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The IBA’s response to the war in Ukraine
Several key convictions of former heads of state for war crimes have made 2016 a ground-breaking year for the global fight to end impunity.
Separate cases at the International Criminal Court (ICC) in the Hague, the International Criminal Tribunal for the former Yugoslavia (ICTY) and most recently at the Extraordinary African Chambers in Senegal have resulted in landmark convictions.
Perhaps the most remarkable of these was the recent conviction of Hissène Habré, who was finally brought to justice in May for his role in killing 40,000 civilians and torturing 200,000 in Chad from 1982-1990.
|Fatou Bensouda, ICC Chief Prosecutor, on 'African bias' claims|
Legal experts agree that the very nature of the Habré trial was extraordinary in many respects, from the role of the victims in fighting for justice, to the involvement of the Belgian authorities and the African Union (AU) in pushing Senegal, where Habré has resided since 1990, into setting up the ad hoc tribunal.
Simon Adams, Executive Director of the Global Centre for the Responsibility to Protect in New York, says Habré’s conviction is significant, but particularly in the context of the trials that have already taken place this year.
‘This is the third major trial this year – we’ve had Jean-Pierre Bemba, the Congolese warlord who was found guilty at the ICC; we’ve had Radovan Karadžic, the former Bosnia Serb leader who was found guilty at the ICTY; and then more recently we’ve had the trial of Hissène Habré at the Extraordinary African Chambers in Senegal,’ he says.
‘I think the world just became a little bit smaller for those who perpetrate atrocities and then think that the worst-case scenario for them is that they might have to eventually leave their country and then go and live in exile somewhere in luxury. I think that’s enormously important and positive.’
Baroness Helena Kennedy, Co-Chair of the IBA Human Rights Institute, agrees the Habré conviction is an important milestone for victims of sexual violence in conflict areas. ‘I think the conviction is an important step in breaking the impunity that has existed, but also in recognising sexual violence as part of the crimes of conflict,’ she says.
Fatou Bensouda, ICC Chief Prosecutor, says the Habré conviction holds particular importance for ending impunity for these types of crimes in Africa. ‘For me, ending impunity for sexual and gender-based crimes is really one of the top priorities for my office,’ she told Global Insight in a telephone interview.
‘As an African and a person who is firmly committed to the cause of international criminal justice in the continent and beyond, I consider this verdict an important achievement in the fight against impunity for atrocity crimes. Senegal, the African Union and all the other parties who contributed to the realisation of this trial deserve credit and they deserve praise.’
Global Centre for the Responsibility to Protect
Bensouda notes the decision may still be appealed, but believes the conviction still sends a strong message. ‘For perpetrators and would-be perpetrators the message I see is clear, that mass atrocities will not be tolerated and no-one is above the law and irrespective of official status or position of authority if you commit these serious crimes you will be held accountable and it is only a question of time,’ she says.
The AU’s involvement in the trial is particularly interesting given the growing tensions between the AU and the ICC, with many AU members arguing that the Court focuses disproportionately on African leaders.
However, Bensouda was emphatic on the matter when speaking to Global Insight in October 2015, that ‘there has never been any African bias’ at the ICC and ‘all of these countries – you can see that on their own they have requested for the ICC's intervention.’
Sternford Moyo, former President of the Law Society of Zimbabwe and Chair of the IBA African Regional Forum, agrees the AU’s claims of bias are unfounded. ‘The charge arose after four of the first situations to be dealt with by the court turned out to be cases from Africa,’ he says. ‘The heads of state ignored the following factors: The Ugandan situation was referred to the court by President Museveni; the DRC situation was referred to the court by President Kabila; and the situation in Sudan arose from a UN Security Council Resolution.’
Fatou Bensouda, ICC Chief Prosecutor
Speaking to Global Insight shortly after the Habré conviction and the ICC’s decision to sentence Jean-Pierre Bemba to 18 years imprisonment, Bensouda says her office is working hard to increase resources in order that it can take on a greater caseload, including cases outside Africa. ‘I have been able to make a case with the Assembly of States Parties requesting for additional resources to beef up my situational analysis section, which mainly deals with preliminary examinations,’ she says.
Georgia is one non-African country already on Bensouda’s radar. After conducting preliminary examinations into alleged crimes committed in and around South Ossetia in 2008, on 27 January 2016 she was authorised to conduct a fully-fledged investigation in the region.
That said, Bensouda says the ICC is not deterred from taking on African cases where the Court has jurisdiction and due cause to investigate, as exemplified by its recent intervention in Burundi. ‘In April, I found that, despite our office’s warnings and despite the escalation of violence in Burundi, nothing was being done,’ she says.
‘And as Chief Prosecutor to the ICC and as Burundi being a party to the Rome Statute I could not continue to look away. I needed to address the situation and decided to open preliminary examinations into the situation in Burundi on 25 April 2016 to really see if the Burundi authorities have been making any efforts to investigate or prosecute these crimes. I have already called out to the authorities to cooperate with my office and recently had a visit from them.’