AFRICA LEGAL AID
Report on AFLA’s Symposium in cooperation with The Permanent Representation of the ICC and OPCW of the Kingdom of the Netherlands on:
Incorporating the Innovations of the Extraordinary African Chambers into International Criminal Justice
11 May 2017
Hilton Hotel, The Hague
14:15-19:00 hrs
Panel:
H.E. Judge Sanji Monageng
Appeals Chamber, International Criminal Court (ICC)
Chair
Evelyn A. Ankumah
Executive Director, Africa Legal Aid (AFLA)
The Prosecution of Hissène Habré by the Extraordinary African Chambers: An African Solution to an African Problem
Henri Thullies
Director, Fondation pour l'Égalité des Chances en Afrique
The Prosecution of Hissène Habré: A Victim Centred Approach to Justice
Jaqueline Moudeina
Executive Director, Chadian Association for the Promotion and Defence of Human Rights
The Contribution of Civil Society
Kimberly Prost
Chef du Cabinet of the President, International Criminal Court (ICC)
The Innovations of the Habré Trial as an Instance of Positive Complementarity: Lessons for the ICC
H.E. Paul Wilke
Netherlands Ambassador to the ICC and OPCW
Re-Launch of Africa Legal Aid Quarterly
Chair: H.E. Judge Sanji Monageng
Appeals Chamber, International Criminal Court (ICC)
H.E. Monageng thanked the guests and the panellists for their presence at the symposium. She expressed her gratitude to AFLA for organising the event, stating the pertinence and timeliness of the symposium.
She pointed out that the successful prosecution of Hissène Habré is a matter to be celebrated, demonstrating Africa’s ability to prosecute its own and that the principle of complementarity does in fact work. Emphasizing that ‘An African Solution to an African Problem’ has been fruitful in accomplishing a positive outcome and carrying forward international criminal justice on the African continent. Furthermore, H.E. Monageng stated that the ICC is not able to prosecute all cases of violations of human rights and thus strengthening the principle of positive complementarity is a must if we are to bring justice to the victims.
She then raised several questions to stimulate critical thinking with regards to the Habré trial and its innovations. Specifically, what has the tribunal done that hasn’t been done before? And, do we, as professionals and activists, give credit where credit is due?
H.E. Monageng then introduced Evelyn A. Ankumah, the Executive Director of AFLA, again expressing her gratitude for the organization of the event and the important role AFLA plays in innovating and advocating for human rights and justice issues.
Evelyn A. Ankumah
Executive Director, Africa Legal Aid (AFLA)
The Prosecution of Hissène Habré by the Extraordinary African Chambers: An African Solution to an African Problem
Ms. Ankumah shared her gratitude for the turnout of the symposium and the presence of the esteemed panellists. She welcomed all to the Symposium, stating the two main reasons for the organizing of the event. Firstly, the relaunch of the quarterly and its pertinent topical relevance to the current innovations of the Habré trial. Secondly, the crucial importance of the completion of the Habré trial and its role as a milestone in international criminal justice. She stated that the Habré trial should serve as a wakeup call to the non-believers of transnational criminal justice because it demonstrates that Africa is capable of taking responsibility and delivering criminal justice. For her, the trial should be seen as a poignant contribution to the entire international justice system.
She argues that the Rome Statute should stay true to the logic of complementarity, thus the ICC should remain in the backseat leaving space for justice to be carried out at home when possible. She states that there is a need for an African ‘driver’ in order to carry forward the international criminal justice realm.
Ms. Ankumah, further argues that there is no guarantee that an African Chamber would deliver justice, and therefore it is of utmost importance to carefully study the work of the Extraordinary African Chambers and its success, in order to deliver equitable and fair justice to all.
H.E. Monageng thanked Evelyn A. Ankumah for her contribution, and introduced Henri Thullies who played an important role in bringing Habré to trial.
Henri Thullies
Director, Fondation pour l'Égalité des Chances en Afrique
The Prosecution of Hissène Habré: A Victim Centred Approach to Justice
Mr. Thullies started off by introducing himself and his relevant work on the Habré trial as part of Human Rights Watch team for six years. For Thullies, the Habré trial and its success pertains the fact that it is mainly a story of the people, an initiative by the people, namely the association of the victims lead by Jaqueline Moudeina. He goes on to cover the historical context and timeline of Habré and the trial.
Mr Thullies started by stating that, originally, Habré became President thanks to the support of the US and France who wanted him to be a firewall against Colonel Gaddafi, of Libya. However, Habré regime then became one characterized by the use of torture, among others the use of the infamous method of ‘The Abatchatar’ was widespread throughout Habré’s reign. Later discoveries of mass graves and former illegal prisons helped to understand the extent of the cruelty of Hissène Habré regime. After being overturned, and after the establishment of a truth commission, Habré fled to Senegal but not before having emptied the public treasury. He brought those riches to Senegal in order to build a strong basis for support.
While he was in Senegal, actions were being taken in order to successfully convict Habré for the crimes he committed. SoleymanGuengueng, who was tortured in the toughest illegal prison of the regime, known as ‘La Piscine,’ vowed that if he survived he would undertake everything in his power to have Habré punished and held accountable for his crimes. He thus created an association for the victims and spent years collecting their testimonies.
The evidences and the precedent of the landmarkPinochet case allowed Human Rights Watch (HRW) to step into the movement of bringing Habré to trial. In 2000, complaints were filed by victims, both in Chad and Senegal. In 2001, the discovery by HRW of the archives of the police of the Habré Regime, or the ‘DDS,’ helped in the advancement of the fight against impunity. Despite a lot of incidents and blockages - for example the failure of Belgium to have Habré extradited, the previous refusal of Senegal to try the case because it was not competent for crimes against humanity - HRW focused on the victims and their stories and lobbied to save the case.
In 2006, the African Union informed Senegal that it had to try Hissène Habré on behalf of Africa. After a multitude of ‘political and legal soap operas’ the Extraordinary African Chambers (EAC), a special court of international character, was created and the case proceeded to trial, in the meantime in Chad a trial was opened against DDS Agents. In conjunction, Senegalese judges appointed to the EAC interviewed 2.500 victims and witnesses in Chad during a one-of-its-kind in depth investigation.
On May 30th 2016, Hissène Habré was convicted of crimes against humanity, war crimes, and torture, including sexual violence and rape. However, Habré later appealed the conviction. In April 2017, the EAC’s Court of appeal upheld the conviction of crimes against humanity, torture and war crimes but overturned the charges of rape due to the fact that the charges were not in the original indictment. With his conviction confirmed in appeal, Habré will thus have to serve his life sentence in Senegal.
Jaqueline Moudeina
Executive Director, Chadian Association for the Promotion and Defence of Human Rights
The Contribution of Civil Society
For Jacqueline Moudeina bringing Habré to trial is seen as a true ‘chemin de croix,’ a pilgrimage that required heartache and sacrifices. For her, one of the obstacles is the fact that people who worked for Hissène Habré still have a place under the current government. They occupy an important place that makes them dangerous for the victims and those who accompany them. When the African Union decided to play a role in the Hissène Habré case, the victims were afraid of the politicization of the case, they thought it was a lost cause. However, the African Union put the case under the scrutiny of eminent jurists who decided that Senegal had to take the case. It was not until MackySall became president that Senegal finally decided to act.
Jacqueline Moudeina represented the victims by offering pro bono work. Due to her work with the victims and her continued attempts of bringing Habré to justice, she was victim of a grenade attack in 2001 and spent fifteen months hospitalized. This attempt on her life stimulated her fight to prosecute Habré and give voice to the victims of Chad. She was unwilling to give up and let those who harmed her get away with their crimes.
For Jacqueline Moudeina, there is a ‘devoir de memoire,’ a duty to remember and to recall all the deaths. She argues that remembering and the role of memory are important in fighting against impunity and preventing the recurrence of such crimes.
There are proceedings also being held in Chad, the chamber judged twenty accomplices of Hissène Habré.One of them was convicted of 20 years of imprisonment. Some convictions and trails remain, however, questionable. The convicted are imprisoned in the North of the country where there is little to no supervision, and some have even been able to get out of prison in order to celebrate weddings.
For Moudeina, the most important factor in such trials and the prosecution of the gravest of crimes is the victims, they should be key actors in the proceedings. Under Hissène Habré’s regime systematic rape had been used against women and as weapon of war. More than 40 women were sent into the North of Chad, into the desert to be the sexual slaves of military men. Jacqueline Moudeina recalls the story of two minors (12 and 13 years of age) and their mother. The minor, who was 12 at the time of enslavement, was freed when she turned 16, and the other when she turned 18. The primary difficulty encountered by Jacqueline Moudeina was to give voice to these women and to help them recount the atrocities to which they were victim. Especially considering the cultural significance and taboo status of rape within Chadian society. This was made more difficult as the trial was broadcast on TV and radio in Chad and Senegal throughout the proceedings. It was hard, in these circumstances, for Jacqueline Moudeina to make the victims understand the importance of their testimonies. But the day of the trial, some women spoke, namely because they were fed up with of Hissène Habré’s presence and attitude towards the proceedings.
Jacqueline Moudeina also discussed the importance of compensating the victims.
A fund was created by the African Union, but it remains empty and has no legal status and the EAC statute does not address conditions for obtaining compensation. The issue of compensation is becoming a problem and creates a conflict with the victims, they don’t understand why the money has not yet been given to them. In the meantime, some victims have already passed away, and while this procedure become extended many of the victims are getting older thus reparations need to be prioritized.
For Moudeina there is a pressing need to strengthen mechanisms, for her the success of trial cannot be total without the compensation of the victims.
Kimberly Prost
Chef du Cabinet of the President, International Criminal Court (ICC)
The Innovations of the Habré Trial as an Instance of Positive Complementarity: Lessons for the ICC
Ms. Prost describes the Habré trial as an incredible journey for justice. Stating that the efforts undertaken, the victim centred approach, the contributions by civil society amount to enormous additions to the international criminal justice system. She argues that there is an overarching need to examine the process in order to extrapolate the lessons we can learn and take away from the Habré trial. Ultimately, in order to replicate and extend the ability for positive complementarity in the whole international justice system.
She goes on to state that the Rome Statute created a system that carries forward the responsibility of States, creating an overarching system governed by the principle of positive complementarity. The ICC is not a standalone court, it recognized responsibility and rights to states. the ICC is a system that encourages a state or a group of states to carry out prosecutions. The steps taken in the Habré trial are a very good example of this governing principle. On the other hand, Ms. Prost argues that the question is one of a matter of what is realistic. Stating that the conditions in the trial were very case specific, where without such extraordinary measures and efforts justice would not have been achieved. Therefore, according to her, the Habré solution cannot merely be replicated in other instances in order to achieve positive complementarity. As a whole the Habré case can’t be replicated but we can analyse a series of steps and see what components can be replicated.
Conversely, Ms. Prost, lists certain components, both legal and political, of the Habré trial that can be replicated in national jurisdictions in order to strengthen the core of the international criminal justice system. Firstly, concerning the legal lessons: for her, many of the complications of the case focused on the problems related to retroactivity, where legislation was enacted after the fact. This situation created specific challenges where Senegal needed to incorporate international components into its national system. Therefore, Ms. Prost advocated for the pressing need to internalise core crimes of the Rome Statute into national legal systems in order to overcome this challenge before such circumstances arise. Furthermore, she argues that there is a need to increase the utilisation of universal jurisdiction, attaching extended jurisdiction both based on nationality and geographical location. Thus, increasing the web of complementarity creating instances where a multitude of states can step in.
Secondly, the use of the Convention Against Torture (CAT) demonstrates theimportance of effectively implementing existing convention law. Furthermore, concerning the whole question of the obligation to extradite or prosecute ‘autdedere, autjudicare,’ the case of Habré demonstrates the proper implementation of the principle creating pressure on states to take proportionate and immediate action. Such implementation of core principles of international law imposes actual obligations that states must undertake if they fail to take action one way or another.
Thirdly, concerning the political lessons: the Habré trial demonstrates the importance of driving political will in bringing justice to a positive outcome. How does one stimulate the political will necessary to proceed with a trial of such status? According to Ms. Prost, the importance, critical and central role of victims assisted by NGOs in the case of the Habré trial were key in driving political will. Thus, there is a grave importance and need for strengthening NGOs and civil society in enhancing positive complementarity and ensuring that victims have proper and fair access to such justice mechanisms.
Finally, Ms. Prost reiterated the notable role that the African Union (AU) played in carrying forward the trial, in coordination with Senegal, rather than putting up a road block. The enabling role of the AU further demonstrates the commitment of the African continent to pursuing international criminal justice and ending impunity for the gravest of crimes. Thus, it is important to stress the supporting role that regional organizations can play with regards to national prosecutions. The Habré Trial should be seen as role model in terms of regional and international cooperation in pursuing and uniting under the common goal of justice.
Floor Discussion
The representative of IHRC commented with regards to the funding issues of the EAC and the contribution of the Netherlands perceived as low. Furthermore, the intervenor raised a question concerning the issues of jurisdiction of the ICC with regards to bringing individuals such as Bush to justice.
The next intervener asked a question directed at Jacqueline Moudeina relating to Habré’s fleet from Chad with the majority of the Chadian treasury, the intervener asked if these funds can be used in the reparations to the victims.
The Ambassador of Senegal stated that Senegal has demonstrated strong political will through the successful prosecution of Habré, even undergoing constitutional reform in order to establish its jurisdiction in the case.
Ms. Prost, in response to the comment from the Ambassador of Senegal, stated that the Rome Statute represents a system dependent on states taking their responsibility, it is a treaty based court where its jurisdiction lies on state parties having a certain degree of jurisdiction and ability to exercise it. For her, the solution, to limited jurisdiction and disputes with regards to it, is universal jurisdiction. She argues that Senegal’s legislative approach is something to learn from, she perceives it as a great gift that Senegal can give to the rest of the world, it has the opportunity to take a leadership role across the region.
H.E. Wilker, in response to the comment raised by the IHRC representative, stated that the Netherlands ‘puts its money where their mouth is,’ you can count on the Netherlands when it comes to funding and supporting international tribunals of this kind.
The Ambassador of Chile pertinently submitted a question concerning the relation between universal jurisdiction and treaties, specifically relating to the value of universal jurisdiction when taken in isolation. She argues, that such jurisdiction may be seen as empty, fully dependent on the cooperation of states.
The Ambassador of Uganda raised a question related to the rape charges of the Habré case - specifically concerning the recently overturned rape charges during the appeal process and how this matter was handled considering that these charges were not part of the original indictment.
The next participant raised two question relating to the innovations of the Habré trial and how to implement and replicate them in future cases. Furthermore, they raised a question regarding what role their might be for African courts in the future.