The world took a giant step towards eliminating impunity for human rights abuses when the International Criminal Court (ICC) opened its first official hearing, in November, in a case against a Congolese militia leader.
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 on the new court’s docket, with investigations 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 last year.
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 including terrorism, rape, murder and the use of child soldiers, stemming from war crimes committed there by rebels said to have been equipped, supported and controlled by him during that country’s civil war. It was the first time a former African head of state had been arrested and charged with human rights abuses committed in office.
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. 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.
These moves have been hailed as the beginning of a new era of accountability and a blow against impunity for official misconduct around the world. Then United Nations 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”.
Obstacles
But 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 traditionally immune 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 pose vexing questions of jurisdiction and procedure.
The long effort to bring Habré 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 rights abuses. In 1992, a Chadian government commission of inquiry found Habré responsible for the deaths of 40 000 or more people and recommended that he be tried. The government declined to take up the case amid fears of violence from Habré’s supporters and concerns about meeting international standards for a fair trial.
In 2000, the AVCRP went to court in Senegal, but the case was dismissed by Senegal’s highest appeals court, which ruled that Habré could not be charged in Senegal for crimes committed in another country. The AVCRP then went to court in Belgium, where it was possible to try individuals for heinous human rights offences wherever they were committed.
In September 2005, Belgium issued an international arrest warrant for Habré and requested his extradition from Senegal. 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 over the case, President Abdoulaye Wade referred it to the African Union at the end of 2005. The AU finally mandated Senegal to “prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for a fair trial”.
Skepticism
After years of delays, however, Habré’s alleged victims are skeptical. “If the AU is firm in its decision to fight impunity, that is laudable,” AVCRP founder and vice-president Suleymane Guengueng told Africa Renewal in November. But “nothing has been done up to today … I don’t think their decision will materialise … We victims feel it is their intention to keep us waiting so long that we die without seeing justice. It is very sad.”
The slow turning of the wheels of international justice isn’t the only problem facing abuse victims, noted Richard Dicker, director of the international justice programme for Human Rights Watch.
Part of the challenge for the future, he said, 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.
He acknowledged that there can sometimes be a tension, “but not an opposition”, between the need for criminal accountability and the political imperatives of peacemaking. “It’s a serious misstep to trade away justice in the hope of reaching a peace settlement,” he cautioned. “For peace to be durable there must be justice for the most serious offences.”
Despite the challenges ahead, he concluded, in Habré “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.”
Reprinted from UN Africa Renewal