert Review, following the request by the court’s leadership for a review of its performance, is a significant step to address these challenges.[1] The review process, along with elections in 2020 of the court’s next prosecutor and six new judges, offers an important opportunity to launch processes aimed at meaningful improvement in court performance. The court and states parties should seize these opportunities fully. A higher performing court, with greater support from states parties, is urgently needed to improve victims’ access to justice. The court’s mandate is under pressure at a time of weakened commitment to the global rule-of-law and its effective functioning is essential to secure progress in the fight against impunity. Changes aimed at strengthening the court’s policy and practice will also ensure the court is equipped to face politicized opposition to extending the reach of individual criminal responsibility even to the most powerful, as its founders created it to do.

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

Human Rights Watch submits the following observations and recommendations to assist the experts in their review. The court’s ability to be a powerful affirmation of the rule-of-law is only possible where that message is heard and understood by those victimized by criminality. Our analysis below highlights opportunities in which the court’s activities could be increasingly oriented towards the affected communities that lie at the heart of the court’s work.

For the expert review to be effective, it will need to be perceived as credible and legitimate by all stakeholders. This necessitates inclusive and transparent processes and scrupulous respect for the review’s independence and for the court’s judicial and prosecutorial independence. Some of the topics that may be the subject of review and are addressed below—prosecutorial strategies in preliminary examinations, case selection and prioritization, completion strategies, and processes to support judicial decision-making—raise sensitive questions at the heart of this independence. For these reasons, Human Rights Watch expects that the majority of the review’s recommendations may be directed at court officials for their consideration. At the same time, state party and ASP support is highly relevant to the court’s success.

1. Investigations and prosecutions

Strengthening investigations and prosecutions

Human Rights Watch urges the Independent Expert Review to pay particular attention to strengthening investigations and prosecutions by the Office of the Prosecutor (OTP).

In 2008, Human Rights Watch made a number of recommendations based on our observation of OTP practice.[2] The office’s record as its first cases reached the court’s judges underscored the need to strengthen investigative practices.[3] Changes announced by the OTP in its 2012-2015 strategic plan, published in October 2013, addressed issues it considered essential to improving the quality and efficiency of the office’s work. Based on our earlier research, three key changes appeared to be particularly important.

First, the office shifted away from focused investigations to more open-ended investigations that consider multiple case hypotheses.[4] This shift addresses concerns that by settling on a case hypothesis too early in its investigations, and pursuing only this case hypothesis in investigations, the office had sometimes overlooked evidence, impairing what it was ultimately able to prove at confirmation or at trial.[5] Second, the OTP decided to only seek arrest warrants or summonses where cases are as trial ready as possible, or where there are prospects of being trial ready within a reasonable time period.[6] Third, the office indicated it would increase its field presence and country knowledge.[7] These shifts have been maintained by the OTP as a matter of strategy and it has also made other changes reflected in its strategic plans.[8]

While Human Rights Watch has not had the opportunity to publish further detailed research assessing the OTP’s investigative practices, the need to strengthen the office’s investigations and prosecutions nevertheless remains a core concern.[9] As the OTP acknowledges, it has continued to suffer significant setbacks in court.[10] While acquittals are an essential part of judicial proceedings where the evidence does not support conviction, the low rate of convictions before the court raises questions about the capacity of the office to effectively amass evidence and develop sound case theories to deliver justice for crimes committed. The office recognizes the need to strengthen current practice.[11] The Independent Expert Review has a critical role to play in assessing the changes the OTP has made and what steps are needed to ensure the office moves forward the strongest possible cases.

Another specific concern that could be the focus of the experts’ assessment is the pace of current investigations. While shifts in the prosecutor’s strategies were likely to require lengthier investigations than in the earlier phases of the office’s work, long delays in active investigations are limiting the access of victims to justice and reinforcing or raising perception problems. This includes the Georgia, Côte d'Ivoire and second Central African Republic (CARII) situations. In CARII, it has been more than a year since arrest warrants were first made public for two suspects affiliated with the anti-balaka, one fighting force responsible for crimes in the conflict. Observers in the Central African Republic have raised deep concern about the lack of charges made public involving crimes committed by the other major armed force in the conflict, the Seleka, and the risk that impartial justice will not be delivered.[12]

Recommendations to the Independent Expert Review

  • Assess factors that affect the OTP’s ability to put forward strong cases in court supported by sufficient evidence.
  • Identify ways to reinforce the office’s commitment, as stated in its “Strategic Plan, 2019-2021,” to promote a culture of critical thinking and recommend monitoring and evaluation processes.
  • Examine steps the OTP could take to deepen the office’s country knowledge and presence of investigators.

Selection and prioritization of cases

The prosecutor’s selection of caseswhom to try and for what—provides the earliest and most visible measure of whether and how the court will bring justice to the victims of grave international crimes in the situations before the court. The ability of the ICC to have a positive impact in affected communities will be closely linked to its selection of cases. Its selection of cases also provides the framework in which the court’s other actors need to carry out their own responsibilities.[13] In addition, the exercise of the OTP’s prosecutorial discretion in a manner that affirms the office’s independence and impartiality is central to broader perceptions of the ICC. The prosecutor’s independence in the selection of cases should be vigorously defended by states parties. (While not the focus of these comments, this is true of decisions to seek investigations in new situations as well.)

There have been significant gaps in the OTP’s selection of cases. These include the absence of cases against senior leaders (as in the Ituri investigation in the Democratic Republic of Congo) or against different or a broader range of groups (as in Libya, Mali, and the Kivus investigation in the Democratic Republic of Congo). There have also been missteps in its decisions to sequence cases against different groups, as in Ituri and Côte d'Ivoire. This has led to a loss of confidence in the court as an independent or impartial institution in some situations.[14] At times, these issues could have been minimized through better communication by the OTP about its decisions. In Uganda, for example, the OTP has never ruled out investigation of abuses by Ugandan government forces but has also never taken such an investigation forward. Impunity for serious abuses by Ugandan government forces has been a persistent concern of people in northern Uganda. More regular updates and explanation about the ICC’s approach to those abuses are needed.[15] This has been replicated with regard to the CARII investigation, as discussed above. Beyond specific missteps, in all open situations under investigation, the number of cases brought by the office has been insufficient to address accountability needs. Many of these gaps, some long-standing, should be addressed by future ICC investigations.

These gaps have been to a certain degree the product of practice rather than policy.[16] The office’s recent introduction of a “case selection document” to identify and record all potential cases in a situation replaces a more ad hoc approach, and should advance the office’s stated goal of “represent[ing] as much as possible the true extent of the criminality which has occurred within a given situation.”[17] Giving effect to this goal, however, will require the office to bring forward considerably more cases per situation than has been the practice to date.[18]

Unfortunately, the office remains without the budgetary resources needed to support more effective application of its policy. It has signaled that it will need to prioritize between cases even more strictly given its expectation that the number of open situations will continue to increase in the coming years.[19] The need for increased vision by the OTP to address this dilemma and for states parties to address the lack of adequate resources without compromising on the court’s mandate is discussed below.

Recommendations to the Independent Expert Review

  • Revisit budgetary assumptions contained in the office’s “Basic Size” (as last updated in 2016) to determine resources necessary to support the office’s prosecutorial strategy and limit the considerable delay and need for prioritization in the roll-out of selected cases.
  • Examine options for increased consultation by the OTP with affected communities to better inform decisions regarding case selection and prioritization in the light of the experiences of victims.[20]

2. Preliminary examinations and positive complementarity

The ICC is a court of last resort, stepping in only where national authorities do not prosecute serious international crimes. Governments may avoid the ICC’s intervention by showing the ICC prosecutor that they are conducting genuine investigations. This can give the ICC prosecutor important leverage with these authorities during preliminary examinations, serving as a pressure point to promote progress on the delivery of justice for grave crimes domestically. By making the most of its unique leverage, the OTP has a critical role to play in expanding the fight against impunity by catalyzing national proceedings.

The office’s role is part of what is known as “positive complementarity,” that is, efforts aimed at supporting national justice efforts and implementing the Rome Statute’s complementarity principle in practice. This role in positive complementarity initiatives—whether in situations under preliminary examination or, on a court-wide basis, in situations under investigation—has been challenged by some states parties, which have questioned the resource implications for the court’s budget and the legal basis in the Rome Statute.[21] We see it as an essential element of strengthening the Rome Statute system, in which the court serves as an essential backstop for justice, but where efforts are also invested in building up national capacity. The court is not a development agency, but court officials nonetheless remain a key resource.[22] Every avenue for accountability should be pursued.

When it comes to preliminary examinations, the goal of catalyzing national justice is secondary. The OTP’s primary goal should remain a timely determination of whether the office will seek to exercise the ICC’s jurisdiction. Encouraging national cases—clearly identified by the OTP as a “policy objective”—will only be applicable in some situations.[23] The OTP has appropriately pursued this only where certain underlying conditions are met.[24]

Human Rights Watch compared the office’s practice across four situations (Colombia, Georgia, Guinea, and the United Kingdom/Iraq). We concluded that expectations about what the OTP can achieve to catalyze national justice should remain realistic. Stubborn obstacles to trying the most serious crimes before national courts mean that many preliminary examinations will result in the need to open ICC investigations. And yet, in each situation, we identified positive steps that were at least partly attributable to the office’s engagement. The strongest impact has been in Guinea, where, while the case has yet to go to trial, over time the OTP, together with other key international actors, has spurred incremental progress by national officials. We believe the OTP should seek to make the most of its leverage to press national efforts forward. Our recommendations identify shifts in OTP practice that could improve its impact, while also noting the central role for other international partners to amplify the office’s efforts. [25] These recommendations acknowledge the difficult balance the OTP needs to seek to leave open space for national authorities to act, while being willing—and being seen as willing—to conduct its own investigations if they do not, provided the ICC’s other jurisdictional requirements are met. 

Consideration of whether timelines should be attached to preliminary examinations has been proposed as part of the overall review process underway.[26] Preliminary examinations should last only as long as needed to fulfil their purpose. Where there are limited prospects of encouraging national prosecutions, the analysis should proceed rigorously to a determination as to whether or not an ICC investigation is merited. But where the office considers that there are prospects for catalyzing genuine proceedings, subjecting preliminary examinations to strict timelines is incompatible with the flexibility this engagement requires.

A better approach is for the office to make increased use of benchmarks. The use of benchmarks can stimulate national authorities to take specific steps, and where publicly communicated, can signal to partners and civil society how to amplify the office’s efforts. In Guinea, for example, the OTP identified as benchmarks the need to visit the crime scene and interview key witnesses. In Colombia, by contrast, more general discussions with national authorities appeared not to have convinced some officials that the ICC would be prepared to open investigations into army killings, lessening the office’s influence. The OTP can develop such benchmarks through its assessment of national proceedings and engaging national authorities, NGOs, and other stakeholders to determine what concrete steps are needed to advance these proceedings. The use of benchmarks also allows the OTP to identify where such steps are not being taken and the time for deference to national proceedings has ended.[27]

In assessing complementarity, it is important to recall that the genuineness of national proceedings refers to the ability and willingness of national authorities to investigate potential cases that might otherwise be heard before the ICC, rather than a general assessment of the legal system. As the OTP has indicated, “[i]f an otherwise functioning judiciary is not investigating or prosecuting the relevant case(s), the determining factor is the absence of relevant proceedings.”[28] Human Rights Watch’s research and advocacy regarding national trials suggests that the absence of political will to support independent investigations and prosecutions is often a key barrier to domestic cases.[29]

Recommendations to the Independent Expert Review

  • Consider ways for the OTP to advance more quickly through the earliest phases of preliminary examinations, including by reallocating a greater share of resources to these phases. Our research and OTP experience suggests that opportunities to engage with national authorities regarding progress in specific cases increase after the office has already determined that there are potential ICC cases.[30]
  • Examine, based on the OTP’s experience to date, how benchmarks could be further used to press for progress in national investigations and prosecutions during the course of preliminary examinations and other steps to increase transparency.

3. Seeking greater coherence in the court’s jurisprudence and timeliness in judicial decision-making

The ICC’s ability to effectively try cases, including ensuring scrupulous respect for fair trial rights, rests on the quality of its judicial decision-making. ICC judges hand down judgments that significantly influence international criminal law jurisprudence and deeply impact the lives of victims and affected communities, in addition to providing important managerial and leadership functions essential to the court’s operation.

While we have followed initiatives undertaken by the bench to assess needed rule amendments and the development of the Chambers Practice Manual, Human Rights Watch has not conducted recent research regarding the working methods of the judiciary. We are concerned, however, by the need to ensure greater coherence in the court’s jurisprudence. Fragmented opinions can make it difficult to discern key holdings, as was the case in the appeals chamber decision in the Bemba case.[31]

The time required to issue decisions also requires examination. In the Afghanistan situation, the pre-trial chamber delivered its decision on the prosecutor’s request for authorization to investigate 17 months after it was made. In the Gbagbo and Blé Goudé case, the judges did not issue detailed written reasons simultaneously with the acquittal; a written judgment was only filed six months later. This created significant confusion in Côte d'Ivoire and challenged court efforts to explain the decision to Ivorians. It played out in the context of a situation in which the prosecution’s failure to bring cases against those supportive of President Alassane Ouattara and who allegedly had committed grave crimes had already polarized opinion about the court domestically, as noted above. ICC judges have recently agreed to deadlines for key judicial decisions and included these in the Chambers Practice Manual.[32]

Recommendation to the Independent Expert Review

  • Consider measures that could enhance coherence in the court’s jurisprudence, including further changes to the Chambers Practice Manual and recommended training for newly elected judges in the court’s procedures, caselaw, and institutional arrangements.

4. Completion strategies

The Office of the Prosecutor’s 2019-2021 Strategic Plan commits to developing a policy on the completion of situations under investigation and this is echoed in the court-wide strategy.[33] Development of court-wide completion strategies for each ICC situation under investigation should be rooted in greater clarity on the meaning and utility of such strategies. In our view, and drawing lessons from the ad hoc tribunals and Special Court for Sierra Leone, these situation-specific strategies should be developed as soon as possible from the outset of a new situation and define what the court seeks to achieve by the end of its work in a given situation. They should set benchmarks to assess progress toward those goals. This should include the goal of contributing to “positive complementarity” efforts to support national authorities to investigate and prosecute ICC crimes, an essential part of the court’s potential legacy in situation countries. In this way, completion strategies will help embed court activities, including the prosecution’s selection of cases, discussed above, in a clear vision aimed at maximizing the court’s impact in affected communities. They could also help to project to states parties the court’s resource needs and how resources will be directed in the long-term. In addition to court-wide consultation, strategies should be rooted in engagement with national authorities and affected communities. [34] In the implementation of these strategies, the court should be able to rely in some situations on its Assembly of States Parties to broker assistance between states parties and other international actors to support capacity-building efforts to enable the transfer of court responsibilities to national authorities.[35]

Recommendations to the Independent Expert Review

  • Consider whether a consultation process, with particular attention to the experience of the ad hoc tribunals and Special Court for Sierra Leone, could support the court’s design of a general “template” for completion strategies, to be adapted on a situation-by-situation basis.

  • Recommend completion strategies cover the range of court functions and identify areas where assistance by national authorities, other states, and international partners will be necessary to support completion strategies.

5. Country offices and outreach

While recognizing that country offices may not be feasible in every situation, Human Rights Watch advocates for the establishment of ICC offices as early as possible from the outset of investigations.[36] The ICC’s presence in situation countries facilitates specific court mandates, ranging from investigations to witness protection to outreach, and could include in situ proceedings. But they are also a key vehicle through which to root the court’s work in situations under investigation, ensure court activities are responsive to national developments, enhance communication between the court and affected communities, and support activities aimed at securing the court’s long-term legacy. The latter includes positive complementarity initiatives.

The Registry’s outreach activities are a particularly central component of the court’s engagement with affected communities, with the aim of ensuring justice is not only done, but seen to be done. Outreach also enables victims to access their rights before the court and can create favorable conditions for investigations. These activities are facilitated by country offices where those exist and through the Outreach Unit of the Registry’s Public Information and Outreach Section. To reach national or regional audiences, outreach activities directed to communities within the scope of charges brought by the Office of the Prosecutor in given cases need to be integrated with broader public information activities.

The court’s approach to country offices has evolved positively. Initially conceived narrowly as supporting investigations and witness protection, country offices expanded to include staff associated with outreach, the facilitation of victim participation, and the Trust Fund for Victims. Following the Registry’s ReVision, country offices are headed by “chiefs of country offices.” Human Rights Watch advocated for this high-level leadership to improve the strategic orientation of court activities towards maximizing local impact and to facilitate better coordination between Registry mandates.[37] Effective implementation of this new structure requires close coordination with relevant sections in The Hague to ensure coherence across the court’s work.

The Registry plans to “devise and agree on a sustainable framework for the introduction, operation and closure of country offices” in coordination with the OTP.[38] In Human Rights Watch’s assessment, decisions about scaling up and down country offices have prioritized supporting judicial activities, as opposed to ensuring decisions are also rooted in an assessment of how the ICC’s presence can advance the court’s local impact.[39] Delay in opening the Georgia country office is one example. Although investigations were authorized in January 2016, a country office was not opened until December 2017. An office may not have been needed from the outset to support investigations, as those investigations scaled up. But there were immediate public information needs, given limited knowledge in the country and region about the ICC and the lengthy period of preliminary examination.[40]

The same goes for decisions about scaling down country offices. Redeployment of resources between country offices has been used as a cost-saving measure, but where these decisions are taken in the absence of a longer-term strategy, they can undermine the court’s relationship with affected communities. The decision in 2014 to scale back all outreach activities in Uganda due to the absence at the time of arrests was criticized by local groups as “risk[ing] sending a message that the Court has now given up.”[41] The Outreach Unit had to scale up its presence in Uganda a few months later when Dominic Ongwen was transferred to The Hague in early January 2015. The court’s 2020 budget request indicates that it has taken the “first steps” to downsize its presence in Democratic Republic of Congo.[42] As far as we are aware, however, the court has yet to develop a completion strategy for the situation.

As an alternative to relying on judicial developments to direct decisions about opening, scaling, and closing of country offices, Human Rights Watch has recommended that the Registry develop organ-wide, country-specific strategies for maximizing local impact with affected communities. These strategies should define how the Registry’s mandates can contribute to impact, with a view toward developing specific action plans. They will require coordination with the OTP and could be developed as part of court-wide completion strategies.[43]

Recommendations to the Independent Expert Review

  • Consult widely with country-based ICC staff.
  • Assess current levels of satisfaction with the court’s performance within affected communities, to the extent information is available to the review process, and recommend measures the court could take to access such information on an ongoing basis. These assessments could be built into the court’s performance indicators. While the performance indicators assess the transparency and efficiency of proceedings and victims’ access to the court (including indicators relevant to the ICC’s country offices and outreach activities), they rely on data about court activities.[44] External evaluations or survey data collected by the court could also be considered, first to set baselines and, later, to assess progress.
  • Recommend steps to ensure the court’s country-based activities maximize its local impact.
  • Consider whether additional measures are needed to promote communication and coordination between country offices and The Hague.

6. Family visits

The right of all detained persons to family visits is well recognized.[45] The ICC presidency, in a March 2009 judicial decision, held that the ICC has a positive obligation to fund family visits of indigent persons in order to give effect to their right to family visits.[46] In November 2009, however, the Assembly passed a resolution reaffirming many states parties’ position “that according to existing law and standards, the right to family visits does not comprise a co-relative legal right to have such visits paid for by the detaining authority or any authority.”[47] In 2010, the Assembly established a Trust Fund for family visit for indigent detainees in order to ensure that family visits are now funded entirely through voluntary contributions.[48]

Unfortunately, since then, states parties have not followed through on the creation of the Trust Fund. As of September 2019, five states had made donations totaling approximately 250,000 euros, but the fund has been allowed to dip to a zero balance.[49]

Recommendation to the Independent Expert Review

  • Consider whether more effective funding mechanisms, including returning to the use of the court’s regular budget, are needed to ensure the effective protection of the rights of indigent ICC detainees to family visits.

7. Adequate resources

While court practice should be strengthened, the ICC’s performance has also been hampered by inadequate resources in key areas. Human Rights Watch does not take a position as to the overall budget request submitted by the ICC each year. Rather, we have considered the court’s budget request from the perspective of identifying where inadequate resources may limit the court’s effectiveness in combating impunity.

The lack of adequate resources is particularly evident when considering the limited number of cases brought by the OTP per situation. The court’s first prosecutor requested minimal budgetary increases, reflecting the office’s policy at the time of focused, phased investigations, rotating resources within the OTP between cases.[50] The office received a boost in resources between 2013 and 2015, suggesting initial state party support for the changes announced to prosecutorial strategy in 2013, discussed above. But its approved budget since then has stagnated, increasing by a little over 4 million euros between 2016 and 2020 to 47.4 million euros.[51] This is far from the “basic size” of 61.1 million euros the OTP estimated it would need by 2021, even while setting its “pace below the level of full demand.”[52]

The court’s budget request for 2020 explicitly indicated that a lack of resources has impeded the office’s progress in its Burundi investigation and previously delayed the start of its second Côte d'Ivoire investigation. The office also indicated that its Georgia investigation would continue “within the available resources.”[53] As noted above, the OTP plans to use “further prioritisation” leading to delays in some investigations and prosecutions to attempt to square increasing demand with resources (among other measures).[54]

While a certain degree of prioritization is necessary, too few cases per situation has exacerbated problems in case selection gaps. This has left the court in many open situations without a sufficient footprint to deliver justice meaningfully, as discussed above. And when cases fail, the selection of too few cases can collapse an entire situation and victims’ hopes for redress, as in the court’s first Central African Republic investigation.[55] To deliver more successfully on the court’s mandate, and to secure the court’s legacy and legitimacy, the prosecution will need to bring more cases per situation.

Other resource gaps exist in the court’s work, including those necessary to support critical outreach and public information activities. The court’s Outreach Unit, which is responsible for outreach activities in the country situations where the court does not have offices and also supports activities elsewhere, has four staff members.

Human Rights Watch is concerned that a lack of adequate resources may lead to calls for the court to scale back on its mandate. This would be in contrast to the ambitions of its founders to set up a court of last resort to tackle entrenched impunity and hold senior leaders to account. 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.[56]

Pressure by some states parties for zero growth in the court’s budget has been one factor in undermining a genuine dialogue as to the resources adequate to deliver on the court’s mandate. It has affected, in our view, the ability of ICC officials to come forward with budget requests that would more adequately address the backlog of pending investigations. Human Rights Watch has called on the OTP to provide a greater vision for reckoning with the tough choices it faces given the need both to increase the number of investigations in open situations and expand its work to new situations.[57] Completion strategies, discussed above, could be one tool. States parties, however, need to address the court’s lack of adequate resources. Together with Amnesty International, we proposed that the court draw on its “basic size” modeling to go further and define its “optimal” capacity. This should encompass an assessment of the number of investigations, prosecutions, and trials that a high-performing and efficient ICC, with three courtrooms in its permanent premises, could carry out to play the best possible role it can in the fight against impunity. It should include modeling the human and financial resources to support the robust engagement in situation countries necessary to ensure impact in affected communities.[58] The articulation of such a vision could provide a platform to renew state party consideration of how budgetary resources could be made available and on what timeframe.

Recommendations to the Independent Expert Review

  • Identify specific areas where resource limits have played a role in affecting the court’s performance.
  • Consider whether a follow-up exercise to be conducted by the court with the assistance of independent experts is needed to develop a model of the court’s “optimal” capacity.

8. The Assembly of States Parties as a strategic partner on cooperation

The ICC’s success is directly related to the will of states parties and intergovernmental organizations to support it. Without its own police force to facilitate investigations, to locate witnesses, and to apprehend suspects, the ICC must rely on the cooperation of states parties in order to fulfill its mandate. It is crucial that states parties view their responsibility to cooperate with the court as substantially more far reaching than responding to the court’s targeted demands for assistance. This court simply cannot succeed without active engagement by states parties in facilitating achievement of the ICC’s objectives.

The court’s Assembly of States Parties has a number of critical functions, including setting the court’s annual budget, electing officials, developing the court’s legislative framework, responding to non-cooperation findings, and providing management oversight to the court’s principals regarding the ICC’s administration. The ASP needs to carry out these functions in a manner that seeks to ensure the election of the most highly qualified court officials, without regard for political considerations; respects prosecutorial and judicial independence; and defers to the expertise of court officials when it comes to their setting of court policy.

We have advocated for the ASP to play a robust role as a strategic partner for the court, particularly when it comes to strengthening cooperation by states parties and other actors, including the United Nations. The Assembly has undertaken significant initiatives through its facilitators and focal points on cooperation and non-cooperation. The Assembly should resume consideration of several of these, including (1) establishing a coordination mechanism of national focal points;[59] (2) advancing specific recommendations in the draft Action Plan on arrest strategies;[60] and (3) further development and implementation of the Assembly’s procedures on non-cooperation to ensure these procedures are mandatory and provide for more specific sanctions to bring about cooperation.[61]


[1] See Assembly of States Parties (ASP), “Review of the International Criminal Court and the Rome Statute System,” Resolution ICC-ASP/18/Res.7, December 6, 2019, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP18/ICC-ASP-18-Res7-ENG-ICC-R... (accessed April 7, 2020), para. 6.

[2] See Human Rights Watch, Courting History: The Landmark International Criminal Court’s First Years, July 2008, https://www.hrw.org/sites/default/files/reports/icc0708_1.pdf, pp. 45-58.

[3] As of November 2013, in cases that had gone forward to a confirmation hearing, judges declined to confirm charges against 4 out of 14 defendants. In the two cases that had proceeded to a verdict by that point, one had resulted in a conviction and one in an acquittal. For an assessment of the office’s investigative practices as of October 2012, see War Crimes Research Office, American University Washington College of Law, “Investigative Management, Strategies, and Techniques of the International Criminal Court’s Office of the Prosecutor,” October 2012, https://www.wcl.american.edu/impact/initiatives-programs/warcrimes/our-p... (accessed April 12, 2020).

[4] International Criminal Court Office of the Prosecutor (OTP), “Strategic plan June 2012-2015,” October 11, 2013, https://www.icc-cpi.int/iccdocs/otp/OTP-Strategic-Plan-2013.pdf (accessed April 7, 2020), para. 23.

[5] The external expert review and lessons drawn from the Kenya situation, commissioned by the OTP, and which focused on the earliest years of the OTP’s engagement in the situation, described the approach as “target-based.” See “ICC OTP Kenya Cases: Review and Recommendations; Executive Summary of the Report of the External Independent Experts,” para. E17, annex I to “Full Statement of the Prosecutor, Fatou Bensouda, on external expert review and lessons drawn from the Kenya situation,” November 26, 2019, https://www.icc-cpi.int/itemsDocuments/261119-otp-statement-kenya-eng.pdf (accessed April 7, 2020).

[6] OTP, “Strategic plan June 2012-2015,” para. 4. The external expert review of the Kenya situation concluded that the decision to delay in-country investigations in Kenya until after the confirmation of charges hearings meant these investigations faced considerably weakened conditions, including a propaganda campaign against the court, a lack of government cooperation, and increased witness interference. See “ICC OTP Kenya Cases: Review and Recommendations; Executive Summary of the Report of the External Independent Experts,” paras. E17-E18.

[7] OTP, “Strategic plan June 2012-2015,” para. 48. Having investigators based in situation countries for a longer period of time, rather than conducting shorter missions from The Hague, should permit investigators to develop stronger networks for cooperation, as well as contacts with potential witnesses, react more flexibly to changing circumstances on the ground, and, overall, increase the office’s appreciation of context, informing prosecutorial strategies. See Human Rights Watch, Courting History, pp. 55-58.

[8] See, e.g., OTP, “Strategic Plan 2016-2018,” November 16, 2015, https://www.icc-cpi.int/iccdocs/otp/EN-OTP_Strategic_Plan_2016-2018.pdf (accessed April 7, 2020), paras. 56, 65, 87, 99; “Strategic Plan 2019-2021,” July 17, 2019, https://www.icc-cpi.int/itemsDocuments/20190726-strategic-plan-eng.pdf (accessed April 7, 2020), paras. 16, 17, 24, 46.

[9] See, e.g., Human Rights Watch, “Briefing Note for the Seventeenth Session of the International Criminal Court Assembly of States Parties,” November 21, 2018, https://www.hrw.org/sites/default/files/supporting_resources/en_hrw_asp1..., p. 5.

[10] These include the vacating of charges against William Ruto and Joshua arap Sang, the acquittal of Laurent Gbagbo and Charles Blé Goudé following a no-case-to-answer motion (now under appeal), and the reversal, on appeal, of the conviction against Jean-Pierre Bemba. See OTP, “Report on the Implementation of the OTP Strategic Plan, 2016-2018,” August 23, 2019, https://www.icc-cpi.int/itemsDocuments/20190823-otp-report-SP-2016-2018-... (accessed April 14, 2020), para. 17. The office has secured final convictions in four cases and a conviction against Bosco Ntaganda in July 2019 on charges that were expanded considerably through additional investigations following his surrender to the court in 2013. See “ICC: Congo Warlord Guilty of Crimes Against Humanity,” Human Rights Watch news release, July 8, 2019, https://www.hrw.org/news/2019/07/08/icc-congo-warlord-guilty-crimes-agai.... Appeals are pending in the Ntaganda case.

[11] See OTP, “Strategic Plan 2019-2021,” paras. 6, 14-17.

[12] See Lydie Nzengou, “CAR’s Civil Society is preoccupied by the ICC’s policy which consists of prosecuting alleged criminals from only one political side” (La Société Civile Centrafricaine Est Préoccupée par la Politique de la CPI qui Consiste à Poursuivre les Présumés Criminels d’un Seul Côté), Mbi la Gué, December 16, 2019, https://mbilague.info/la-societe-civile-centrafricaine-est-preoccupee-pa... (accessed April 7, 2020); Tigranna Zakaryan, “A Chance to Rebuild the Court’s Reputation: Civil Society Perspectives on the ICC in Central African Republic,” International Justice Monitor, December 13, 2019, https://www.ijmonitor.org/2019/12/a-chance-to-rebuild-the-courts-reputat... (accessed April 7, 2020). For a discussion of the perception problems raised by the absence of cases against pro-Ouattara forces in Côte d'Ivoire, see Human Rights Watch, Making Justice Count: Lessons from the ICC’s Work in Côte d’Ivoire, August 2015, https://www.hrw.org/sites/default/files/report_pdf/cdi0815_4up.pdf, pp. 40-43.

[13] See Human Rights Watch, Making Justice Count, p. 21.

[14] See Human Rights Watch, Making Justice Count, pp. 40-43; Unfinished Business: Closing Gaps in the Selection of ICC Cases, September 2011, https://www.hrw.org/sites/default/files/reports/icc0911webwcover.pdf, pp. 12-22, 24-29, 31-33, 34-36.

[15] See Human Rights Watch, Unfinished Business, pp. 24-29; Lino Owor Ogora, “Civil Society in Uganda Outraged by Controversial Newspaper Article Clearing Ugandan Army of Committing War Crimes,” International Justice Monitor, February 7, 2018, https://www.ijmonitor.org/2018/02/civil-society-in-uganda-outraged-by-co... (accessed April 7, 2020).

[16] The office’s emphasis in its 2016 “Case Selection and Prioritisation Policy” on an impartial assessment of allegations against all groups or parties within a particular situation and commitment for “the charges chosen [to] constitute, whenever possible, a representative sample of the main types of victimisation and of the communities which have been affected by the crimes in that situation” should ensure the court’s cases remain responsive to victims’ experiences. See OTP, “Policy paper on case selection and prioritisation,” September 15, 2016, https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selectio... (accessed April 7, 2020), paras. 20, 45. In addition, the office moved away as a matter of strategy from an overly rigid approach to “sequencing,” that is, pursuing cases against one group in a given situation, and then investigating other groups. This approach gave rise to significant perceptions of bias in the OTP’s Ituri investigations. See Human Rights Watch, Courting History, pp. 50-53. In its “Report of the Court on the Basic Size of the Office of the Prosecutor,” the OTP indicated that it would plan to conduct simultaneous investigations to cover all sides to a conflict. 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 April 7, 2020), para. 24.The office’s indication in its 2016 policy regarding the need to prioritize the roll-out of cases, however, could replicate some of the problems raised by its sequencing approach, in that it could lead to considerable time delays between the emergence of cases against different groups. The policy recognizes the “the impact of investigations and prosecutions on the victims of the crimes and affected communities” and the “impact and the ability of the office to pursue cases involving opposing parties to a conflict in parallel or on a sequential basis” as criteria governing prioritization decisions, and these criteria should be given particular weight. See OTP, “Policy paper on case selection and prioritisation,” para. 50.

[17] See OTP, “Policy paper on case selection and prioritisation,” paras. 10-15, 45.

[18] The office’s “Strategic Plan, 2019-2021” indicates it may shift to “narrower cases.” Although it makes clear that these will be used as a means toward achieving cases against those most responsible, we are concerned that in practice they could become a substitute for such cases. Implementing this strategic direction requires more cases per situation—narrower cases in the short term together with cases aimed at holding those most responsible to account. This is in tension with the plan’s indication, cited below, that resource constraints will require an even stricter prioritization between cases. Narrower cases could serve to dominate the court’s docket as a result. See 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-offi....

[19] OTP, “Strategic Plan, 2019-2021,” para. 22. We raised concerns in 2011 that “the ICC and its prosecutor [would] increasingly ‘hollow out’ the court’s approach to its situations under investigation. That is, the ICC may take on more situations, but do less and less in each situation to square demand with limited resources.” Human Rights Watch, Unfinished Business, pp. 1-2. Human Rights Watch recommends that these consultations could be assisted by developing a strategy to take into account (a) how to make the best use of analysis conducted during the preliminary examination process, particularly when it comes to information collected as to the “interests of victims”; (b) how to make the best use of the written, victims’ representation process conducted pursuant to article 15; (c) whether an article 15-like process with regard to written, victims’ representations should be replicated, even where investigations are opened pursuant to state or Security Council referrals; and (d) how to conduct consultations with victims, while taking steps to minimize risks to them and their representatives or intermediaries.

[21] See 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, p. 1275.

[22] See Human Rights Watch, Making Kampala Count: Advancing the Global Fight against Impunity at the ICC Review Conference, May 2010, https://www.hrw.org/sites/default/files/reports/ij0510webwcover.pdf, pp. 46-49.

[23] See OTP, “Policy paper on Preliminary Examinations,” November 2013, https://www.icc-cpi.int/iccdocs/otp/OTP-Policy_Paper_Preliminary_Examina... (accessed April 8, 2020), paras. 100-103.

[24] The OTP’s approach, generally, is to defer to domestic authorities for a certain amount of time where it determines that genuine proceedings are or can be conducted. To that end, “[w]here potential cases falling within the jurisdiction of the Court have been identified, the office will seek to encourage, where feasible, genuine national investigations and prosecutions by the States concerned in relation to these crimes.” OTP, “Policy Paper on Preliminary Examinations,” para. 101. The OTP’s practice is to intensify positive complementarity activities during “Phase 3,” that is, only after the OTP has concluded that a reasonable basis exists to believe that crimes within the ICC’s jurisdiction have been committed. An exception to this might be where there are already significant national proceedings, such that even at Phase 2 the OTP has the opportunity to engage with authorities regarding these proceedings. The OTP’s efforts to encourage national proceedings unfold in one or two circumstances: either where national proceedings have already been opened, or, even there where are no national proceedings, if a government states its intention to investigate. See Human Rights Watch, Pressure Point: The ICC’s Impact on National Justice: Lessons from Colombia, Georgia, Guinea, and the United Kingdom, May 2018, https://www.hrw.org/sites/default/files/report_pdf/ij0418_web_0.pdf, p. 158.

[25] See Human Rights Watch, Pressure Point, pp. 1-19.

[26] See ASP, “Meeting the challenges of today for a stronger Court tomorrow Matrix over possible areas of strengthening the Court and Rome Statute system,” November 27, 2019, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP18/ICC-review-Matrix-v2-27No... (accessed April 8, 2020), p. 10.The office provided some guidance in its 2015 “Basic Size” regarding the expected length of examinations. See ASP, “Report of the Court on the Basic Size of the Office of the Prosecutor,” p. 37.

[27] See further discussion in Human Rights Watch, Pressure Point, pp. 10-14, 19-21.

[28] OTP, “Policy Paper on Preliminary Examinations,” para. 46.

[29] See Human Rights Watch, Making Kampala Count, pp. 50-53.

[30] See Human Rights Watch, Pressure Point, pp. 14-16.

[31] Beyond the majority opinion, there were two separate concurring opinions and a dissent. See Joseph Powderly and Niamh Hayes, “The Bemba Appeal: A Fragmented Appeals Chamber Destablises the Law and Practice of the ICC,” PhD studies in human rights (blog), June 26, 2018, http://humanrightsdoctorate.blogspot.com/2018/06/the-bemba-appeal-fragme... (accessed April 8, 2020).

[32] ICC, “Chambers Practice Manual,” November 29, 2019, https://www.icc-cpi.int/iccdocs/other/191129-chamber-manual-eng.pdf (accessed April 8, 2020), pp. ii-iii.

[33] See OTP, “Strategic Plan 2019-2021,” para. 23; ICC, “Strategic Plan 2019-2021,” July 17, 2019, https://www.icc-cpi.int/itemsDocuments/20190717-icc-strategic-plan-eng.pdf (accessed April 15, 2020), p. 11. The United Kingdom has proposed the need for a “closure strategy” for the court’s cases, including situations under preliminary examination. See Statement by Andrew Murdoch, Legal Director to the International Criminal Court Assembly of States Parties, at its 17th session in The Hague, December 5, 2018, https://www.gov.uk/government/speeches/uk-statement-to-icc-assembly-of-s... (accessed April 8, 2020). In our view the completion of a preliminary examination, with either a decision to open or seek authorization to open an investigation or to close the preliminary examination where Rome Statute criteria are not met for an ICC investigation, presents very different issues to the kinds of completion strategies for situations under investigation we discuss here.

[34] See Elizabeth Evenson and Alison Smith, “It’s a Journey, Not a Destination: Court-Wide Completion Strategies in ICC Situations Under Investigation Can Promote a Shared Vision of the Court’s Mandate, Guiding Its Exercise and Bringing on Board Support From Other Actors,” ICC Forum, https://iccforum.com/completion#Evenson (accessed April 9, 2020).

[35] Discussions can draw on previous work carried out by Assembly focal points on complementarity and reports prepared by the court. These highlighted initial elements for completion strategies and the connection to efforts directed at building capacity in national jurisdictions to facilitate the transfer of court responsibilities. See ASP, “Report of the Court on complementarity: Completion of ICC activities in a situation country,” ICC-ASP/12/32, October 15, 2013, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-32-ENG.pdf (accessed April 9, 2020); see also Secretariat of the ASP, “Complementarity Seminar on completion strategies across the ICC’s activities,” April 4, 2019, https://asp.icc-cpi.int/en_menus/asp/complementarity/Documents/4April%20... (accessed April 9, 2020). The Assembly has mandated its Secretariat to “facilitate the exchange of information between the Court, States Parties and other stakeholders, including international organizations and civil society, aimed at strengthening domestic jurisdictions.” It hosts an online platform but has been limited to engaging “within existing resources.” See ASP, “Strengthening the International Criminal Court and the Assembly of States Parties,” Resolution ICC-ASP/18/Res.6, December 6, 2019, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP18/ICC-ASP-18-Res6-ENG.pdf (accessed April 9, 2020), para. 133.

[36] To date, limited consideration has been given to the opening of country offices in preliminary examinations. At the ICC, public information activities in situations under preliminary examination have been considered to be the responsibility of the OTP, while the Outreach Unit’s mandate with the court’s Registry kicks in once situations are under formal investigation. The Assembly has recognized the need for “early outreach from the outset of the Court’s involvement, including during the preliminary examination stage.” See ASP, “Strengthening the International Criminal Court and the Assembly of States Parties,” Resolution ICC/ASP18/Res.6, December 2019, para. 66.

[37] See Human Rights Watch, Making Justice Count, pp. 22-30.

[38] See Registry, ICC, “Registry Strategic Plan (2019-2021),” July 17, 2019, https://www.icc-cpi.int/itemsDocuments/190717-reg-strategic-plan-eng.pdf (accessed April 9, 2020), p. 9.

[39] For an overview of activities and phases as they relate to the Registry’s activities in situation countries, see ASP, “Final report of the Court on the Court-wide impact of the OTP Basic Size model,” ICC-ASP/15/34, November 14, 2016, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP15/ICC-ASP-15-34-ENG.pdf (accessed April 9, 2020), pp. 11-20.

[40] See Stephanie Maupas, “If the ICC Fails in Georgia, It Will be the Same in Afghanistan and Palestine: Interview with Nika Jeiranashvili,” July 5, 2017, https://www.justiceinfo.net/en/tribunals/icc/33785-if-the-icc-fails-in-g... (accessed April 9, 2020). For a discussion regarding the impact on outreach activities given delays in scaling up the Côte d'Ivoire office, see Human Rights Watch, Making Justice Count, pp. 20, 46-57.

[41] Human Rights Watch, Making Justice Count, p. 24, n.18.

[42] See 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 April 9, 2020), para. 543.

[43] See Human Rights Watch, Making Justice Count, pp. 77-82.

[44] See ICC, “Third Court’s report on the development of performance indicators for the International Criminal Court,” November 15, 2017, https://www.icc-cpi.int/itemsDocuments/171115-Third-Report-performance-i... (accessed April 9, 2020).

[45] See, e.g., Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted December 9, 1988, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988), https://www.ohchr.org/Documents/ProfessionalInterest/bodyprinciples.pdf (accessed April 10, 2020), principle 19 (“A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.”). Regulation of the Court 100 states that “[a] detained person shall be entitled to receive visits,” ICC, “Regulations of the Court,” May 26, 2004, https://www.icc-cpi.int/Publications/Regulations-of-the-Court.pdf (accessed April 9, 2020). Rreg. 100. Regulation of the Registry 179 provides that the “Registrar shall give specific attention to visits by family of the detained persons with a view to maintaining such links.” ICC, “Regulations of the Registry,” March 6, 2006, https://www.icc-cpi.int/resource-library/Documents/RegulationsRegistryEn... (accessed April 9, 2020), reg. 179.

[46] See Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, “Decision on Mr. Mathieu Ngudjolo's Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar’s Decision of 18 November 2008,” ICC, Case No. ICC-01/04-01/07, March 10, 2009, https://www.icc-cpi.int/CourtRecords/CR2009_02787.PDF (accessed April 9, 2020).

[47] See ASP, “Family visits for indigent detainees,” Resolution ICC-ASP/8/Res.4, November 26, 2009, https://asp.icc-cpi.int/iccdocs/asp_docs/Resolutions/ICC-ASP-8-Res.4-ENG... (accessed April 9, 2020), preambular para. 2.

[48] See ASP, “Financial statements for the period 1 January to 31 December 2010,” ICC-ASP/10/12, July 26, 2011, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP10/OR/ICC-ASP-10-20-Vol.II-E... (accessed April 9, 2020), p. 318.

[49] See ICC, “The Trust Fund for Family Visits,” https://www.icc-cpi.int/Publications/20190919-tffvisits-eng.pdf (accessed April 13, 2020), p. 3; International Bar Association, “IBA urges State Parties’ cooperation and greater support for the International Criminal Court,” December 6, 2019, https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=aa216004-30b5-4... (accessed April 9, 2020).

[50] See War Crimes Research Office, American University Washington College of Law, “Investigative Management Strategies, and Techniques of the International Criminal Court’s Office of the Prosecutor,” pp. 24-33.

[51] See ASP, “Resolution of the Assembly of States Parties on the proposed programme budget for 2020, the Working Capital Fund for 2020, the scale of assessment for the apportionment of expenses of the International Criminal Court, financing appropriations for 2020 and the Contingency Fund,” Resolution ICC-ASP/18/Res.1, December 6, 2019, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP18/ICC-ASP-18-Res1-ENG.pdf (accessed April 9, 2020), para. 1.

[52] See ASP, “Report of the Court on the Basic Size of the Office of the Prosecutor,” paras. 5, 39. The OTP later updated its “basic size” to project a budget of 61.1 million euros by 2021. See ASP, “Final report of the Court on the Court-wide impact of the OTP Basic Size model,” para 33.

[53] See ASP, “Proposed Programme Budget for 2020 of the International Criminal Court,” paras. 113, 121, and 126.

[54] See OTP, “Strategic Plan 2019-2021,” para. 22.

[55] See Elise Keppler (Human Rights Watch), “No Redress for Central African Victims,” dispatch, June 11, 2018, https://www.hrw.org/news/2018/06/11/no-redress-central-african-victims.

[56] 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,” ICC-02/17-33, April 12, 2019, https://www.icc-cpi.int/CourtRecords/CR2019_02068.PDF (accessed April 9, 2020), para. 95. In March 2020, the appeals chamber overturned the pre-trial chamber, authorizing the prosecutor to open an investigation into the Afghanistan situation.

[57] Human Rights Watch, “Comments on Office of the Prosecutor, International Criminal Court, ‘Strategic Plan, 2019-2021’,” June 10, 2019, https://www.hrw.org/news/2019/11/13/office-prosecutor-international-crim....

[58] See Elizabeth Evenson (Human Rights Watch) and Jonathan O'Donohue (Amnesty International), “Still falling short—the ICC’s capacity crisis,” commentary, Open Democracy, November 3, 2015, https://www.hrw.org/news/2015/11/03/still-falling-short-iccs-capacity-cr....

[59] See Human Rights Watch, “Memorandum for the Thirteenth Session of the International Criminal Court Assembly of States Parties,” November 25, 2014, https://www.hrw.org/sites/default/files/related_material/HRW%20ASP13%20M..., p. 24.

[60] ASP, “Report of the Bureau on Cooperation, Annex IV: Report on the draft Action Plan on arrest strategies, submitted by the Rapporteur,” ICC-ASP/14/26/Add.1, November 16, 2015, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP14/ICC-ASP-14-26-Add1-ENG.pdf (accessed April 9, 2020).

[61] 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 April 14, 2020), annex II (“Assembly procedures relating to non-cooperation”).

Posted: January 1, 1970, 12:00 am

 

Rohingya walk at Dar Paing camp, Rakhine State, Myanmar, March 17, 2017.

© 2017 AP Photo

The clock is ticking for Myanmar to report to the International Court of Justice (ICJ) in The Hague.

This week, Myanmar’s government issued two presidential directives in response to the ICJ’s January order that the government and military prevent genocide of the Rohingya Muslim ethnic group and preserve evidence of crimes that could amount to genocide.

The court ordered Myanmar to report on its compliance by May 23 and then every six months while Gambia’s case alleging that abuses against the Rohingya violated the Genocide Convention proceeds.

Directive No. 1/2020 orders “all Ministries and all Regions and States Governments” to ensure its staff and others under its control “do not commit” acts defined in the Genocide Convention. Directive No. 2/2020 prohibits “all Ministries and the Rakhine State government” from destroying or removing evidence of genocide.

But preventing genocide isn’t just about stopping military atrocities against the Rohingya, including murder, rape, and torture, which peaked during a 2017 campaign of ethnic cleansing that forced more than 740,000 Rohingya to flee to neighboring Bangladesh.

Many of the government’s existing policies aimed at repressing the Rohingya may be evidence of ongoing genocide in Myanmar’s Rakhine State.

In analyzing the genocidal act of “[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,” the United Nations-backed Independent International Fact-Finding Mission on Myanmar pointed to the “oppressive and systemic restrictions” suffered by the Rohingya, including restrictions on freedom of movement, access to food, livelihood, health care, education, and regular blocking of humanitarian assistance.

In September 2019, UN special rapporteur on human rights in Myanmar Yanghee Lee found that Myanmar had “done nothing to dismantle the system of violence and persecution” against the Rohingya.

The 600,000 Rohingya still in Rakhine State – which the Fact-Finding Mission found faced “a greater threat of genocide than ever” – remain largely cut off from health care and desperately needed humanitarian aid, trapped in villages and open-air detention centers that Human Rights Watch recently warned are Covid-19 tinderboxes.

More than the recent presidential directives, Myanmar’s compliance with the ICJ order to prevent genocide requires urgent and concrete steps to roll back repressive measures that target the Rohingya. The very survival of the Rohingya in Rakhine State may depend on it.

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

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

When U.S. Secretary of State Mike Pompeo stepped to the State Department podium on March 17 to threaten possible sanctions, the targets were not, as you might expect, human rights abusers. Instead, Pompeo called out two staff members of the International Criminal Court (ICC) by name and signaled the U.S. was looking to take action against them, other ICC personnel, and even their family members.

The conduct that was the target of these threats was an investigation by the ICC — an international court of last resort — into war crimes and other serious crimes committed in connection with the war in Afghanistan, including those allegedly committed by U.S. military or CIA personnel. An ICC appeals chamber on March 5 overturned a pre-trial chamber decision and authorized the court’s prosecutor to open the probe, more than two years after her initial request.

Last year, the U.S. announced a policy of visa bans against certain ICC officials and revoked the ICC prosecutor’s visa in retaliation for the potential investigation. At the time, Pompeo said the U.S. could go further, including by imposing economic sanctions, if the ICC moved forward with investigations of U.S. nationals. He also signaled the U.S. could use its visa ban policy to deter ICC investigations of nationals of U.S. allies, including Israel (there is a separate possible ICC investigation into crimes committed in Palestine).

The U.S. is acting to undermine the legitimate work of a treaty-based international court that steps in only where national courts do not conduct genuine investigations or prosecutions of serious international crimes. It has a mandate in the 123 countries that are members and can also act in other countries when they agree or when a situation is referred by the U.N. Security Council, as in Darfur and Libya. The U.S. has never joined the court, but previous U.S. administrations have at times supported the court’s work. Current ICC investigations include examination of Myanmar’s ethnic cleansing campaign, which forced more than 700,000 Rohingya Muslims to flee into neighboring Bangladesh, an ICC member.

The ICC’s Afghanistan investigation will bring the Taliban’s indiscriminate attacks and Afghan government forces’ abuses under judicial scrutiny. This could help bolster prospects for peace in the country. Previous political transitions in Afghanistan ignored accountability and fed renewed cycles of violence as those responsible for the abuses retook positions of power. Victims have overwhelmingly supported an ICC investigation.

The ICC prosecutor will also examine serious abuses of detainees by CIA and U.S. military personnel. The court has jurisdiction because these abuses were committed in ICC member countries, including — in addition to Afghanistan — Lithuania, Poland, and Romania. There’s nothing unusual about this. U.S. citizens who commit crimes abroad are already subject to the jurisdiction of foreign courts, and the ICC draws from that authority.

As a result, the investigation is also a critical opportunity to finally address abusive U.S. government actions after 9/11 — which continue to have devastating consequences. The CIA’s abusive rendition, detention, and interrogation program has been well-documented, including by a nearly 7,000-page Senate intelligence committee report. All but a 500-page summary remains classified, signaling how reluctant some in the U.S. government have been to subject the program to public scrutiny.

There has been no meaningful action in U.S. courts to hold those responsible for CIA torture to account. To the contrary, people implicated in illegal conduct have been promoted. Among them is Gina Haspel, the current CIA director, who allegedly ran the CIA’s first “black site” in Thailand where detainees were tortured. Without real accountability, there is no reason to think the U.S. might not again resort to such illegal conduct. Indeed, last week in the midst of the country’s focus on the novel coronavirus, it was reported that the Justice Department had quietly sought congressional authorization to detain people indefinitely without charge or trial — a practice now in its eighteenth year at Guantanamo.

Only a handful of cases for detainee abuse have been pursued in the U.S., and even those were largely for lower-level personnel rather than officials who planned, authorized, and carried out  the U.S. torture program. So it seems unlikely that there will ever be any true criminal accountability in a U.S. court. Last year, President Trump reversed the demotion of the U.S. Navy SEAL Eddie Gallagher, who had been convicted of posing with the corpse of an alleged ISIS member, a violation both of the Geneva Conventions and Defense Department rules. Trump also pardoned two Army officers convicted of war crimes.

These actions suggest that accountability in the U.S. will be a long time coming. If there is an about-face, and the U.S. conducts genuine proceedings relevant to cases the ICC prosecutor is likely to pursue in her office’s Afghanistan investigation, it could challenge the admissibility of cases before the court. But unless and until that happens, the ICC has a critical role to play in ensuring that victims have a path to justice. Those in the U.S. government who support the rule of law should be embracing rather than condemning the prospect of accountability.

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

 

 

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

1. What is the International Criminal Court?

2. Is the US a member of the ICC?

3. What fair trial protections exist before the ICC?

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

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

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

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

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

9. Could the ICC open an investigation in Palestine?

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

11. Which countries support the ICC?

12. Has the ICC lived up to expectations?

Video

ICC: Victims of Atrocities Deserve Justice

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

1. What is the International Criminal Court?

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

The court has been in operation since 2003. It has opened more than two dozen cases based on investigations in 11 countries, most of which are ongoing. On March 5, 2020, the ICC appeals chamber authorized the court’s prosecutor to open an investigation in Afghanistan, which could include alleged crimes committed by the Taliban, Afghan National Security Forces, and United States military and Central Intelligence Agency (CIA) personnel. The ICC prosecutor is considering whether investigations are needed in another seven countries and has concluded there is a basis to proceed with an investigation into alleged serious crimes committed in Palestine, but has requested a ruling from the court’s judges on the scope of the ICC’s territorial jurisdiction.

2. Is the US a member of the ICC?

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

3. What fair trial protections exist before the ICC?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Under President Donald Trump’s administration, the US government has said that it will not cooperate with the ICC and has threatened retaliatory steps against ICC staff and member countries should the court investigate US or allied country citizens. Then National Security Adviser John Bolton first announced this approach in September 2018. Two weeks later, President Trump addressed the UN General Assembly stating that the “United States will provide no support or recognition to the International Criminal Court. As far as America is concerned the ICC has no jurisdiction, no legitimacy, and no authority.”

On March 15, 2019, US Secretary of State Mike Pompeo announced that the US would impose visa bans on ICC officials involved in the court’s potential investigation of US citizens for alleged crimes in Afghanistan. He indicated the same policy may be used to deter ICC efforts to investigate nationals of allied countries, including Israelis, and stated that the US would be prepared to take further actions, including economic sanctions, “if the ICC does not change its course.” The Trump administration confirmed in early April 2019 that it had revoked ICC Prosecutor Fatou Bensouda’s visa.

On March 17, 2020, US Secretary of State Mike Pompeo publicly threatened two staff members of the ICC, naming them and stating that he was “considering what the United States’ next steps ought to be with respect to these individuals and all those who are putting Americans at risk.” Pompeo said he wanted to identify people responsible for the investigation –and their family members –and implied he could seek actions against them. 

9. Could the ICC open an investigation in Palestine?

Since January 2015, the ICC prosecutor has been examining alleged serious crimes committed in Palestine since June 13, 2014, including war crimes and crimes against humanity, in what is known as a “preliminary examination.” On May 22, 2018, Palestine submitted a “referral” requesting the prosecutor investigate crimes under the ICC’s jurisdiction.

In December 2019, Bensouda the ICC prosecutor, concluded her preliminary inquiry, determining that “all the statutory criteria” to proceed with a formal investigation have been met. However, she then sought a ruling from the court’s judges on the scope of the ICC’s territorial jurisdiction. The matter is pending before the court.

Given strong evidence that serious crimes have been committed in Palestine since 2014, including the transfer of Israeli civilians into the occupied West Bank and alleged war crimes committed during the 2014 hostilities in Gaza by the Israeli military and Palestinian armed groups, Human Rights Watch has called on the ICC prosecutor to open a formal investigation of serious international crimes committed in Palestine by Israelis and Palestinians.

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

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

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

Video

ICC Turns 20: Reflections from Law Students Around the World

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

11. Which countries support the ICC?

The ICC has the backing of established and emerging democracies around the world. Its governing body, the Assembly of States Parties (ASP), currently consists of 123 countries that have ratified the Rome Statute: 33 from the Africa region, 19 from the Asia-Pacific region, 18 from Eastern Europe, 28 from the Latin American and Caribbean region, and 25 from Western Europe and North America.

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

Burundi withdrew from the ICC effective October 2017, and the Philippines’ notice of withdrawal came into effect in March 2019. An effort by the government of Kenya – at a time when its president and deputy president were facing charges before the court – to lead a mass withdrawal of African states from the treaty failed to materialize.

12. Has the ICC lived up to expectations?

The ICC has so far opened more than two dozen cases, and pre-trial or trial proceedings are ongoing in three cases. However, trials for war crimes and crimes against humanity have only been completed in a handful of cases, with four people convicted and four others acquitted. Some other cases have been dismissed for lack of evidence. Court officials have made a number of missteps and stronger investigations by the ICC prosecutor, better choices in the selection of cases, more efficient proceedings, and more effective outreach with victims and affected communities are needed. The court’s leadership took an important step forward in 2019, requesting an independent expert review of its performance. The review, conducted by a panel of nine experts, is expected to be completed by the end of September 2020.

The court also faces steep challenges in carrying out its mandate. Without a police force, it relies on states for cooperation in arrests, and that cooperation has been inadequate. Arrest warrants remain outstanding against 14 individuals. ICC member states have also held back on necessary budget increases even as the court’s workload has grown.

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

Posted: January 1, 1970, 12:00 am