The world took a giant step towards eliminating impunity for human rights abuses on 9 November when the International Criminal Court (ICC) opened its first official hearing, in a case against a Congolese militia leader. Unlike temporary and specially created tribunals like the International Criminal Tribunal for Rwanda, the ICC is the world’s first permanent international criminal court, with the authority to try and convict individuals for serious human rights violations wherever they occur. Africa is expected to feature prominently on the new court’s docket, with investigations also under way into alleged abuses by members of the rebel Lord’s Resistance Army in Uganda and combatants in the Darfur region of western Sudan.
Africa’s own efforts to hold senior government officials and rebel leaders accountable for torture, murder, rape and other serious crimes against humanity also marked new milestones in 2006. In March, Nigerian authorities arrested former Liberian President Charles Taylor and transferred him to the authority of a special court in Sierra Leone. He faces charges stemming from war crimes committed there by rebels said to have been equipped, supported and controlled by him during that country’s civil war. The charges range from terrorism, rape and murder to mutilation and the use of child soldiers. It was the first time a former African head of state had been arrested and charged with human rights abuses committed while in office.
Four months later, Senegal announced plans to try former Chadian President Hissène Habré for the torture and murder of suspected political opponents during his eight years in power. Mr. Habré was overthrown in 1990 and fled into exile in Senegal, where until now he has successfully evaded prosecution. In November Senegalese President Abdoulaye Wade announced the formation of a commission to prepare for the trial, which will require changes in some domestic laws, as well as international technical assistance and financing.
‘A powerful message’
These moves have been hailed as the beginning of a new era of accountability for abusive political leaders in Africa and an important blow against impunity for official misconduct around the world. UN Secretary-General Kofi Annan declared that “the capture and trial of Mr. Taylor will send a powerful message to the region and beyond that impunity will not be allowed to stand and that the rule of law must prevail.” Mr. Reed Brody of the non-governmental group Human Rights Watch, who is also an attorney for some of Mr. Habré’s alleged victims, welcomed the Senegalese announcement as “an important step in the right direction.”
But political and legal obstacles to the prosecution of government leaders for serious human rights violations remain formidable. Governments are often loath to take up cases outside their borders, particularly when the accused are heads of state who traditionally enjoy immunity from prosecution for acts committed in office. In some instances, guarantees of immunity are demanded by combatants in exchange for laying down their arms. In others, differences between national and international legal systems and the absence of competent institutions can pose vexing questions of jurisdiction and procedure.
In Mr. Habré’s case, the long effort to bring him to trial began within months of his overthrow and flight to Senegal in 1990, with the creation of the Association des victimes des crimes et de la répression politiques au Tchad (AVCRP), a group of nearly 800 victims of human rights abuses. In 1992 a Chadian government commission of inquiry found that Mr. Habré was responsible for the deaths of 40,000 or more people and for the widespread use of torture. Although the commission recommended that Mr. Habré be charged and tried in a Chadian court, the government declined to take up the case amid fears of violence from Mr. Habré’s supporters and concerns about meeting international standards for a fair trial.
In 2000 the AVCRP went to court in Senegal, accusing the former president of responsibility for crimes against humanity. Although the judge ruled in AVCRP’s favour, the indictment was later dismissed by Senegal’s highest appeals court. It ruled that Mr. Habré could not be charged in Senegal for crimes said to have been committed in another country. Three of Mr. Habré’s alleged victims then went to court in Belgium, where it was possible to try him under legislation permitting Belgian courts to try individuals for heinous human rights offences wherever they are committed. It was not until September 2005, however, that Belgium issued an international arrest warrant for Mr. Habré and requested his extradition from Senegal.
‘On behalf of Africa’
Again the Senegalese courts demurred, with the country’s appeals court ruling that it lacked the authority to carry out the Belgian request. Amid indications that Belgium would take Senegal to the International Court of Justice for failing to meet its obligations under the UN Convention Against Torture, President Abdoulaye Wade referred the matter to the African Union (AU) at the end of 2005.
Following the recommendations of a special judicial review committee (see box), the AU mandated Senegal on 2 July 2006 to “prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for a fair trial.” The pan-African body also pledged to assist Senegalese authorities and urged African countries and the international community to support the effort.
After years of delays, however, the issue for Mr. Habré’s alleged victims is less about where and by whom he will be tried, and more about if and when. “We as the victims don’t think that it is the AU or Senegal with their limited resources who can try Habré,” said AVCRP founder and vice-president Suleymane Guengueng. “What means do they have?” The AVCRP is not insisting that Senegal try Mr. Habré, he continued, “but for them not to deny us his trial” in another venue.
“The best solution,” Mr. Guengueng told Africa Renewal, “is to extradite him to Belgium. If the AU is firm in its decision to fight impunity, that is laudable.” Yet five months after the AU decision, he noted, “nothing has been done up to today…. It doesn’t give one confidence that this action will take Africa in the direction of no impunity. I don’t think their decision will materialize…. We victims feel it is their intention to keep us waiting so long that we die without seeing justice. It is very sad.”
Persuading Senegal that it has the legal obligation and moral responsibility to try Mr. Habré was difficult, acknowledged Mr. Richard Dicker, director of the international justice programme for Human Rights Watch. But the problem is not limited to Africa. “National courts around the world are reluctant to try former heads of state for crimes not committed on their territory,” he told Africa Renewal. With the Senegalese announcement, however, “we finally have the prospect for an African domestic court to put on trial a former head of state accused of the most serious crimes that can be committed under international law. If that happens, it will be a significant breakthrough. The implications are very exciting.”
In January 2006 the African Union (AU) established a committee of seven eminent African jurists to review the case of former Chadian President Hissène Habré. In its report, the panel declared that “there is urgency in sending strong signals throughout Africa that impunity is no longer an option.” It found that:
- Political office offers no immunity from prosecution for human rights abuses.
- Trials must proceed in accord with international fair trial standards.
- African leaders should be tried in African courts whenever possible, or on African territory by ad-hoc tribunals, including those convened by the AU Assembly.
- All African signatories to the UN Convention Against Torture have jurisdiction in cases of serious human rights abuses. Countries that have not adopted the convention
must do so.
- The AU judicial organ, the African Court, should be granted jurisdiction to hear criminal cases and provided a “rapid response mechanism” for timely action against impunity
Mr. Taylor’s day in court appears to be more certain. But his case too has been marked by difficult political choices between justice and stability, national sovereignty and international jurisdiction, and even potential venues for the trial itself.
Mr. Taylor was elected Liberia’s president in 1997 after a bloody civil conflict. Fighting resumed in 1999. In August 2003, with rebels closing in on the Liberian capital, Monrovia, Mr. Taylor accepted an offer of safe haven from Nigerian President Olusegun Obasanjo as part of a peace agreement. The arrangement allowed Mr. Taylor to evade prosecution for alleged complicity in atrocities committed in neighbouring Sierra Leone by a rebel force known as the Revolutionary United Front. An international tribunal established by the UN and the Sierra Leonean government, the Special Court for Sierra Leone, had issued a warrant for his arrest earlier that year. Nigeria’s offer of sanctuary was particularly strongly criticized in the North, where many governments and human rights organizations demanded that the former Liberian president face justice.
Mr. Taylor was finally detained by the Nigerian police and turned over to Liberian authorities in March 2006 at the request of Liberia’s newly elected President Ellen Johnson-Sirleaf. Mr. Taylor was transferred to Sierra Leone, and then on to the Hague, in the Netherlands, where he awaits trial on 11 war crimes charges by the Special Court, a unique “hybrid” tribunal composed of Sierra Leonean and international judges and staff.
But initially there was little enthusiasm in West Africa for bringing Mr. Taylor to trial — in part because of fears that his supporters, some of whom were then still armed and disaffected, could destabilize fragile peace and reconstruction efforts in the war-ravaged region. There were also concerns that his handover could prolong other conflicts by persuading combatants they could not rely on promises of amnesty or asylum. Despite the Sierra Leone warrant, Ghanaian authorities had declined to arrest Mr. Taylor in Accra in 2003, since he was there to attend crucial peace talks.
In the face of heavy political pressure from Washington — the US Congress once offered a $2 mn reward for Mr. Taylor’s arrest — Nigerian President Olusegun Obasanjo defended the sanctuary offer as a diplomatic necessity and refused to expel him in the absence of a formal request from a democratically elected Liberian government.
Liberian authorities, however, were notably reluctant to have Mr. Taylor back on Liberian soil. Indeed, Mr. Taylor does not currently face charges there. Speaking at her first press conference as president in January 2006, Ms. Johnson-Sirleaf said that she did not want Mr. Taylor’s fate “to be the issue that constrains us or the issue that causes us not to be able to do what we have to do here for the Liberian people.” Mr. Taylor’s prosecution, she noted pointedly, was therefore of secondary importance to Liberia “even though it may be of utmost concern to the international community.”
Even his transfer to Freetown into the custody of the Special Court for Sierra Leone proved only a temporary leg of Mr. Taylor’s winding journey towards justice. Within days of his arrival, the Special Court requested that the trial be moved to ICC facilities in the Hague to allay security concerns among the region’s governments. Although Mr. Taylor will still be judged by the Special Court, it took three months to work through the diplomatic and legal details of the transfer, including a Security Council resolution authorizing the shift and an agreement by the UK to imprison Mr. Taylor if he is convicted.
Human Rights Watch’s Mr. Dicker acknowledged that there can sometimes be a tension, “but not an opposition,” between the need for criminal accountability and the political imperatives of peacemaking. “But it’s a serious misstep to trade away justice in the hope of reaching a peace settlement. For peace to be durable, there must be justice for the most serious offences.”
Justice for all?
Part of the challenge of bringing presidents to trial, he noted, lies in the gaps between sovereign national courts, which remain the cornerstone of the world’s justice system, and a body of international jurisprudence and institutions still very much in its infancy. Ideally, he said, “national courts would try individuals for egregious human rights crimes, even those not occurring on their territory or involving their citizens,” using doctrines such as universal jurisdiction. International courts like the ICC and the Rwanda and former Yugoslavia tribunals, he noted, “are courts of last resort, becoming involved only when national courts are unable or unwilling to assume jurisdiction.”
It was also important for justice to be seen to be done. Part of the challenge for the future, he asserted, is to ensure that the evolving system of international justice is not seen as an instrument of Northern power — with only the leaders of poor, weak countries held to account in the courts of the mighty.
While much of the focus of the campaign against official impunity is currently on Africa, it is not limited to the continent. In Europe, an international tribunal is continuing to hear charges against leaders of the former Yugoslavia for abuses committed during that country’s civil conflict. Before former Chilean President Augusto Pinochet died in December, victims and investigators pressed to bring him to trial for torture and executions committed in the wake of his 1973 coup.
Nor may officials of the most powerful countries necessarily remain exempt. In mid-November, a group of international human rights organizations headed by the New York-based Centre for Constitutional Rights filed charges in a German court alleging that some senior US government officials are responsible for torture and other crimes related to the “war on terror” and the Iraq and Afghanistan conflicts.
“Over time,” Mr. Dicker predicts, “international justice will become a more level playing field.”
National courts, international justice
The primacy of national courts in protecting human rights makes strengthening legal systems in post-conflict and developing countries an urgent priority, Mr. Dicker says. “In many places the courts simply lack the expertise, resources and infrastructure to meet international trial standards and give real meaning to the idea of the rule of law.” Until local courts can successfully prosecute such cases, the world will need a mix of national and international institutions tailored to specific circumstances and supported by the UN and its member states.
“Let’s keep in mind how new all of this is,” he says. “It has really only been in the last 15 years that these various courts have emerged. One size doesn’t fit all, and for that reason we need a number of different approaches. We have a long way to go, but it’s still a dramatic departure from business as usual in the 20th century.”
A mix of national and international tribunals has emerged to overcome the political and jurisdictional obstacles hampering prosecution of human rights violators. They include:
National courts — Mandated under national law to try domestic and international human rights abusers in accordance with international treaty obligations and evolving legal doctrines of “universal jurisdiction.”
Hybrid courts — Created by agreement between the UN and a host country. These are composed of both national and international judges, attorneys and staff and permit national justice systems, with assistance from the international community, to try cases of serious abuses occurring within their borders. The Special Court for Sierra Leone is the first hybrid.
Ad-hoc international tribunals — Temporary courts established by the Security Council. Staffed by international jurists and other personnel, these are empanelled when national courts are unable or unwilling to try suspects charged with war crimes and other serious offences committed during specific conflicts. The International Criminal Tribunal for Rwanda is one.
International Criminal Court – Established by treaty, the ICC is the world’s first permanent tribunal mandated to try individuals charged with gross human rights violations in countries recognizing ICC jurisdiction or caused by citizens of those states. Cases may be referred to the court by participating states, the Security Council or the ICC prosecutor. As of 1 November 2006, 103 countries were party to the ICC statute, including 28 in Africa.