International Justice Day Round-Up I: Habre, Bashir Travel, Crimes Against Humanity in Mexico

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 17^th (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 to consider 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.

2. Al-Bashir Continues to Travel Unimpeded: President Omar Al Bashir, indicted for genocide, war crimes, and crimes against humanity for events in Darfur, continues to travel to ICC states parties and non-party states (his travels are chronicled here and here). Most recently:

• Pre-Trial Chamber II (PTC II) made findings of non-compliance with respect to Uganda and Djibouti, both ICC member states. The matters were referred to the Security Council and the Assembly of States Parties as envisioned by Article 87(7) of the ICC Statute; in the past, such referrals have not generated much in the way of concrete responses.
• Al-Bashir was in Uganda to attend the May 2016 inauguration of President Yoweri Museveni, who made headlines by insulting the Court and its staff during his speech. Western diplomats—including the U.S., Canadian, and several European Union delegations—walked out of the event. State Department spokesperson Elizabeth Trudeau indicated in the daily press briefing that:

We believe that walking out in protest is an appropriate reaction to a head of state mocking efforts to ensure accountability for victims of genocide, war crimes and crimes against humanity, particularly when his country has committed to accountability as a state party to the Rome Statute.

• In response to the ICC’s note verbale, Uganda replied that it’s invitation to Al-Bashir to attend the inauguration was informed by:

the standpoint that good relations with all countries in the region is essential to the maintenance of peace and security and that continuous engagement of all the leaders, Al-Bashir included, is both important and unavoidable; and

the decision of the African Union Assembly of Heads of State and Government that AU member states shall not cooperate with the Court’s request for arrest and surrender of Omar Al-Bashir to the Court [due to Al-Bashir’s putative head-of-state immunity].

I’ve discussed, and I hope debunked, the immunity arguments here. In its reply to the Court, Djibouti raised the immunity arguments and also indicated that (1) it lacks national procedures required under Part 9 of the ICC Statute for the arrest and surrender of suspects to the Court and (2) is part of a “peace process” involving Sudan and South Sudan under the auspices of the Intergovernmental Authority on Development (IGAD), which promotes regional cooperation in the Horn of Africa. The PTC addressed the latter argument as follows:

State Parties to the Statute must pursue any legitimate, or even desirable, political objectives within the boundaries of their legal obligations vis-à-vis the Court. Indeed, it is not in the nature of legal obligations that they can be put aside or qualified for political expediency.

Professor Eric Stover and colleagues persuasively argue that the Security Council should amend its referral resolution (UNSCR 1593 of 2005) and order all states, not just Sudan, to cooperate with the ICC and effectuate its arrest warrants. My contribution to an experts’ round table dedicated to discussing strategies for dealing with ICC fugitives is available here.

• Al-Bashir is now traveling to Rwanda for the African Union Summit. Rwanda is not an ICC member state, so any obligation to arrest and surrender Al-Bashir would stem from the U.N. Charter and the Security Council’s referral resolution. It is anticipated that some African states may raise the prospect of withdrawing from the ICC Statute at the meeting.

3. Violence in Mexico Rises to the Level of Crimes Against Humanity—The Open Society Justice Institute (OSJI) in partnership with a number of Mexican human rights organizations has come out with an important new report concluding that the violence in Mexico—at the hands of both government forces and the Zetas drug cartel—rises to the level of crimes against humanity. The report covers the entire tenure of ex-President Felipe Calderón and part of the current presidency of Enrique Peña Nieto. In an effort to tackle rising organized crime, Calderón initiated the large-scale and at times indiscriminate deployment of Mexico’s federal security forces. The report looks primarily at the actions of these federal government actors as well as violence in five of Mexico’s 31 states where the levels of killings, disappearances, and torture are disturbingly high: Coahuila, Guerrero, Nuevo León, Oaxaca, and Querétaro. Not surprisingly, the government has rejected the report’s conclusions.  Some nuance:

• Crimes against humanity are a constellation of acts made criminal under international law when they are committed within the context of a widespread or systematic attack against a civilian population. Constitutive acts include: murder, torture, arbitrary detention, persecution, sexual violence, enslavement, disappearances, apartheid, and other inhumane acts of a similar character.  The ICC Statute adds an additional policy element in the definition of “attack”, requiring proof of a course of conduct:

involving the multiple commission of acts … against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack…

This element is not required by customary international law as reflected in Article 10 of the ICC Statute:

Nothing in this Part [defining the crimes] shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.

• The policy element, to the extent it must be proven, can encompass state and non-state violence. With a situation as complex as Mexico, there may be multiple policies at work, including a governmental campaign against organized crime, structured intra- and inter-gang violence, militarized policing, cartel efforts to control territory or smuggling routes, social cleansing operations, and organized violence against migrants. In addition, so called “falsos positivos” (false positives)—a phenomenon best known in Colombia—are prevalent in Mexico as well, whereby security services—who have been encouraged to show “progress” towards eliminating narco-traffickers—kill innocent persons and attempt to implicate them in the work of the cartels by planting weapons or drugs on the corpses or staging a fire fight.
• The number of victims is staggering. Although data are incomplete, the report indicates that at least 150,000 people were intentionally killed in Mexico from 2006-2015. The U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, reported in 2013 that extrajudicial killings attributed to the government and the cartels were “widespread” and concluded that

the right to life is under serious threat in Mexico and addressing it should be a top national priority.

• A 2016 follow up report determined that while the government had introduced some measures to reduce homicides, demilitarize the police, and tackle impunity, “arbitrary deprivation of life and impunity remain serious challenges.” Tens of thousands more individuals have been subjected to enforced disappearances, with the most well-known case being the 2014 forced disappearance of 43 students in Ayotzinapa, Guerrero. Torture is also endemic; the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment of Punishment, Juan Méndez, concluded in a recent report on Mexico that “torture is generalized in Mexico,” triggering a strong reaction from the Mexican Government. Victims of these crimes against humanity include not only Mexican citizens but also Central American migrants traveling through Mexico.
• Mexico ratified the ICC Statute in 2005. Many of the NGOs involved in the OSJI report and others have submitted material to the ICC Office of the Prosecutor (OTP) urging it to move forward with an investigation.  Indeed, it is well known that the OTP has been looking at the situation in Mexico for some time. Technically, Mexico is in phase 1 of the preliminary examination process, which is to say the OTP is considering whether the basic jurisdictional requirements have been met but has not yet gone public with the fact that the situation is under consideration. (I explain the preliminary examination process at the OTP here). To a certain degree, the violence in Mexico has a different quality than the war-time or ethnically-based atrocity crimes that are the bread-and-butter of the ICC, although the numbers of victims in Mexico vastly exceeds many situation countries currently under investigation.  For example, the 2010-11 post-election violence in Côte d’Ivoire resulted in the deaths of an estimated 3,000 people.  The ICC is currently conducting a joint trial of Laurent Gbagbo, the former President of Côte d’Ivoire, and Charles Blé Goudé, the head of the Alliance of Young Patriots.
• Notwithstanding that the situation could fall within the ICC’s jurisdiction, the report urges Mexico to seek international assistance to investigate and prosecute these crimes domestically. The principle of complementarity provides that the ICC will stay its hand if any state with jurisdiction is willing and able to prosecute the crimes domestically. The OSJI report argues that:

The ICC, located in The Hague, can never equal the advantages of proximity, breadth of inquiry, or lasting impact on the development of the rule of law that credible domestic proceedings would bring. Mexico has also made numerous other relevant treaty commitments within the Inter-American and United Nations systems, and has been a champion of human rights standards on the international stage. It has been a reliable voice for human rights in many other countries around the world. Mexico has ample resources and human capital to effectively prevent, prosecute, and punish atrocity crimes—most of all those carried out by its own forces. The question is whether Mexico has the political will.

And yet it concludes that:

Successive Mexican governments have almost completely failed to ensure accountability for atrocities carried out by federal and state actors, or by organized crime.

The report outlines the main barriers to the effective prosecution of these crimes in Mexico and offers several compelling proposals to reform the criminal justice sector and improve the government’s technical capacity.  However, it identifies the lack of political will and political obstruction as the main barriers to accountability.

• Unlike other international crimes (such as genocide, terrorism, and torture), there is no multilateral treaty dedicated to defining crimes against humanity The International Law Commission is considering a potential treaty building on the work of the Crimes Against Humanity Initiative at Washington University in St. Louis School of Law.

Further international criminal justice developments will be forthcoming…