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

Prominent human rights lawyer and investigator Reed Brody has told The Chronicle that the current allegations of abuse against ex-president Yahya Jammeh will make it harder for Equatorial Guinea to refuse to hand him over for trial when the time comes.

Brody, an American with Human Rights Watch, is part of a group which aims to bring the former president to justice for alleged atrocities and human rights abuses. He worked with the victims of former Chadian ruler Hissene Habre and was a key figure in the process of the trial that led to Habre’s conviction and imprisonment.

Brody is currently working with Gambian victims of the former regime. His latest project involved the investigation and documentation of rape and sexual assault allegations against Jammeh. He spoke to The Chronicle about this investigation.  

The Chronicle: Why did you undertake this investigation?

Reed Brody: When we started researching Jammeh’s alleged crimes, we had heard rumors about his abuse of women. It was an open secret, but no one had ever nailed the facts down. As you know Sheriff, in the Hissène Habré case, we were late in documenting sexual violence, just as prosecutors were late to raise sexual violence in Rwanda and even failed to raise it in many other situations.  I was determined not to let sex crimes be overlooked here. But researching this kind of issue requires persistence, patience, and especially sensitivity and empathy. Fortunately our lead researcher Marion Volkmann-Brandau showed these qualities in gaining the confidence of victims – especially two women we identified in our report as “Anta” and “Bintu” who accused Jammeh of raping or assaulting them.  And of course we interviewed Fatou (Toufah) Jallow, who was determined to make her story public. Fatoumatta Sandeng put us in touch with Toufah.

Who else did you interview?

We interviewed a number of Jammeh’s former aides, “insiders” with direct knowledge of his system – two men who worked for the Protocol Department at State House; four of his close protection officers; a woman who worked at State House, a former senior official at the National Intelligence Agency, and several others. Some of them are still in The Gambia and several are abroad. These insiders described Jammeh’s “system,” and showed us that the stories of Toufah, “Anta” and “Bintu” were not isolated cases, but were part of a pattern in which women would be pressured to visit or work for Jammeh and then abused.

What were your principal findings? 

We found credible evidence that Jammeh took advantage of his position to rape, sexually abuse and exploit women for sex. Some women were dragooned by Jammeh’s aides after he picked them out at events. Five former officials said that he ordered them and others to get the phone numbers of women he identified. Some women were put on the state payroll at State House, as so-called “protocol girls.” Jammeh gave these women cash and gifts and promised them scholarships or other privileges if they had sex with him.

How many women were involved? 

It’s really hard to know.  Several witnesses who worked at State House said that Jammeh had young women brought to him almost every night. There were about 10 “protocol girls” at any given time.  We were given the names of 16 women, but most refused to speak with us. I would think that what we could document is probably just the tip of the iceberg.

Some people questioned the authenticity of Toufah Jallow’s allegation that she was raped by Jammeh. What did you do to verify her account?

We checked out her story with multiple people with whom Toufah interacted right after the incident. When she fled to Senegal a few days later, she told her story to the United Nations, Amnesty International and Article 19.  They all have records of her account.  Toufah signed a waiver allowing access to her files with the Canadian immigration and refugee authorities. We also spoke to her family and to those who helped her escape. What Toufah is saying now is what she described back then, days after the event.

The outlines of Toufah’s account also match the experiences of “Anta” and “Bintu,” who she didn’t know. In each case, it was the same driver who picked them up; in each case it was Jammeh’s cousin Jimbee who befriended them, phoned them, had them brought to State House, took them to Jammeh, and stayed with them and the president in his room before leaving them alone.

Your hashtag #IamToufah has gone viral. What do you think of the reaction in Gambia to Toufa’s alleged revelations? 

I never expected that. It was so gratifying. It was like a taboo had been lifted and every woman had a story to tell.  And many men have come out to support them. The Attorney General Ba Tambedou showed real leadership by praising Toufah and calling on others to come forward. New groups are forming, including an organization that Toufah is founding.

What comes next?

The TRRC will hold hearings on sexual violence later this year, and has reached out to women to give statements in ways that preserve their safety and dignity and protect them from retaliation. Toufah, of course, plans to speak in open session. Last year, the TRRC organized a series of women-only listening circles bringing victims together to share privately their traumatic experiences.  So, I hope that our report and Toufah’s declarations were part of a conversation which will continue at the TRRC and in many other ways.

And holding Jammeh to account?

These revelations are going to make it harder for Equatorial Guinea to refuse to hand Jammeh over when the time comes.  Thanks to the TRRC and the courage of the victims, we are learning more each day about Jammeh’s alleged crimes: multiple allegations by Jammeh’s henchmen at the TRRC that he personally ordered killings; the phony “HIV treatment” program; evidence that Jammeh’s “Junglers “ were behind the massacre of 56 migrants from Ghana, Senegal, Togo, Cote d’Ivoire and Nigeria; attacks on journalists; and now rape.

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

Abdul Kareem, a Rohingya Muslim, carries his mother, Alima Khatoon, to a refugee camp after crossing from Burma into Bangladesh on Sept. 16, 2017.

© 2017 Dar Yasin/AP

Twenty-one years ago today, 120 countries adopted the Rome Statute of the International Criminal Court (ICC), creating a permanent international court to hold perpetrators of the world’s gravest crimes to account. The anniversary is a moment to reflect on the successes and challenges of bringing justice to victims over the past year.

With armed conflicts raging across the globe and devastating civilian populations, demand for accountability is growing. In Liberia, citizens and civil society groups are calling on President George Weah to support the creation of a war crimes court to provide justice for atrocities committed during the country’s two civil wars.

In the Central African Republic, the Special Criminal Court has finally opened investigations into abuses committed during the years-long conflict there. Several prosecutors in Europe are investigating and bringing to trial atrocity crimes cases committed in countries such as Syria and Iraq, where the ICC has no jurisdiction. Some governments are also attempting to fill this gap by creating teams of independent investigators to examine crimes in Syria and Myanmar.

At the ICC, two suspects of grave crimes in the Central African Republic, Patrice Edouard Ngaissona and Alfred Yékatom, were arrested and transferred to the court. Earlier this month, the ICC prosecutor filed a request to open an investigation into certain crimes against ethnic Rohingya arising from government atrocities in Myanmar. Last week, ICC judges convicted Congolese warlord Bosco Ntaganda for war crimes and crimes against humanity, and began hearings for the confirmation of charges in the case against Al Hassan for crimes in northern Mali.

But there have also been serious setbacks for victims awaiting justice from the court. In January, ICC judges dismissed the case against former Ivorian president Laurent Gbagbo and the written reasons for the oral decision were only filed on July 16. In April, judges rejected the prosecutor’s request to open an investigation in Afghanistan on a problematic legal basis. In the face of evident shortcomings, the court needs to step up its performance.

The ICC is also facing unprecedented threats from the United States. In March, the Trump administration threatened visa bans on ICC staff if the court began investigating US nationals for alleged crimes in Afghanistan, and then proceeded to revoke the prosecutor’s visa in April. 

While challenges to securing accountability around the world persist, 21 years after the completion of the Rome Statute, the victims’ need for justice and an effective court are greater than ever.

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

(New York) – Member countries of the International Criminal Court (ICC) should renew their commitment on International Justice Day, July 17, 2019, to defend and strengthen this important justice institution, Human Right Watch said today. On July 17, 1998, 120 countries adopted the Rome Statute creating the ICC.

“Twenty-one years after its creation, the International Criminal Court is needed more than its founders ever imagined,” said Richard Dicker, international justice director at Human Rights Watch. “Despite the challenges the court is facing, its mandate and founding aspirations remain vitally important.”

The anniversary is occurring during the meeting of the United Nations High-level Political Forum on Sustainable Development in New York. Sustainable Development Goal 16 (SDG 16) on peace, justice, and strong institutions, is one of the goals under review at this year’s session. SDG 16 highlights the strong link between sustainable development and the rule of law. The court, as the centerpiece of the Rome Statute system’s evolving network of accountability for atrocity crimes, can contribute to reaching SDG 16 by prosecuting the world’s worst crimes, promoting the rule of law, and providing access to justice for victims.

In today’s difficult international landscape, the ICC is a fragile, yet crucial component of the rules-based global order. It is currently facing serious challenges resulting from its own missteps, as well as external threats to its independence. In the past year, the court’s performance shortcomings have become evident, underscoring the need for changes in policy and practice, Human Rights Watch said.

On January 15, ICC trial judges acquitted former Ivorian president Laurent Gbagbo, finding that the prosecution had not presented sufficient evidence for the case to proceed. While acquittal is a legitimate and necessary outcome if the prosecution’s evidence does not establish a suspect’s guilt beyond reasonable doubt, the written reasons were only filed on July 16, six months after the oral decision.

On April 12, a pretrial chamber unanimously rejected the request by the prosecutor to investigate serious crimes committed during the armed conflict in Afghanistan since May 2003. The judges found that such an investigation would not be in “the interest of justice” because “the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited.” This problematic interpretation of “interest of justice” injected political and practical considerations into a judicial decision.

These decisions and other recent developments have highlighted shortcomings at the court that also include the pace of judicial proceedings, management of victim expectations, lack of cooperation, and inadequate resources. Moreover, with preliminary examinations ongoing in 10 countries and investigations underway in 10 more, the prosecutor’s docket far outstrips the reach of current and foreseeable staff capacity.

These issues need to be addressed forthrightly rather than backing away from the court’s mission. An appropriate step toward meaningful change in the court’s policy and practice would be the creation of an independent expert group tasked with assessing a select number of issues confronting the court, Human Rights Watch said.

Other international and hybrid tribunals have undertaken similar independent expert assessments, namely the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, as well as the Special Court for Sierra Leone.

At the ICC Assembly of States Parties session in late 2020, there will be significant changes in court leadership, including the election of a new prosecutor and six new judges. An independent expert assessment would provide an important basis to inform these elections while also providing a set of recommendations to guide the incoming prosecutor and judges, Human Rights Watch said.

The court is also facing serious external challenges. Hostile non-member states are seeking to obstruct ICC investigations and weaken its independence.

Under the Trump administration the US government launched an unprecedented attack against the ICC. On March 15, US Secretary of State Michael Pompeo announced that the US would impose visa bans on ICC officials involved in the court’s potential investigation of US citizens for alleged crimes in Afghanistan. He indicated the same policy may be used to deter ICC efforts to investigate nationals of allied countries, including Israelis. In early April, the US revoked the ICC prosecutor’s visa.

Given the prosecutor’s request to appeal the decision that rejected opening an investigation in Afghanistan, as well as the ongoing preliminary examination in Palestine, no one should expect changes in the US administration’s approach toward the court. It is critical for ICC member states to push back against Washington’s pressure to blunt the threat to judicial independence and any chilling effect on the court’s work, Human Rights Watch said.

“Change at the court is needed because the values underlying the Rome Statute system far exceed in importance the ICC’s performance shortcomings,” Dicker said. “Court officials, ICC member states, and civil society groups need to meet the challenges head on by strengthening ICC practice and providing much more robust state support.”

Posted: January 1, 1970, 12:00 am

Relatives of disappeared persons participate in a silent protest, demanding an investigation into the disappearances of people in Kashmir. 

© 2019 AP Photo/ Dar Yasin
(New York) – India and Pakistan should act on the recommendations of the United Nations human rights office to protect basic rights in the contested region of Kashmir, Human Rights Watch said today.

The 43-page report by the Office of the UN High Commissioner for Human Rights (OHCHR), released on July 8, 2019, raises serious concerns about abuses by state security forces and armed groups in both Indian and Pakistan-held parts of Kashmir. The Indian government dismissed the report as a “false and motivated narrative” that ignored “the core issue of cross-border terrorism.” Pakistan welcomed the report but requested that sections be removed or amended in which the information was “not specific to Pakistan-Administered Kashmir but were general human rights concerns affecting all of Pakistan.”

“India and Pakistan blame each other for human rights violations in Kashmir while ignoring their own responsibility for abuses,” said Meenakshi Ganguly, South Asia director. “Authorities in both countries should use the opportunity created by the UN report to change course and hold accountable those who’ve committed serious abuses.”

India and Pakistan blame each other for human rights violations in Kashmir while ignoring their own responsibility for abuses.

Meenakshi Ganguly

South Asia Director

The OHCHR said both India and Pakistan had failed to take any clear steps to address and implement the recommendations made in its June 2018 report, the office’s first-ever on human rights in Kashmir. The latest report comes after a deadly attack in February by a Pakistan-based armed group, Jaish-e-Mohammad, that targeted a security forces convoy in Kashmir, killing 40 Indian soldiers. Military escalation between India and Pakistan ensued, including cross-border shelling at the Line of Control (LoC), the de-facto international border in disputed Kashmir.

The Srinagar-based Jammu and Kashmir Coalition of Civil Society reported that conflict-related casualties were the highest in 2018 since 2008, with 586 people killed, including 267 members of armed groups, 159 security forces personnel, and 160 civilians. The Indian government asserted that 238 militants, 86 security forces personnel, and 37 civilians were killed.

The OHCHR found that Indian security forces often used excessive force to respond to violent protests that began in July 2016, including continued use of pellet-firing shotguns as a crowd-control weapon even though they have caused a large number of civilian deaths and injuries. The Indian government should review its crowd control techniques and rules of engagement, and publicly order the security forces to abide by the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

The report also decried the lack of justice for past abuses such as killing and forced displacement of Hindu Kashmiri Pandits, enforced or involuntary disappearances, and alleged sexual violence by Indian security forces personnel. It expressed concern over excessive use of force during cordon and search operations, resulting in civilian deaths as well as new allegations of torture and deaths in custody.

The OHCHR noted that India’s Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA) “remains a key obstacle to accountability,” because it provides effective immunity for serious human rights violations. Since the law came into force in Kashmir in 1990, the Indian government has not granted permission to prosecute any security force personnel in civilian courts.

The UN human rights office also said that India should amend its Public Safety Act, an administrative detention law that allows detention without charge or trial for up to two years. The law has often been used to detain protesters, political dissidents, and other activists on vague grounds for long periods, ignoring regular criminal justice safeguards.

In July 2018, the Indian state government of Jammu and Kashmir amended section 10 of the Public Safety Act, removing the prohibition on detaining permanent residents of Jammu and Kashmir outside the state. At least 40 people, mainly separatist political leaders, were transferred to prisons outside the state in 2018, the OHCHR said. It said that transferring detainees outside the state makes it harder for family members to visit and for legal counsel to meet with them. It also noted that prisons outside the state were considered hostile for Kashmiri Muslim detainees, especially separatist leaders.

The UN human rights office said that armed groups were responsible for human rights abuses including kidnappings, killings of civilians, sexual violence, recruitment of children for armed combat, and attacks on people affiliated or associated with political organizations in Jammu and Kashmir. It cited the Financial Action Task Force (FATF), an inter-governmental organization that monitors money laundering and terrorist financing, which has called on Pakistan to address its “strategic deficiencies.” India has long accused Pakistan of providing material support, arms, and training to the militant groups. Attacks in Kashmir have resulted in more than 50,000 deaths since 1989.

The OHCHR also found that human rights violations in Pakistan-held Kashmir included restrictions on the right to freedom of expression and association, institutional discrimination against minority groups, and misuse of anti-terrorism laws to target political opponents and activists. It noted threats against journalists for doing their work. The UN human rights office also expressed concern over enforced disappearances of people from Pakistan-held Kashmir, noting that victim groups alleged that Pakistani intelligence agencies were responsible for the disappearances.

“The Indian government’s rejection of the latest UN report on human rights in Kashmir shows that it’s unwilling to confront its own human rights failures,” Ganguly said. “Both India and Pakistan should accept the findings of the report and invite an independent investigation to help end serious abuses in Kashmir.”

Posted: January 1, 1970, 12:00 am

Video

Video: Verdict on Former Congolese Warlord

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

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

On July 8, 2019, a panel of three judges unanimously found Ntaganda guilty of 13 counts of war crimes and 5 counts of crimes against humanity committed in Ituri, eastern Congo, in 2002 and 2003. The charges included murder and attempted murder, rape, sexual slavery, attacking civilians, pillaging, displacement of civilians, attacking protected objects, and recruiting and using child soldiers. The judges found that Ntaganda and others agreed on a common plan to attack and drive the ethnic Lendu population out of Ituri through the commission of crimes. Human Rights Watch issued a question-and-answer document on Ntaganda’s trial.

“The long-awaited judgment provides an important measure of justice for Bosco Ntaganda’s victims and puts others responsible for grave crimes on notice,” said Maria Elena Vignoli, international justice counsel at Human Rights Watch. “But renewed violence in eastern Congo highlights the need to address the impunity for other abusive leaders.”

The resurgence of violence in Ituri since early June has left scores dead and displaced more than 300,000 people.

During earlier fighting in Ituri, Ntaganda was chief of military operations of the Union of Congolese Patriots (Union des patriotes congolais, UPC), a predominantly ethnic Hema armed group. The UPC was led by Thomas Lubanga, who was convicted by the ICC in 2012 for using child soldiers. Between 2002 and 2005, forces under Ntaganda’s command were implicated in many serious crimes, including ethnic massacres, torture, rape, and the widespread recruitment of children, some as young as seven. The ICC issued two arrest warrants against Ntaganda, one in 2006 and one in 2012. Ntaganda surrendered to the United States embassy in Kigali, Rwanda in March 2013.

If upheld on appeal, the case could become the first final conviction at the ICC for crimes of sexual violence, including against men. In addition to crimes against Lendu, the court found Ntaganda guilty of the war crimes of rape and sexual slavery against members of the UPC. This is the first time the ICC has convicted a commander for sexual violence offenses committed by his troops against other members of the same force.

Human Rights Watch documented ethnic massacres, killings, rape, torture, and recruitment of child soldiers by troops under Ntaganda’s command in the Kivus, and called for these charges to be added to his case at the ICC. However, his trial, which began in September 2015 and concluded in August 2018, only dealt with crimes related to the Ituri conflict.

In May 2019, Ntaganda filed a request to disqualify Judge Kuniko Ozaki, who in early 2019 briefly acted as Japanese ambassador to Estonia while still serving on the Ntaganda case. Ntaganda’s lawyers argued that the appearance of her judicial independence and impartiality had been compromised. In June 2019, a plenary of judges rejected the request, finding that the circumstances of Judge Ozaki’s tenure as ambassador did not disqualify her.

The court will schedule hearings in the coming weeks to determine Ntaganda’s sentence and reparations for victims. It should take all necessary steps to ensure that affected communities in Congo learn about the judgment and next steps, including participating in the reparations proceedings, Human Rights Watch said.

Ntaganda was the fourth person the ICC prosecuted for grave crimes in Congo. A fifth ICC arrest warrant is pending against Gen. Sylvestre Mudacumura, the military leader of a largely Rwandan Hutu armed group active in Congo, the Democratic Forces for the Liberation of Rwanda (FDLR). Congolese authorities, with the help of United Nations peacekeepers, should act urgently to arrest Mudacumura and surrender him to the ICC, Human Rights Watch said.

The number and stature of Congo-related cases before the ICC have not addressed the scale of the crimes committed in the country since 2002, when the court’s jurisdiction started. Human Rights Watch has repeatedly urged the ICC prosecutor to expand the investigation in Congo to include, for example, the role of senior political and military officials from Congo, Rwanda, and Uganda who supported, armed, and financed abusive armed groups in eastern Congo over the years, as well as other crimes, including those committed in the attacks that began in Beni, North Kivu, in October 2014.

The ICC prosecutor should formulate a clear strategy to address outstanding accountability needs in Congo, including by supporting Congolese authorities. This will help reinforce the rule of law and address Congo’s recurrent cycles of violence. The court, in turn, needs strong long-term support from ICC member countries, which should allocate sufficient resources to meaningfully address the court’s growing workload, Human Rights Watch said.

“The verdict against Ntaganda is important, but thousands of victims of atrocity crimes in Congo still await justice,” Vignoli said. “The ICC and Congolese authorities should work together to bring to trial many more of those responsible for grave crimes, including senior officials.”

Timeline on Bosco Ntaganda:

1973

Born in Kinigi, Rwanda.

1990

Joins Rwandan Patriotic Front (RPF) rebels in southern Uganda.

1994

Fights with RPF to end the Rwandan genocide and joins the Rwandan Patriotic Army (RPA).

1996

First Congo War begins - participates on the side of the RPA/Alliance of Democratic Forces for the Liberation of Congo (AFDL).

1997

Joins the Congolese army.

1998

Second Congo War begins - joins the Rwandan backed Rally for Congolese Democracy (RCD) rebels in Goma.

1999

RCD splits. Joins the RCD-K-ML splinter faction in Kisangani.

1999/2000

Moves to Bunia, Ituri district, with the RCD-K-ML rebels.

2002

RCD-K-ML splinters. Joins the Union of Congolese Patriots (UPC) rebels.

2005

Joins the Revolutionary Movement of Congo (MRC) rebels, but the militia group is short-lived.

Nov 2005

Placed on UN sanctions list for violating arms embargo.

2005/2006

Joins the National Congress for the Defense of the People (CNDP) rebels and moves to Masisi, North Kivu.

Aug 2006

ICC issues sealed arrest warrant for Ntaganda for war crimes committed in Ituri.

April 2008

ICC arrest warrant for Ntaganda is made public.

Jan 2009

Overthrows Laurent Nkunda with the backing of Rwanda and takes over leadership of the CNDP.

2009

Promoted to general in the Congolese army and appointed as deputy commander of military operations in eastern Congo.

2011

Appointed acting commander of military operations.

March 2012

Ntaganda’s co-accused, Thomas Lubanga, found guilty of war crimes at the ICC.

April 2012

Ntaganda urges his loyalists to mutiny and desert the Congolese army, creating the March 23 Movement (M23).

July 2012

ICC issues second arrest warrant for Ntaganda for war crimes and crimes against humanity committed in Ituri.

March 2013

Surrenders himself to the US embassy in Kigali, Rwanda, after the M23 breaks apart, and is transferred to the ICC.

February 2014

Confirmation of charges hearing.

June 2014

The Pre-Trial Chamber of the ICC unanimously confirms 18 charges against Ntaganda for war crimes and crimes against humanity.

September 2015

Trial against Ntaganda begins.

August 2018

Trial against Ntaganda ends.

July 2019

Convicted on all 18 counts of war crimes and crimes against humanity

Posted: January 1, 1970, 12:00 am

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

Posted: January 1, 1970, 12:00 am

Bosco Ntaganda sits in the courtroom of the International Criminal Court during the closing statements of his trial in The Hague, Netherlands, August 28, 2018. 

© 2018 Bas Czerwinski/Pool via AP
(New York) – Human Rights Watch released today a question-and-answer document on the trial of the former Congolese general and armed group leader Bosco Ntaganda before the International Criminal Court (ICC). The court’s verdict in the case is scheduled for July 8, 2019.

Ntaganda is charged with alleged war crimes and crimes against humanity committed in Ituri, in northeastern Democratic Republic of Congo, in 2002 and 2003. The ICC issued two arrest warrants against him, one in 2006 and one in 2012, but he remained at large for nearly seven years before surrendering in March 2013. Ntaganda is the fourth person to be tried by the ICC for international crimes committed in Congo.

The Q&A provides background on the case against Ntaganda, next steps in the proceedings, and the work of the ICC in Congo.

“The trial against Bosco Ntaganda is a powerful reminder to warlords in Congo that they too could face prosecution,” said Maria Elena Vignoli, international justice counsel at Human Rights Watch. “At the same time, this case highlights the need for the ICC and Congolese authorities to do more to bring justice for atrocities in Congo.”

Posted: January 1, 1970, 12:00 am

Bosco Ntaganda sits in the courtroom of the International Criminal Court during the closing statements of his trial in The Hague, Netherlands, August 28, 2018. 

© 2018 Bas Czerwinski/Pool via AP
On July 8, 2019, a panel of three judges of the International Criminal Court (ICC) is due to deliver its verdict in the case against Bosco Ntaganda for alleged war crimes and crimes against humanity in Ituri, northeastern Democratic Republic of Congo, in 2002 and 2003.

Ntaganda, an armed group leader who had fought with various armed groups and was later a Congolese army general, was implicated in grave crimes in eastern Congo for over a decade. The ICC issued an arrest warrant against him in 2006, but he remained at large for almost seven years before surrendering in March 2013. His trial started in September 2015.

Ntaganda is the fourth person to be tried by the ICC for grave international crimes in Congo. Sylvestre Mudacumura, the military commander of another armed group responsible for widespread violations in eastern Congo, has been wanted by the ICC since 2012 for war crimes allegedly committed between 2009 and 2010. He remains at large.

The following questions and answers address Ntaganda’s trial, next steps in the proceedings, and the work of the ICC in Congo.

  1. Who is Bosco Ntaganda?
  2. What crimes has Ntaganda been tried for?
  3. What happened in Ituri?
  4. What other crimes did Ntaganda allegedly commit after 2003?
  5. Why are Ntaganda’s trial and upcoming verdict significant?
  6. How long was Ntaganda’s trial?
  7. Did victims participate in the trial?
  8. Were people in Congo able to follow the proceedings in The Hague?
  9. What happens after the verdict?
  10. Will victims receive reparations?
  11. What else is the ICC doing in Congo and what more should it do?
  12. What are Congolese authorities doing to address impunity for grave international crimes?

 

  1. Who is Bosco Ntaganda?

Bosco Ntaganda was born in 1973 in Kinigi, Rwanda. He fled to Congo as a teenager amid attacks on ethnic Tutsi in Rwanda. He began his military career in 1990 in the Rwandan Patriotic Front (RPF), a Rwandan rebel group then based in Uganda. The RPF went on to bring an end to the Rwandan genocide in 1994 and formed the government that is still in power in Rwanda. Ntaganda then joined the Rwandan Patriotic Army (the army formed by the RPF) and participated in the Rwandan military invasion of Congo in 1996.

In 1998, during the “second Congo war,” he joined a Congolese armed group backed by Rwanda, the Rally for Congolese Democracy (Rassemblement congolais pour la démocratie, RCD). He subsequently moved among various Congolese militias before joining the Union of Congolese Patriots (Union des patriotes congolais, UPC) in 2002. The UPC was an armed group that purported to further the interests of the Hema ethnic group in the former Ituri district.

From 2002 to 2005, Ntaganda served as chief of military operations under the UPC’s leader, Thomas Lubanga. During that period, forces under Ntaganda’s command were implicated in many serious abuses, including ethnic massacres, torture, rape, and the widespread recruitment of children, some as young as 7.

Lubanga was the first person to go to trial before the ICC. He was convicted in 2012 for recruiting and using child soldiers in Ituri and sentenced to 14 years in prison. His conviction was confirmed on appeal in December 2014. Ntaganda was the co-accused in that case but eluded justice until he surrendered in 2013.

During that time, Ntaganda continued to lead troops responsible for grave abuses and received significant support from backers in the Rwandan military.

  1. What crimes has Ntaganda been tried for?

Ntaganda has been tried for 13 counts of war crimes and five counts of crimes against humanity. These include murder and attempted murder, rape, sexual slavery, attacking civilians, pillaging, displacement of civilians, attacking protected objects, and enlisting and conscripting child soldiers under age 15 and using them to participate actively in hostilities - all allegedly committed in the context of the armed conflict in Ituri in 2002 and 2003.

In the first ICC arrest warrant issued in August 2006, Ntaganda, like Lubanga, was only charged with the war crimes of recruiting and using child soldiers. In July 2012, the ICC issued a second arrest warrant against Ntaganda, which included four additional counts of war crimes and three additional counts of crimes against humanity. The ICC prosecutor later added more charges. The final expanded set of charges was more representative of the range of grave crimes the UPC allegedly committed in Ituri and partly addressed concerns raised by Congolese activists and Human Rights Watch about the narrow scope of the cases against Ntaganda and Lubanga.

Ntaganda’s trial did not cover crimes allegedly committed by troops under his command in other parts of Congo after 2003. In 2006, after leaving the UPC, Ntaganda moved to North Kivu province in eastern Congo and remained there until he surrendered in 2013. During this period, Human Rights Watch documented ethnic massacres, killings, rape, torture, and recruitment of child soldiers by armed groups or Congolese army units under Ntaganda’s command. Human Rights Watch said that these crimes should be included in the charges against Ntaganda, but they were not.

  1. What happened in Ituri?

The Ituri district, which became a province in 2015, has been one of the worst-affected areas in eastern Congo’s prolonged conflict. Localized fighting between the Hema and Lendu ethnic groups, which began in 1999 over land disputes, expanded after Ugandan military forces backed Congolese armed groups. As the conflict spiraled and armed groups multiplied, more than 60,000 civilians died. Competition for the region’s lucrative gold mines and trading routes was a major factor contributing to the fighting. Foreign armies and local militia groups fought each other and committed numerous violations, often targeting civilians. Armed groups, such as Ntaganda’s UPC, carried out widespread ethnic killings, torture, and rape.

Human Rights Watch documented serious human rights violations in Ituri in the early 2000s, including in three reports, published in 2001, 2003, and 2005. While the situation became more stable in the years that followed, armed groups remained active in some parts of Ituri. In December 2017, a new wave of violence erupted in Ituri’s Djugu territory. Armed groups carried out deadly attacks on villages, killing scores of civilians, raping or mutilating many others, torching hundreds of homes, and displacing an estimated 350,000 people. The situation in Djugu remained volatile. In early June 2019, communal violence between the Hema and the Lendu resurfaced in several parts of Ituri, leaving scores of people dead and displacing over 300,000.

  1. What other crimes did Ntaganda allegedly commit after 2003?

In 2006, Ntaganda became military chief of staff of the National Congress for the Defense of the People (Congrès national pour la défense du peuple, CNDP), a Tutsi-led rebel group in North Kivu, backed by Rwanda. Among other grave abuses, CNDP troops under Ntaganda’s command massacred an estimated 150 people in the town of Kiwanja in late 2008.

In early 2009, following an agreement between the Rwandan and Congolese governments, CNDP fighters were integrated into the Congolese army and Ntaganda became a general and deputy commander of military operations in eastern Congo. Army troops under Ntaganda’s command carried out numerous attacks on civilians, killing and raping them and burning homes. In 2009 alone, Human Rights Watch documented the killings of more than 730 civilians by  army soldiers and their allies during military operations against the Democratic Forces for the Liberation of Rwanda (Forces démocratiques de libération du Rwanda, FDLR), a largely Rwandan Hutu armed group, some of whose members participated in the 1994 genocide in Rwanda.

From 2009 to 2011, Ntaganda led a brutal campaign against perceived military and civilian opponents, recruited child soldiers and thwarted efforts to demobilize them, blocked judicial investigations into violations by people loyal to him, and used his influence in the military to confiscate land and increase his wealth.

In April 2012, Ntaganda and his loyal subordinates defected and formed a new rebel group, the March 23 Movement (Mouvement du 23 mars, M23), which committed numerous grave abuses, including summary executions, rape, and recruitment of child soldiers. Ntaganda surrendered to the United States embassy in Kigali, Rwanda in March 2013 and was transferred to the ICC. After the defeat of the M23 later in 2013, M23 commanders and many of their troops fled to neighboring Rwanda and Uganda. Congolese authorities issued arrest warrants for several senior M23 leaders on charges of war crimes and crimes against humanity, but none have been arrested.

Human Rights Watch documented that Congolese senior security force officers in Congo mobilized over 200 former M23 rebel fighters from neighboring countries to quash protests against then-President Joseph Kabila in December 2016.

  1. Why are Ntaganda’s trial and upcoming verdict significant?

Although he was wanted by the ICC, Ntaganda lived freely in eastern Congo for seven years in full view of Congolese government officials, United Nations peacekeepers, and foreign diplomats. The fact that Ntaganda is facing justice at the ICC is highly significant for the thousands of people across eastern Congo who have suffered, witnessed, or documented serious abuses allegedly committed by him and troops under his command.

The trial also sends a strong warning to other abusive commanders still active in Congo. Ntaganda’s military career moving from one armed group to the other, with occasional integration into the Congolese army, resembles those of other rebel leaders whom the Congolese government has often rewarded with positions, wealth, and power while civilians suffer. That Ntaganda remained free for so long shows that grave abuses often continue while impunity persists. Seeing Ntaganda in the dock and judged by the ICC is a powerful reminder to other leaders of abusive armed groups that they too could face prosecution.

The case against Ntaganda also puts into focus some of the changes the current prosecutor, Fatou Bensouda, made after taking office in 2012. Around that time, the prosecution’s office had suffered a number of setbacks in moving cases to trial, and Bensouda announced changes aimed at improving the quality of investigations and prosecutions. These included a shift from focused investigations to more in-depth, open-ended investigations while maintaining focus and a commitment to present cases at the confirmation hearing that are trial ready. The office publicly credited these changes when all of the charges against Ntaganda, including additional charges added by the prosecution following his surrender, were confirmed.

It is important to note, though, that the prosecution also applied these changes in pretrial proceedings to its cases against Laurent Gbagbo and Charles Blé Goudé in the Côte d’Ivoire situation. Both were acquitted in January 2019. The judges have yet to issue written reasons. Comparison of the Gbagbo/Blé Goudé and Ntaganda cases may shed further light on court practice and areas for improvement.

The addition of charges to the case against Ntaganda addressed a number of concerns with the initial framing of the case:

  • Adding and investigating new charges: The additional charges brought against Ntaganda acknowledged the suffering of victims from both ethnic groups, the Hema and the Lendu, enabling them to participate in proceedings at the ICC and to pursue reparations (for more information on the new charges, see question 2).
     
  • Focusing on sexual and gender-based crimes: The additional charges against Ntaganda also included crimes of sexual violence. If Ntaganda is convicted for these charges and the verdict is upheld on appeal, this could become the first final conviction for such crimes at the ICC. Ntaganda was tried for the war crimes and crimes against humanity of rape and sexual slavery. These include crimes against members of Ntaganda’s own armed group, the UPC. Judges in the Ntaganda case provided a new interpretation of the war crimes of rape and sexual violence, affirming that the protection against sexual violence under international law is not limited to members of the opposing armed forces who are out of combat or civilians not directly participating in hostilities. It also includes members of the same armed forces as those responsible for such crimes.

At the same time, however, the Ntaganda case failed to address other crimes allegedly committed by Ntaganda and troops under his command in the Kivus, highlighting some of the outstanding issues and gaps in the ICC’s approach to its investigations in Congo (see question 11).

  1. How long was Ntaganda’s trial?

Trials of grave crimes meeting international fair trial standards are complex and inevitably take time. The pretrial proceedings took over a year, and the trial itself took three years.

Ntaganda turned himself in to the United States embassy in Kigali, Rwanda, on March 18, 2013 and was transferred to the ICC on March 22. The hearing for the confirmation of charges took place in February 2014. The pretrial chamber unanimously confirmed the charges against Ntaganda in June 2014.

The trial started in September 2015 and closing arguments took place in The Hague in August 2018. There were 248 hearings and a total of 102 witnesses called by the prosecutor, the defense, and the legal representatives for victims.

In May 2019, Ntaganda filed a request to disqualify one of the judges on the bench, Judge Kuniko Ozaki, because she briefly acted as Japanese ambassador to Estonia while serving as a judge in the Ntaganda case in March and April 2019. Ntaganda argued that the appearance of her judicial independence and impartiality had been compromised and her subsequent resignation from the diplomatic posting was insufficient to restore it. On June 20, a plenary of judges rejected the request for disqualification, finding that the circumstances of Judge Ozaki’s tenure as ambassador did not satisfy the threshold necessary to rebut the presumption of impartiality.

  1. Did victims participate in the trial?

A total of 2,123 victims were authorized to participate in Ntaganda’s trial.

The Rome Statute, founding treaty of the ICC, put in place an innovative system of victim participation before an international criminal tribunal. Through this system, victims of the alleged crimes can make their “views and concerns” known to the judges. Victim participation is an important feature of the ICC that can contribute to bridging the gap between victims and a court located thousands of kilometers from where the crimes were committed.

As participants, victims have standing in their own right, although usually through a lawyer appointed to represent a group of victims, known as a “common legal representative.” Few victims, if any, appear before the court in person. In the Ntaganda trial, five participating victims presented their views and concerns in person and three appeared as witnesses.

The participating victims were divided into two groups: one consisting of former UPC child soldiers and their relatives, and the other of victims of UPC attacks and their relatives. The creation of two distinct groups followed victim applicants’ concerns that victims of the two main ethnic groups involved in the conflict in Ituri – the Hema and Lendu –might have different views. Each group of victims was represented by a common legal representative through which they expressed their views on matters heard during the trial and were authorized to examine witnesses on specific issues.

  1. Were people in Congo able to follow the proceedings in The Hague?

The ICC, with its headquarters in The Hague, is far from the sites of the crimes it has adjudicated. It faces the challenge of making sure that its proceedings are accessible to the communities most affected by these crimes and that victims are informed of their rights. Dedicated court outreach efforts are essential and key to ensuring meaningful justice.

Since 2004, the ICC’s Registry has worked to ensure that information about ICC proceedings reaches affected communities in Congo, as well as journalists, human rights activists, lawyers, and judicial staff.

In the Ntaganda case, the judges explored the possibility of holding the opening and closing statements in Congo, to bring the judicial work of the court closer to the Congolese people. But in June 2015, the ICC presidency decided not to hold the opening statements in Congo, and in March 2018, the trial judges reached the same conclusion regarding the closing statements. Both sets of judges cited prevailing insecurity, concerns for the safety and well-being of victims and witnesses, and the financial cost.

While holding the hearings in Congo may have required additional financial resources, victims would have greatly benefitted from being closer to the activities of the court. The security situation in Bunia, Ituri’s capital, had been calm for years and only started worsening in February 2018. Arrangements could have been made in partnership with the UN peacekeeping mission in Congo (MONUSCO) and the Congolese government to ensure the safety and well-being of witnesses and victims.

For the opening of the trial, the Registry screened video summaries of the opening statements in Bunia and broadcasted an audio version of the summaries in several languages through a network of radios in Ituri. It is difficult to assess whether all the affected communities, including those in remote areas, were in fact able to access these radio programs. Video summaries of the opening statements were also shown in town hall meetings with affected communities in Ituri.

The Registry, with the support of MONUSCO, broadcasted live the trial’s opening statements in Goma, North Kivu, and Kinshasa, the country’s capital, but faced connectivity issues due to a poor internet network. Other activities around the opening of the trial with civil society, students, and journalists were carried out in Goma and Bukavu, South Kivu, with the aim of managing expectations regarding the scope of the case.

The Registry told Human Rights Watch that it tried to keep the main stakeholders informed of developments in the proceedings throughout the trial, including through radio programs in local languages, in-person meetings, and video summaries. However, the outbreak of Ebola in North Kivu and the volatile security situation in Ituri has at times slowed down or hindered these activities.

The Registry is planning to carry out similar outreach initiatives around the verdict.

  1. What happens after the verdict?

After the judgment is issued, the prosecutor and the defense have 30 days to appeal on the basis of a procedural error, an error of fact or law, or any other grounds that affect the fairness or reliability of the proceedings or the decision. Appeals proceedings are likely to last several months, depending on the grounds for appeal.

In the meantime, if Ntaganda is found guilty of some or all the charges against him, he will remain in detention and the trial chamber will hold hearings to determine the sentence against him and reparations for victims.

If Ntaganda is acquitted of all charges, the statute of the ICC provides for the immediate release of the detainee. In exceptional circumstances, the trial chamber may decide to keep the person in custody during an appeal if justified by the risk of flight of the accused, the seriousness of the offense, and the probability of success on appeal.

  1. Will victims receive reparations?

Including the possibility of reparations for victims within the ICC’s mandate and creating the Trust Fund for Victims were important advances to make international justice more attentive to the concerns of victims and their right to redress. Under the Rome Statute, reparations include, but are not limited to, restitution, compensation, and rehabilitation. Reparations can be either individual or collective, that is, awarded to a community affected by the crimes adjudicated.

The court may order a defendant to pay reparations or, if the defendant is indigent, use the funds raised by the Trust Fund for Victims. Reparations can only be ordered by the court against a defendant who has been found guilty.

If Ntaganda is convicted, but pending a potential appeal, the trial chamber will take preparatory steps to facilitate and expedite the reparations proceedings. These may include inviting submissions, appointing experts, and even issuing a reparations order. However, the order can only be carried out once a conviction has been confirmed on appeal. Three cases before the ICC (Lubanga, Katanga, and Al-Mahdi) are in this phase.

Throughout the reparations proceedings, it is essential for the court to communicate clearly with the affected communities to ensure the proper participation of concerned victims and to minimize confusion and frustrated expectations.

  1. What else is the ICC doing in Congo and what more should it do?

The ICC prosecutor has initiated public cases against six suspects in relation to alleged crimes committed in Congo. In the first phase of its investigation, the ICC pursued three leaders of armed groups accused of crimes in Ituri, in addition to Ntaganda:

  • Thomas Lubanga: Former UPC leader, who was convicted of recruiting and using child soldiers in hostilities and was sentenced to 14 years in prison in 2012. His conviction and sentence were confirmed on appeal, and in December 2015 he was transferred to a prison in Congo to serve the remainder of his sentence.
  • Germain Katanga: Former chief of staff of the Patriotic Force of Resistance in Ituri (Force de résistance patriotique d’Ituri, FRPI), who was found guilty for the 2003 attack on civilians in Bogoro village and sentenced to 12 years in prison in 2014. Both the prosecution and defense dropped their appeals and his sentence was reduced by three years and eight months. Katanga was transferred to Congo in December 2015. He is currently on trial in Kinshasa for other crimes allegedly committed during the conflict in Ituri.
  • Mathieu Ngudjolo Chui: Former chief of staff of the Nationalist and Integrationist Front (Front des nationalistes et intégrationnistes, FNI), who was acquitted of all charges of war crimes and crimes against humanity related to the 2003 attack on Bogoro. He returned to Congo in May 2015.

Unfortunately, the prosecution’s decision to sequence its investigations, initially focusing solely on pro-Hema groups and only 18 months later bringing cases against pro-Lendu groups, made it difficult to maintain perceptions of impartiality.

For crimes committed in the Kivu provinces of eastern Congo, the ICC issued arrest warrants against two leaders of the FDLR:

  • Callixte Mbarushimana: Executive secretary of the FDLR, who was arrested in France in October 2010, but ICC pretrial judges declined to confirm the charges against him for lack of sufficient evidence. He was released in December 2011.
  • Sylvestre Mudacumura: FDLR’s military commander, who is still in Congo, evading justice.

The number and stature of Congo-related cases before the ICC, however, do not address the scale of the crimes committed since 2002 (as of which the ICC has jurisdiction).

Human Rights Watch has repeatedly urged the ICC prosecutor to explore the regional dimension of the conflict in Congo, notably by investigating the role of senior political and military officials from Congo, Rwanda, and Uganda who supported, armed, and financed abusive armed groups in eastern Congo over the years. For example, in 2012 and 2013, Human Rights Watch documented Rwandan support to the M23, which was reminiscent of Rwandan support to previous abusive Congolese armed groups, including the CNDP and the UPC.

Human Rights Watch has also urged the ICC prosecutor to investigate alleged crimes by the Congolese army and, evidence permitting, to prosecute those most responsible. Most recently, Human Rights Watch urged the ICC to expand its investigation in Congo to cover the attacks that began in Beni, North Kivu, on October 2, 2014. These steps are crucial for the ICC to make a meaningful contribution to justice in Congo and the broader Great Lakes region.

Human Rights Watch recognizes that the ICC is investigating grave international crimes in nine other countries and considering whether to open investigations in at least nine more, and may lack the resources to take on additional Congo cases at this time. But the prosecutor should consider how to do so in the coming years and formulate a strategy to address outstanding accountability needs in Congo. The court in turn needs strong, long-term support from ICC member countries, which should allocate sufficient resources to meaningfully address the court’s growing workload.

  1. What are Congolese authorities doing to address impunity for grave international crimes?

From its inception, the ICC was never intended, and does not have the capacity, to investigate and prosecute all those responsible for grave international crimes in Congo, or elsewhere. Under the “complementarity” principle in the Rome Statute, national authorities retain the primary responsibility to hold those responsible for war crimes, crimes against humanity, and genocide to account.

Over the past 15 years, Congolese military courts have prosecuted a number of cases involving war crimes and crimes against humanity, but much still needs to be done to effectively address impunity for serious international crimes. The vast majority of atrocities committed in Congo remain unpunished and the proceedings in recent years have highlighted challenges and gaps in the domestic judicial system. The Congolese government should prioritize the delivery of justice for grave international crimes at the domestic level by strengthening national accountability efforts. This will help deter violence, build respect for the rule of law, ensure wider accountability than the ICC can deliver with its limited mandate, and increase local resonance of justice efforts.

Needed reforms to improve domestic accountability efforts include improving investigations and prosecutions to guarantee fair trials that are representative of both the people committing the crimes and the types of crimes committed; improving access to justice for those most affected by the crimes and improving respect for the rights of defendants and victims; pursuing priority cases following a solid prosecutorial strategy; and ensuring judicial independence. In many cases, those in positions of power – who have frequently been most responsible for the worst crimes – have been protected from arrest and prosecution.

Posted: January 1, 1970, 12:00 am