Tag Archives: International Criminal Court

Hissène Habré: a pivotal case for international justice in Africa

By Pierre Hazan, Université de Neuchâtel 
June, 2016

On May 30, in an African court, history was made. In an unprecedented move, a former president was convicted of human rights abuses by a foreign court. In another historic ruling, the accused was also sentenced on counts of sexual abuse and the rape of a prisoner.

Chad’s former dictator, Hissène Habré, who ruled from 1982 to 1990, received a life sentence for crimes against humanity. His conviction comes at a crucial time for international justice in Africa, with several governments threatening to withdraw from the International Criminal Court (ICC). Could Habré’s trial create a groundswell within civil society, leading governments to think twice about withdrawing?

‘No one can whistle a symphony’

In the wake of the ruling, Habré’s former prisoners can hardly believe that their 20-year struggle is coming to an end. Disbelieving cries of “We won!” rang out in Dakar, Senegal, after the Extraordinary African Chambers announced the verdict, and again upon the survivors’ return to N’Djamena.

This is a clear victory for Chad’s civil society and a significant step forward in the fight against impunity. It’s the fulfilment of Souleymane Guengueng’s pledge, made “before God” and against all odds, that if he ever got out of the death camps alive, he would to see that Habré went to trial for his crimes.

This victory also marks the culmination of a two-decade-long fight, led by an unshakable coalition headed up by two Chadian lawyers, Jacqueline Moudeina and Delphine Djiraibé, with support from Reed Brody from Human Rights Watch. Together, this group overcame innumerable political and legal hurdles to bring about this seemingly impossible result. Clément Abaifouta, president of one of the major victims’ groups, summed up this successful joint effort with the saying, “No-one can whistle a symphony.”

The trial’s silver lining

The case demonstrates the impact of justice at its best: its capacity to transform people who have been damaged to their very cores, and to liberate them.

Kaltouma Deffalah was made a sex slave and raped repeatedly over the course of a year. From the comfort of her small home in N’Djamena, she explained the inner change the trial has brought for her:

In the court waiting room, I was still afraid and my hate for Habré was still strong. But when I saw him there in the dock, he was no longer the all-powerful god who had terrorised us. I spoke without fear. My fear and anger towards him disappeared. I released the pain lodged in my stomach, and my scars closed over. I am healed, I am free.

Clément Abaifouta also regained his dignity. He believes this victory will have positive repercussions well beyond Chad’s borders:

Habré’s trial sends a strong message to Africa. With his conviction, we have put Chad on the map. But there are too many places on our continent where torture, theft and rape continue. The fight must go on.

Like the 1998 indictment of Augusto Pinochet by the Spanish examining magistrate Baltazar Garzon, the conviction of Habré has been hailed by human rights activists. It represents a step forward: a court created by the African Union has rendered justice to African victims of an African dictator.

Embarrassment for the government of Chad

Despite Clément, Souleymane and so many other survivors’ infectious enthusiasm, the extent of the trial’s impact remains difficult to ascertain. The government of Chad has been silent on the matter. As one of the victims put it colourfully, “The elephant has fallen, but no one is beating the drums in celebration.”

It is easy to understand the government’s embarrassment. Its attitude towards the trial, which was held in the Senegalese capital Dakar, more than 2,800km from N’Djamena and far from its control, was always one of ambivalence. It was impossible to know how far the judges of the Extraordinary African Chambers would go. Chad’s current president, Idriss Déby, was Habré’s military chief of staff before opposing and finally toppling him. Would his name come up at the trial?

There was a chance that Chadian President Déby’s name would come up at trial. GovernmentZA/Flickr, CC BY-ND

No mention was made of Déby, but the question lingered to the very end – hence the government’s ambiguous position as the trial’s main backer, yet refusing to hand over those responsible for repression under Habré to the Extraordinary African Chambers authorities. Did they fear what these people might reveal?

Furthermore, victims have yet to see a dime of the reparations ordered by the courts, which had been set to be paid by March 25 at the latest.

Will the Habré case reignite the momentum of civil society in Africa? We must take into account that it took 17 years and irrefutable material proof, reinforced by the testimony of hundreds of witnesses, to convict a deposed and isolated dictator – that is, to cut down some dead wood. Mentions of his former political and military allies in Washington and Paris were virtually absent from the trial.

‘Africa sought out the ICC’

This long process illustrates the obstacles faced by international justice, and specifically by the ICC. Its work, and very existence, would be impossible without the energetic support of hundreds of African NGOs, which put pressure on their governments to ratify the Rome Statute in 1998, and lobbied them to call on the new institution.

But how does the ICC measure up today? In the short time since its inception, in 2002, to what extent has it been able to respond to the expectations of African civil society? Whether it’s Boko Haram, the jihadi groups operating in the Sahel, or Daech in Libya and the Middle East, terrorist organisations present a new kind of challenge for international justice. While in the past perpetrators tried to hide, or at least deny their crimes, these groups do the opposite. They document beheadings and other violent acts, signalling their total repudiation of the fundamental rules of international justice, and undercutting the ICC’s potentially dissuasive power.

International Criminal Court Prosecutor Fatou Bensouda.
Prachatai/Flickr, CC BY-NC-ND

Clearly this is a pivotal time for international justice. Several governments, led by Kenya, have been using the “war on terror” as an excuse to curtail liberties in the name of security. They plan to withdraw from the ICC, claiming that it unfairly targets African countries and is no longer relevant.

ICC Prosecutor Fatou Bensouda rejects such criticism, stating that “Africa sought out the ICC, not the other way around.” Five African countries – Côte d’Ivoire, the Central African Republic, Mali, Uganda and the Democratic Republic of Congo – asked the ICC to intervene in their jurisdiction, and it was the United Nations Security Council that referred the Libyan and Sudanese cases to the ICC prosecutor.

All the way to the top

But the real reason behind the reticence displayed by some African governments is to be found in the ICC’s power to indict sitting heads of state, as in the case of Sudanese President Omar al Bashir and his Kenyan counterpart, Uhuru Kenyatta (against whom charges were later dropped).

In an interview with JusticeInfo.net, Bensouda reaffirmed her commitment to go after those responsible for international crimes at the highest levels, a cause for concern for some governments who see international courts as blithely oblivious to the concept of national sovereignty.

There is deep division among African states on this question. Some loudly decry “neocolonial” justice, a populist discourse designed to resonate with a majority of Africans who still remember colonial crimes. Others understand the potential benefits, including political benefits, to be gained from the ICC’s intervention.

One major question remains: beyond the initial buzz created by the verdict, will the Habré trial generate a new groundswell among civil societies in Africa? Will they be inspired to continue the fight against impunity, even if it means bypassing the ICC? The answer will help us evaluate the impact of this groundbreaking trial.

Creative Commons

Translated from the French by Alice Heathwood for Fast for Word.The Conversation Pierre Hazan is professeur associé, Université de Neuchâtel. This article was originally published on The Conversation. Read the original article.

You might also wish to read, from our archives:

Tyrants trump under-resourced International Criminal Court, by Jonathan Manthorpe, F&O International Affairs columnist (2014)

When the International Criminal Court came to life in 2002 it was touted as a place where tyrants and their underlings would be brought to account for genocide and crimes against humanity. But the ICC, based in The Hague, has never gained altitude. The limits on its powers and its inability to fulfil even its restricted mandate were put on display this month by the court’s chief prosecutor, Fatou Bensouda.

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Manthorpe on the International Criminal Court: a hobbled creature

Fatou Bensouda

ICC chief prosecutor Fatou Bensouda has withdrawn charges against Kenya’s president Uhuru Kenyatta and said she’ll “hibernate” investigations into crimes in Dafur, for which President Omar al-Bashir was charged with genocide and war crimes in 2008.

The International Criminal Court is a “hobbled creature,” unable to bring to justice perpetrators of crimes against humanity, writes  International Affairs columnist Jonathan Manthorpe’s. It’s under-resourced, shunned by China, Russia, and America, and under attack by critics with much to gain who say it’s a tool of western neo-colonialism, and biased against Africa. An excerpt of Manthorpe’s new column, Tyrants trump under-resourced International Criminal Court:

When the International Criminal Court came to life in 2002 it was touted as a place where tyrants and their underlings would be brought to account for genocide and crimes against humanity.

But the ICC, based in The Hague, has never gained altitude. The limits on its powers and its inability to fulfil even its restricted mandate were put on display this month by the court’s chief prosecutor, Fatou Bensouda. On Dec. 5 she withdrew charges of crimes against humanity lodged against Kenya’s president, Uhuru Kenyatta. A week later, Dec. 12, Bensouda said she will “hibernate” investigations into crimes against humanity in the Sudanese region of Dafur, in which President Omar al-Bashir and some of his officials were charged with genocide and war crimes in 2008.

Bensouda’s climb-downs came as representatives of the 122 countries involved in the ICC, the Assembly of States, met in New York. It was not a happy meeting. The ICC’s budget was cut, Kenya led a charge accusing the court of being biased against African heads of state, and the Palestinian Authority achieved observer status with the intention of suing Israel for war crimes when it achieves full membership … Log in to read Tyrants trump under-resourced International Criminal Court  (subscription*).

 

 

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Tyrants trump under-resourced International Criminal Court

JONATHAN MANTHORPE: International Affairs
Dec. 17, 2014

Fatou Bensouda

The defied hunter and the quarry which defied her: The ICC’s Fatou Bensouda in June, above (U.K. Foreign and Commonwealth Office via Wikimedia Commons); Uhuru Kenyatta, below left, in August during a visit to the U.S., the photographer Amanda Lucidon for the White House, and Omar al-Bashir, below right, almost six years ago, at a meeting of African leaders (U.S. Navy, public domain).

When the International Criminal Court came to life in 2002 it was touted as a place where tyrants and their underlings would be brought to account for genocide and crimes against humanity.

But the ICC, based in The Hague, has never gained altitude. The limits on its powers and its inability to fulfil even its restricted mandate were put on display this month by the court’s chief prosecutor, Fatou Bensouda. On Dec. 5 she withdrew charges of crimes against humanity lodged against Kenya’s president, Uhuru Kenyatta. A week later, Dec. 12, Bensouda said she will “hibernate” investigations into crimes against humanity in the Sudanese region of Dafur, in which President Omar al-Bashir and some of his officials were charged with genocide and war crimes in 2008.

Bensouda’s climb-downs came as representatives of the 122 countries involved in the ICC, the Assembly of States, met in New York. It was not a happy meeting. The ICC’s budget was cut, Kenya led a charge accusing the court of being biased against African heads of state, and the Palestinian Authority achieved observer status with the intention of suing Israel for war crimes when it achieves full membership.

The accusation that the ICC is a tool of western neo-colonialism and biased against Africa is a central weapon in the fistful of tactics Kenyatta used in his campaign to undermine charges that, as an opposition leader, he organized and funded violence in the wake of 2007 elections in Kenya. About 1,500 people were killed and up to 600,000 displaced in the violence.

The charge of ICC bias has been picked up by other African leaders. This week, Uganda’s president, Yoweri Museveni, called on the continent’s 34 nations that are members of the ICC to withdraw support for the court.

It is true that the ICC has only African cases on its agenda at the moment. But the fact that 34 African nations currently back the ICC, a quarter of the membership, demonstrates one reason why there is an emphasis on human rights violations on that continent in the court’s work. The other major source of members is Latin America. But there are hardly any members from the Middle East, so there is no impetus to pursue cases against tyrants in Syria, Libya, Egypt or elsewhere in the region.

And because the United States, Russia and China are not members of the ICC or acknowledge its authority over their citizens, the court has no powerful consistent advocate or backer at the United Nations. For example, last year the UN Security Council, where the U.S., China and Russia have vetoes, was unable to come to an agreement on a motion allowing intervention in Syria, which included referral of Syrians accused of crimes against humanity to the ICC.

But the major structural deficiency in the ICC when confronted by tyrants in power is that it has limited investigative resources. It relies on the assistance of the target government to make its cases. Expecting tyrants to assist in their own downfall and transportation to The Hague to answer for their crimes is nonsense, of course.

Kenyatta became Kenya’s president after elections last year and has waged a wily campaign against the ICC charges, which led to Bensouda withdrawing them early this month. As I’ve said, a central tactic has been to win public and regional backing by characterizing the process as intrinsically imperialist and anti-African. This carefully ignores the fact that it was a Kenyan investigative commission in 2009, while Kenyatta was still an opposition politician, that recommended the ICC pursue the case of responsibility for the 2007 violence and deaths.

Meanwhile, Kenyatta and his officials acted as though they were doing everything possible to help the ICC investigators find and interview witnesses. In reality, Kenyatta oversaw a sophisticated conspiracy of obfuscation, distraction and intimidation of witnesses.

It is a measure of how confident Kenyatta felt at the success of his campaign to demolish the case against him that he voluntarily turned up at the ICC hearing in October. On Dec. 3 the judges agreed that Kenyatta’s administration had not co-operated with court investigators “in good faith,” but ruefully decided there was not enough evidence to sustain a trial. They gave Bensouda a week to decide what to do. She came to the only possible conclusion and on Dec. 5 dropped the charges. She tried to retain some dignity for the ICC process by saying she reserved the right to file them again in the future if more evidence could be gathered.

One of Kenyatta’s claims was that as president he has immunity from ICC prosecution. This ploy is untested, but it has caught the attention of several leaders, African and otherwise, who have reason to fear their pasts catching up with them. One is deposed Cote d’Ivoire President Laurent Gbagbo, who has been in an ICC prison since 2011 awaiting trial on four charges of crimes against humanity. Gbagbo denies the allegations and is attempting to gain immunity against any resumption of the now stalled trial — his supposed ill health has put the brakes on the process — by running a vigorous campaign from his cell in Holland for presidential elections due next year.

Fear of being dragged to the ICC cells is giving several other African leaders pause for thought before retiring and perhaps losing immunity from Uhuru Kenyatta, left, and Omar al-Bashir .prosecution for their past misdeeds. Most notable is 90-year-old Robert Mugabe of Zimbabwe. Still awaiting judicial retribution is his dispatch of special forces against his political opponents in the early 1980s in which thousands of men, women and children were massacred. In the early 2000s Mugabe again loosed his forces against opponents, killing hundreds of people, wilfully destroying the country’s economy and compelling a third of the country’s 12 million people to flee to neighbouring states.

Another African leader hesitant to retire for fear of retribution is the Congo’s Joseph Kabila. He is meant to step down in 2016 after serving two five-year terms as President. But after recently being accused by the UN of masterminding extra-judicial killings, there are growing signs that Kabila feels his safest option is to defy the constitution and stay in power.

The ICC is not a total dud and it may yet achieve the stature and importance that was envisaged at its birth. The concept of judicial accountability of leaders remains current, and  UN-mandated special courts have brought several tyrants to justice. Since May, 2012, former Liberian President Charles Taylor has been serving a 50-year prison sentence for crimes against humanity after a trial at the Special Court for Sierra Leone. Former Yugoslav President and Serbian leader Slobodan Milosevic died of a heart attack in a prison cell in The Hague in 2006. He conducted his own defence at a five-year trial for war crimes trial before the International Criminal Tribunal for the Former Yugoslavia, but died before the verdict was announced. Bosian Serb leader Radovan Karadzic is being tried on charges of war crimes during the break-up of Yugoslavia by the same tribunal.

And not all African leaders dismiss the ICC. Indeed, several of them like it very much, but just so long as it investigates the alleged atrocities of their opponents rather than their own misdeeds. At the request of the government of Mali, the ICC is investigating claims of atrocities in the north of the country in 2012, both by leaders of an abortive coup and by jihad fighters of al-Qiada in the Islamic Magreb.

Jean-Pierre Bemba Gombo, the commander of the Movement for the Liberation of Congo, has been on trial in The Hague since November 2010 for alleged war crimes and crimes against humanity committed in the neighbouring Central African Republic (CAR). At the request of the CAR government, the ICC is also investigating allegations of atrocities –including murder, rape and the use of child soldiers— by the Séléka, a mostly Muslim rebel group from the north of the country, committed in the two years since 2012.

But until the ICC gets substantially more resources and the ability to act independently, it will remain a hobbled creature. And don’t expect any action from the three countries that could help set the ICC up as a force to be reckoned with. The last thing China, Russia, or the U.S. wants is an international court able to charge their political leaders with war crimes, or crimes against humanity.

© 2014 Jonathan Manthorpe

jonathan.manthorpe@gmail.com

Jonathan Manthorpe

Jonathan Manthorpe is a founding columnist with Facts and Opinions and is the author of the journal’s International Affairs column. Manthorpe has been a foreign correspondent and international affairs columnist for nearly 40 years. Manthorpe’s  nomadic career began in the late 1970s as European Bureau Chief for The Toronto Star, the job that took Ernest Hemingway to Europe in the 1920s. In the mid-1980s Manthorpe became European Correspondent for Southam News. In the following years Manthorpe was sent by Southam News, the internal news agency for Canada’s largest group of metropolitan daily newspapers, to be the correspondent in Africa and then Asia. Between postings Manthorpe spent a few years based in Ottawa focusing on intelligence and military affairs, and the United Nations. Since 1998 Manthorpe has been based in Vancouver, but has traveled frequently on assignment to Asia, Europe and Latin America.

 

 

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Explainer: International law and flight MH17

Melanie Klinkner, a senior lecturer in law at England’s Bournemouth University, explains what could happen next in the aftermath of the downing of Flight MH17 over Ukraine.

By Melanie Klinkner, The Conversation, Bournemouth University
Published on F&O July 20, 1014

540px-Asia_laea_location_map.svg

Location of crash site; departure and destination airports. Map by Uwe Dedering – Wikipedia/Creative Commons

As the events surrounding the crash of Malaysia Airlines Flight MH17 over Ukraine become clearer, more and more voices are claiming the plane may have been shot down by pro-Russian separatists in eastern Ukraine.

The Ukrainian president Petro Poroshenko described the crash as an act of “terrorism”, while Russian President Vladimir Putin is reported to have said that “the state over whose territory this occurred bears responsibility for this awful tragedy.”

For her part, former United States secretary of state Hillary Clinton opined that the catastrophe could have grave consequences for Russia should it turn out that they were involved in supplying equipment used to attack the plane.

What now?

Legally speaking, we are still at an extremely early stage. Once it is established exactly how the plane was brought down, the next step will be to establish who bears responsibility for the crash, and how (and by whom) they will be punished.

States are obliged to punish those responsible. The first steps to investigate the causes and effects of the plane crash have been taken and Ukraine has asked the Netherlands for assistance in this task – but the possible responses using international legal structures are yet to be decided.

For his part, Ukraine’s prime minister suggested that the International Criminal Court (ICC) in the Hague, established to help end impunity for the perpetrators of the most serious crimes of concern to the international community, should look into the matter. However, it is in fact fairly unlikely that the ICC will get involved.

Bad timing

On April 17 2014, the Ukrainian government (which is signatory to the Rome Treaty but has not ratified it) lodged a declaration under Article 12(3) of the ICC’s statute, accepting the ICC’s jurisdiction over alleged crimes committed in its territory.

But that declaration specified only the time frame from November 21 2013 to February 22 2014, when Ukraine’s former president Viktor Yanukovych was ousted amid civil unrest. That means the plane crash would fall outside the declaration’s time frame. The terms could be revisited by the Ukrainian government, but extending the time frame would also leave the pro-Ukrainian side subject to scrutiny by the court for any crimes committed in the course of the deteriorating conflict.

Meanwhile, under Article 13(b) of the Rome Statute, there is the possibility that the United Nations Security Council could refer the situation to the ICC Prosecutor – though Russia holds a vetoing power on the council, and would probably use it to block any such attempt.

Jurisdiction

We also have to remember that the crime of terrorism does not form part of the ICC’s jurisdiction, as the concept of “terrorism” is notoriously difficult to define.

Instead, the ICC’s core crimes are genocide, crimes against humanity, and war crimes (from 2017, this list will include the crime of aggression). To prove a crime against humanity, for example, the prosecution would have to prove that 1) the attack was aimed at any civilian population; 2) a state or organisational policy existed that led to the attack; 3) the specific attack formed part of a widespread and systematic attack; 4) a link between the accused and the attack exists; and 5) there was an awareness of the broader context of the attack.

While some commentators have suggested that the 9/11 plane crashes, for example, constituted a crime against humanity, if the shooting down of flight MH17 proved to be an accident rather than a policy, it would be very difficult indeed to prove the necessary elements of a crime against humanity.

If, however, a preliminary examination by the ICC suggested there were grounds to proceed and the neccessary admissibility and threshold criteria are met, it may still prove very difficult to apprehend the alleged perpetrators if they were to reside in Russia.

Veto trouble

Instead of ending up in front of the ICC, the MH17 disaster will probably become a question for the International Court of Justice, where disputes between states are considered. The court has previously considered rather similar cases: in 1988, for example, Iran brought a case against the US for the shooting down of Iran Air Flight 655 – though eventually the case was withdrawn.

By the same token, Malaysia could be entitled to bring before the court any state directly responsible for the downing of flight MH17, or for supplying the equipment used to do so.

Another body which could take legal action, of course, is the UN Security Council, tasked as it is with maintaining peace and stability. It could establish an independent commission of enquiry, though any resolution on behalf of the Security Council might well be vetoed by Russia. The UN General Assembly could also produce a recommendation in form of a resolution, but they are non-binding.

Ultimately, what happens next will depend on how the major players behave – especially Russia – once the facts of the crash have been more fully established.

Creative CommonsThe Conversation

Melanie Klinkner does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

This article was originally published on The Conversation. Read the original article.

Related reading on Facts and Opinions:
The Cold War 2.0 by Jim McNiven in Thoughtlines
Leave Ukraine to the Russians 
by Jonathan Manthorpe

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