The field of international criminal justice has witnessed a number of important developments this spring and summer—enough to merit a proverbial top-ten list. In honor of International Justice Day on July 17th (whose official tag is #JusticeMatters), this three-part series provides background and analysis of some key judgments, jurisprudential developments, and events. Part II is here and covers the Bemba case before the ICC, the crime of aggression, and justice efforts involving Chile.
1. Hissène Habré of Chad Convicted: On May 30, 2016, the Extraordinary African Chambers (EAC) sitting in the Appeals Court of Dakar, Senegal, issued a life sentence to the former President of Chad, Hissène Habré, finding him guilty of a range of international crimes, including torture, war crimes, and crimes against humanity. The full judgment—which is subject to appeal—has not yet been released. These proceedings encapsulate a number of important principles and developments:
- The EAC are themselves remarkable in that they demonstrate the flexibility of the hybrid court model (as I have written about here)—they are the product of an international agreement between the African Union (AU) and Senegal coupled with Senegalese implementing legislation; they are empowered to apply both international and domestic criminal law; they have been convened entirely within the Senegalese domestic judicial system; and they apply Senegalese procedural law. A sprinkling of Pan-African jurists occupy the bench along with a majority of Senegalese colleagues under the Presidency of Gberdao Gustave Kam from Burkina Faso.
- The EAC offer a model for an internationalized form of universal jurisdiction—the only basis on which Senegalese courts could exercise jurisdiction over Habré given that his crimes were committed in Chad against Chadian victims. Although Chad did not object to the proceedings, it is not a party to the agreement establishing the EAC. In this way, the EAC have operationalized one of the core tenets of the AU Constitutive Act: a rejection of impunity.
- The EAC also confirm that there is no residual head of state immunity that would bar prosecution by an internationalized tribunal, a position that is consistent with the rulings of other international tribunals, as I have discussed here, as well as a host of international criminal law treaties. The judgment also stands in stark contrast to provisions recognizing foreign official immunity in the draft constitutive documents of the proposed African Court of Justice and Human and People’s Rights, discussed in greater detail here.
- The trial would not have come to fruition without the tireless work of victims’ advocates, such as Chadian lawyer Jacqueline Moudeina, who survived an assassination attempt, and Reed Brody, legal counsel for Human Rights Watch and the subject of film entitled The Dictator Hunter. Two decades ago, Brody discovered a trove of records directly linking Habré to abuses by the Chadian security services, the Directorate of Documentation and Security (DDS). As one commentator put it, this is a case of “victims’ justice”.
- An important side note concerns the precise charges levied against Habré. The defendant was not initially charged with sexual or gender-based violence (SGBV)per se. On the eve of trial, one victim stepped forward and agreed to testify about the sexual violence she experienced. More and more survivors followed suit, including one witness who testified that Habré himself had raped her and then consigned her to sexual slavery in a desert army camp. A group of international lawyers, including yours truly, submitted an amicus brief urging the EAC toconsider sexual violence as acts of torture (which is prosecutable as a stand-alone crime under the EAC Statute) in addition to war crimes and crimes against humanity. In the end, as is common in a civil law practice, the judicial panel revised the charges to enter convictions for rape, sexual slavery, and other forms of SGBV.
- Joining a number of other international donors, the United States pledged $1M to the EAC process, at the urging of Secretary Hillary Clinton. This contribution came notwithstanding that the United States, France and other states had supported Habré during his reign as a bulwark against Muammar Gaddafi. Secretary of State John Kerry acknowledged this unfortunate history in his remarks welcoming the EAC verdict:
As a country committed to the respect for human rights and the pursuit of justice, this is also an opportunity for the United States to reflect on, and learn from, our own connection with past events in Chad. I strongly commend the Senegalese Government, the Chadian Government, and the African Union for creating the Extraordinary African Chambers that allowed for a fair and balanced trial. Let this be a message to other perpetrators of mass atrocities, even those at the highest levels and including former heads of state, that such actions will not be tolerated and they will be brought to justice.
- The outcome of the EAC confirmed not only the viability of “African solutions to African problems” but also that a fair international trial providing a range of procedural rights to victims can be staged on a modest budget (in the range of $10M, a solid percentage of which was provided by Chad), notwithstanding efforts by the defendant and his supporters to disrupt the trial.
- Other defendants have been tried, and are on trial, in Chad for related charges. Technically, these individuals could be prosecuted by the EAC, but this is unlikely given the time frame envisaged for that institution. It is hoped that the EAC will spur more domestic cases in Chad.
Read the full post at Just Security.