Category Archives: Crimes against humanity

International Criminal Court says no to suspension of reparations process in Jean-Pierre Bemba Case

Convicted Congolese warlord Jean-Pierre Bemba Gombo received a huge setback recently when the Trial Chamber of the International Criminal Court on May 5, 2017 rejected his appeal which urged the Court not to continue with reparation proceedings till his pending appeal was decided.  In the case of the Prosecutor v. Jean-Pierre Bemba Gombo, decision on the defence’s request to suspend the reparations proceedings, the Court observed that Article 75 of the Rome Statute gives the Chamber the power to make a reparations order against any convicted person.

Post the conviction and the order on sentence, in July 2016 the Chamber made an order requesting submissions relevant to reparations and in October 2016 the Prosecution, Defence, Legal Representative of Victims (LRV), Office of Public Counsel for Victims (OPCV), Trust Fund for Victims (TFV) and the Registry filed their observations on reparations. Finally in February 2017, the Chamber issued an order inviting submissions on experts to assist the Chamber in its determinations on reparations.

The defence team of Bemba Gombo urged the Chamber to refrain from instructing expert witnesses and to suspend the reparations process at the latest after the selection of any expert(s) and the finalisation of any letter of instruction as it argued that it was inconsistent with the rights of the accused as it operated as an effective presumption of guilt and also placed a heavy burden on the defence’s resources. It argued that even in the Katanga case, the reparation proceedings started only after the withdrawal of the appeals when the LRVs asked the Chamber to set a schedule for filing observations on the principles for reparations in August 2014, two months after the parties had withdrawn their appeal.

It further argued that as reparation orders were intrinsically linked to the individual whose criminal responsibility was established in a conviction and whose culpability for these criminal acts was determined in a sentence and that an accused should not have to remedy harms that are not the result of the crimes for which he was convicted, continuing with the reparations process whilst there was an extant live appeal against conviction was inappropriate.

But the Chamber refused holding that the Appeals Chamber in Prosecutor v Lubanga (Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations”) had identified five constitutive elements, which, at a minimum, must be contained in an order for reparations: 1) it must be directed against the convicted person; 2) it must establish and inform the convicted person of his or her liability with respect to the reparations awarded in the order; 3) it must specify, and provide reasons for, the type of reparations ordered, either collective, individual or both; 4) it must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as identify the modalities of reparations that the Trial Chamber considers appropriate based on the circumstances of the specific case before it; and 5) it must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted. For addressing these elements the Chamber needed to take a number of preparatory steps. Also the legal texts of the Court contemplated that reparation proceedings may commence in parallel to a pending appeal. Referring to the established practice that preparatory steps to facilitate and expedite the reparations proceedings are launched following a conviction, it held that the issuance of a reparations order is not prejudicial to the rights of the convicted person irrespective of whether there is an appeal against the conviction decision.

The Chamber further observed that in the present proceedings reparations were only at a preliminary stage. Finally Article 64(3)(a) of the Rome Statute gave the Trial Chamber the power to suspend the proceedings if this was necessary to facilitate the fair and expeditious conduct of the proceedings. But suspending the reparations case would in fact be fatal to the fair and expeditious conduct of the proceedings.  It held that the suspension of all reparations proceedings until after the Appeals Chamber had rendered its decision would substantially impact the victims’ interests to access reparations in a timely manner. Thus the Court disallowed the relief sought by Bemba Gombo.

‘Universal Jurisdiction’ enters African continent: The landmark verdict of the Extraordinary African Chambers (Senegal) in the Hissène Habré “Africa’s Pinochet” case.

After a long and tortuous wait for more than 25 long years, justice has been finally delivered to tens of thousands of victims of Hissène Habré. The case moved from domestic to regional to International Court of Justice and was finally decided by an African court formed specially for this trial, the Extraordinary African Chambers, with its seat in Dakar, the capital city of Senegal on May 30, 2016. Hissène Habré was President of the Republic of Chad from 1982 to 1990 when he was deposed by Idriss Déby Itno. Habré has been living in exile in Senegal ever since. Habré was first indicted by a Senegalese judge in 2000 when a group of Chadian victims filed a complaint against Habré in Senegal. But the appellate courts dismissed the case on the ground that Senegalese courts lacked competence to try crimes committed abroad.

Some Habré victims who were Belgian citizens of Chadian origin, then filed a case against Habré in Belgium in 2000. The Belgian authorities investigated the case for four years and in 2005 the Belgian investigating judge issued an international warrant in absentia for the arrest of Habré, indicted as the perpetrator or co-perpetrator, of serious violations of international humanitarian law, torture, genocide, crimes against humanity and war crimes, on the basis of which Belgium requested the extradition of Habré from Senegal. But in November 2005, the Chambre d’accusation of the Dakar Court of Appeal ruled against Belgium’s extradition request, holding that as a court of ordinary law it could not extend its jurisdiction to matters relating to the investigation or prosecution of a Head of State for acts allegedly committed in the exercise of his functions.

In July 2006, the African Union called on Senegal to prosecute Habré on behalf of Africa before its own courts. Senegalese law was amended to give the country’s courts explicit universal jurisdiction over international crimes, including torture and crimes against humanity. Then the Court of Justice of the Economic Community of West African States (ECOWAS) ruled that Habré should be tried before a “special ad hoc procedure of an international character.” But Senegal again withdrew from the negotiations.

Then Belgium bought the matter before the International Court of Justice which found that the Republic of Senegal, by failing to make immediately a preliminary inquiry into the facts relating to the crimes allegedly committed by Habré and also by failing to submit the case of Habré to its competent authorities for the purpose of prosecution, had breached its obligation under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It thus held that the Republic of Senegal must, without further delay, submit the case of Habré to its competent authorities for the purpose of prosecution, if it does not extradite him. The new Senegalese government of Macky Sall (after the ouster of the Abdoulaye Wade who was considered as shielding  Habré from prosecution) reacted quickly to the ICJ judgment and negotiations resumed between Senegal and the AU which lead to an agreement to create the Extraordinary African Chambers to conduct proceedings within the Senegalese judicial system. The Extraordinary Chambers were then instituted in Dakar.

The process before the Extraordinary African Chambers was governed by its own Statute and the Senegalese Code of Criminal Procedure. The chambers have four levels. It consists of an Investigative Chamber with four Senegalese investigative judges, an Indicting Chamber of three Senegalese judges, a Trial Chamber, and an Appeals Chamber. The Trial Chamber and the Appeals Chamber each have two Senegalese judges and a president from another African Union member state.

On 16 February 2015, the Court charged Habré with the crimes of torture, homicide, executions, illegal detention, breach of physical integrity, torture, and abduction of civilians. There were various allegations including the repression of political opponents, the population in the the south, the Hagarai, and the Zagawa. After Habré took power, he began to undertake mass arrests. Initially, these were carried out against political opponents but later any Chadian citizen suspected of being part of the opposition was arrested. A 1992 Chadian Truth Commission accused Habré’s government of systematic torture and said that 40,000 people died during his rule. Most abuses were carried out by his political police, the Documentation and Security Directorate (DDS). This included extrajudicial arrests and interrogations conducted by the DDS and the BSIR, followed by incarceration in N’Djamena in DDS prisons where systematic torture was undertaken.

The Court held that there were attacks against the civil population in Chad constituting the crime of torture and crimes against humanity. Also women were forced to have sexual relationships with the DDS officers, prisons authorities, and soldiers of the BSIR which amounted to torture, rape, and crimes against humanity. There were also crimes against humanity for sexual slavery regarding the offenses in the camps. The Court thus found Habré guilty of the crimes against humanity of rape, forced slavery, murder, mass executions, kidnapping and disapearing, torture and the autonomous crime of torture. It further found him guilty of war crimes of murder, torture, inhuman treatments and illegal detention. He has been awarded life imprisonment. It is for the first time that an African Union backed court had tried and convicted a former ruler for human rights abuses.

Justice for Bosniaks and Croats; Radovan Karadzic, the “Butcher of Bosnia”, convicted by ICTY for Srebrenica massacre and seige of Sarajevo.

The war in Bosnia and Herzegovina in the early 1990s was the worst conflict in Europe since World War II. It was a civil war that tore apart the former Yugoslavia and left more than 100,000 people dead and two million displaced. Radovan Karadzic, nicknamed the “Butcher of Bosnia”, after a protracted trial was yesterday held guilty by the International Criminal Tribunal for the former Yugoslavia, an adhoc court the United Nations established to prosecute serious crimes committed during the conflicts in the former Yugoslavia, of genocide and other crimes against humanity over atrocities that Bosnian Serb forces committed during the Bosnian War from 1992 to 1995 and has been sentenced to 40 years in prison. He was the President of the National Security Council of the Serbian Republic of Bosnia and Herzegovina, and on 12th May 1992, he was elected as the President of the Presidency of the Serbian Republic of Bosnia and Herzegovina. From 17th December 1992, he was the President of the Republika Srpska. He is the most senior political figure to be convicted over the violent Bosnian wars. Slobodan Milosevic, the Serbian president who was another high profile accused, died in March 2006 pending his trial before the tribunal.

The charges against Karadzic were of genocide, crimes against humanity(namely persecution, murder, extermination, deportation, and forcible transfer) and violations of the laws or customs of war (namely murder, acts of violence the primary purpose of which was to spread terror among the civilian population, unlawful attacks on civilians, and the taking of hostages). The complete trial record amounted to over 48,000 transcript pages, over 95,000 pages of filings and over 190,000 pages of admitted exhibits!

The Court observed that during the war, the Serb Forces took control of municipalities in Bosnian Serb-claimed territory in Bosnia and Herzegovina. During the course of these well-planned and co-ordinated take-overs and after, there was an organised and systematic pattern of crimes committed against Bosnian Muslims and Bosnian Croats. Bosnian Muslims and Bosnian Croats were also removed from positions of authority and dismissed from their employment. Thousands of Bosnian Muslim and Bosnian Croat civilians were unlawfully detained in around several detention facilities across the Municipalities. There was also widespread looting of non-Serb property and extensive destruction of Bosnian Muslim and Bosnian Croat villages and property by Serb Forces in many of the Municipalities. Serb Forces also destructed mosques and churches. The Court held that the objective of his atrocities was to permanently remove Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory in Bosnia and Herzegovina.

Also in early 1993, following a series of Bosnian Serb attacks in nearby villages, the Bosnian Muslim population fled to Srebrenica, which was proclaimed a safe area. But in March 1995, Karadzic issued a Directive, ordering the armed forces to create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica. Following this, restrictions on humanitarian aid and UNPROFOR resupply convoys intensified, resulting in disastrous conditions in the Srebrenica enclave. He also eliminated the Bosnian Muslims in Srebrenica by killing thousands of men and boys of Srebrenica and forcibly removing the women, young children and some elderly men.  Also the civilian population of Sarajevo was shelled and sniped by members of the Bosnian Serb Forces. It conducted a campaign of sniping and shelling of Sarajevo with the intention to terrorise the civilian population living there resulting in thousands of killed civilians in the city. He also consistently and systematically provided misleading information to representatives of international organisations and the media. This verdict sends a powerful signal that the Head of States who order atrocities cannot escape from justice anymore.