An End to Africa's Reign of Impunity?

by Michael Fleshman, Africa Renewal

The world took a giant step towards eliminating impunity for human rights abuses on November 9 when the International Criminal Court (ICC) opened its first-ever hearing in a case against a Congolese militia leader—Thomas Lubanga Dyilo, former leader of the Union of Congolese Patriots, a Ugandan-sponsored guerrilla movement which is believed to have engaged in massacres of the Lendu people in the Democratic Republic of Congo's eastern Ituri district.

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 into alleged abuses by members of Uganda's rebel Lord's Resistance Army, and combatants in the Darfur region of western Sudan.

But Africa's own efforts to hold senior government officials and rebel leaders accountable for torture, murder, rape and other crimes against humanity also reached new milestones in 2006. In March, Nigerian authorities arrested the former Liberian president, Charles Taylor, and transferred him to the authority of a special court in Sierra Leone. He faces charges of complicity in 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 the former Chadian leader 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 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 and international technical assistance and financing.

Targeting Impunity

The 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." Reed Brody of the non-governmental group Human Rights Watch and an attorney for some of Habré's alleged victims welcomed the Senegalese announcement as "an important step in the right direction."

But the political and legal obstacles to the prosecution of government leaders for serious 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 peace. In others, differences between national and international legal systems and the absence of competent institutions can pose vexing issues of jurisdiction and procedure.

In Habré's case, the long effort to bring him to trial began within months of his overthrow and exile to Senegal in 1990, with the creation of l'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 Habré was responsible for the deaths of upwards of 40,000 people and for the widespread use of torture. Although the commission recommended that Habré be charged and tried in a Chadian court, the government declined to take up the case amid fears of violence by Habré's supporters and concerns about meeting international fair trial standards.

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, the Cour de Cassation. It ruled that Habré could not be charged in Senegal for crimes said to have been committed in another country. Three of Habré's alleged victims then went to court in Brussels, where it was possible to try him under legislation permitting Belgian courts to try individuals for heinous human rights offences wherever committed. It was not until September 2005, however, that Belgium issued an international arrest warrant for 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 jurisdiction over 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 Wade referred the matter to the African Union (AU) at the end of 2005. Following the recommendations of a special judicial review committee, the AU mandated Senegal on July 2, 2006 to "prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for 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 Habré's alleged victims is less about where and by whom he will be tried, but 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," says AVCRP founder and vice president Suleymane Guengeung. "What means do they have?" AVCRP is not insisting that Senegal try Habré, he continues, "but for them not to deny us his trial" in another venue.

"The best solution," he asserts, "is to extradite him to Belgium. If the AU is firm in its decision to fight impunity that is laudable." Yet months after the AU decision, he notes, "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 Habré has been difficult, acknowledges Richard Dicker, director of the international justice program at Human Rights Watch. But the problem isn't limited to Africa, he says. "National courts around the world are reluctant to try former heads of state for crimes not committed on their territory," he told Africa Renewal in an exclusive interview. 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."

No Sanctuary

Charles 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 the venue of the trial itself. Taylor was elected Liberia's president in 1997 after a bloody civil conflict. Fighting resumed in 1999. With rebels closing in on the Liberian capital, Monrovia, Taylor accepted an offer of safe haven from Nigerian President Olusegun Obasanjo in August 2003 as part of a peace agreement. The arrangement allowed Taylor to evade prosecution for alleged complicity in atrocities committed in neighbouring Sierra Leone by a rebel force known as the Revolutionary United Front, RUF. An international tribunal established by the UN and Sierra Leone's government, the Special Court for Sierra Leone, issued a warrant for his arrest earlier that year for numerous war crimes and crimes against humanity.

He was finally arrested 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. Taylor was transferred to Sierra Leone, and then on to The Hague, 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 Taylor to trial—in part because of fears that his supporters, some still armed and disaffected, could destabilize fragile peace and reconstruction efforts in the war-ravaged region. There were also concerns that his hand-over could prolong other conflicts by persuading combatants they could not rely on promises of amnesty or asylum. Despite the Sierra Leone warrant, Ghanaian authorities refused to arrest 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 million reward for Taylor's arrest—President 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 Taylor back on Liberian soil. Indeed, Taylor is not wanted by the Liberian police and does not face charges there. Speaking at her first press conference as president in January 2006, Ms. Johnson-Sirleaf said that she did not want 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." 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 and into the custody of the Sierra Leone Special Court proved only a temporary stop on 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 Taylor would still be judged by the Special Court, it took three months to work through the diplomatic and legal details of the transfer, including an agreement by the UK to imprison Taylor if convicted and a UN Security Council resolution authorizing the shift.

Richard Dicker of Human Rights Watch acknowledged that there can 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, Dicker says, "national courts would try individuals for egregious human rights crimes, even those not occurring on their territory or involving their citizens" using doctrines like 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."

Part of the challenge for the future, he asserts, 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 presently on Africa, it is not limited to the continent. In Europe, an international tribunal continues to hear charges against leaders of the former Yugoslavia. Victims and investigators in Latin America mounted a long campaign to bring a the late Chilean general, Augusto Pinochet, to trial for torture and executions alleged to have been committed in the wake of his 1973 coup. Nor are officials of the most powerful countries necessarily exempt. In mid-November a group of international human rights organizations headed by the New York-based Center 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," 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, 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 concludes. "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."

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This story originally appeared in the January edition of Africa Renewal, a United Nations publication.

http://www.un.org/ecosocdev/geninfo/afrec/vol20no4/204-ending-impunity.html

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Reprinted by WORLD WAR 4 REPORT, Feb. 1, 2007
Reprinting permissible with attribution