Victims

UNIVERSAL JURISDICTION AND JUSTICE FOR THE VICTIMS: THE CASE AGAINST HISSÈNE HABRÉ

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After a two-decade campaign for justice by the victims, the trial in Senegal of the former Chadian dictator Hissène Habré is set to begin July 20, 2015. Habré will stand trial on charges of crimes against humanity, torture, and war crimes before the Extraordinary African Chambers (the chambers) in the Senegal court system.

Habré seized power in 1982, in a CIA-backed coup, and ruled with an iron fist until his overthrow in 1990. In December 1990, the CIA and state department’s Africa bureau loaded C-141 cargo planes with weapons and proceeded to save the dictator in return for his eight-year collaboration with Ronald Reagan’s covert effort to destabilize Muammar Gaddafi in Libya. Since 1990, he lived with impunity in Dakar for 22 years.

Habré’s regime has been described as oppressive, cruel and inhuman. Souleymane Guengueng, a former bookkeeper recounts how he was held on insignificant political charges for nearly three years. First, he was held in solitary confinement, then packed so tightly with other prisoners they could not even lay down to sleep. Being kept alternately in total darkness or blazing electric light, 24-hours-a-day for months on end, left him nearly blind. He was hung from his testicles after being caught leading prayers for other prisoners. While in captivity he suffered from malaria, pulmonary edema and hepatitis, losing the ability to walk for months. What he suffered exemplified Habré’s regime.

Guengueng survived until he was freed with thousands of other prisoners in December 1990, when a new set of rebels, led by Chad’s current president, Idriss Déby, ousted Habré. Habré escaped to Senegal, with some $12m he had pilfered from national bank accounts, enough for him to live comfortably and buy him political supporters in Senegal to protect him for years.

After his release, Guengueng spent months quietly collecting testimonies of other prison survivors and eventually gathered over 700 testimonies. Eventually, an American Human Rights lawyer, Reed Brody, took an interest in the case, turning those testimonies, years later, into the core of a groundbreaking legal effort by Chadian victims and Chadian and international attorneys to hold Habré accountable for his crimes. Traveling with Guengueng and other Chadian victims, Brody and his team filed the first criminal complaint against Habré in Dakar in January 2000.

Habré’s trial will be the first in the world in which the courts of one country, based on the principle of universal jurisdiction, prosecute the former ruler of another for alleged human rights crimes. The term “universal jurisdiction” refers to the idea that a national court may prosecute individuals for any serious crime against international law — such as crimes against humanity, war crimes, genocide, and torture — based on the principle that such crimes harm the international, which individual States may act to protect. Generally, universal jurisdiction is invoked when other, traditional bases of criminal jurisdiction do not exist, for example: the defendant is not a national of the State or the defendant did not commit a crime in that State’s territory or against its nationals.

The first precedent for Universal Jurisdiction was seen in the case of General Augusto Pinochet. He was indicted for human rights violations committed in his native Chile by Spanish magistrate Baltasar Garzón on 10 October 1998. He was arrested in London six days later and held for a year and a half before finally being released by the British government in March 2000. The judiciary committee of the British House of Lords (the United Kingdom’s supreme court) concluded that “international law has made it plain that certain types of conduct . . . are not acceptable conduct on the part of anyone.” Pinochet was eventually authorized to return to Chile to face charges for a number of crimes. The interpretation of international law in Ex parte Pinochet grants any magistrate anywhere in the world the power to demand extradition of a person accused of crimes against international law.

The ideal behind the concept of Universal Jurisdiction for international crimes is that it would permit governments to prosecute the perpetrators of crimes against humanity wherever they were found. Mass killers who had fallen from power could be punished regardless of where they were found. In cases where the government of the country where the atrocities took place might be too weak or compromised to prosecute, some government without a history of complicity in the crimes could reach out and punish an international criminal. The thought is that the prospect of being prosecuted anywhere might motivate some rulers to put a stop to massive crimes.

Detractors of Universal Jurisdiction state that it becomes an impediment to national reconciliation procedures set up by new democratic governments to deal with their countries’ questionable pasts. Additionally, they claim that once the Pandora’s box of jurisdiction has been opened, the political pressures on international prosecutions are difficult to control. A good example is Belgium, which, until recently, had a statute providing for jurisdiction over international crimes, whether there was any connection to Belgium or not. Its courts became a haven for political claims against national leaders, claims that had no chance in the country where the events took place. Complainants sought to prosecute Ariel Sharon for abuses in Lebanon, and former president George H.W. Bush for a bombing in Baghdad during the first Gulf War. U.S. The law was eventually amended when Defense Secretary Donald Rumsfeld, threatened to withdraw NATO headquarters from Brussels, Belgian parliament weakened the jurisdiction to the point where it is available only if the victim or the accused is Belgian.

In the case of Hissène Habré, President Obama has publicly praised Senegal’s establishment of the Extraordinary African Chambers to try the worst crimes of Habré’s government. Obama said the United States would provide resources to support the work of the tribunal. Reed Brody, counsel for the victims has stated that “[i]f Hissène Habré’s trial is conducted in a fair and transparent manner it could mark a turning point for justice in Africa.”

After 22 years seeking justice, a trial in this case is also turning point for the victims and perhaps a step in the right direction in the development of justice for international crimes.

WOULD A TROUBLES AMNESTY MAKE SENSE?

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Sinn Féin’s president, Gerry Adams, was arrested last week and questioned about his alleged role in one of the most notorious murders during the Troubles. In 1972, Jean McConville, 37, a Protestant-born Catholic convert, was dragged away from her home in the Divis flats complex in west Belfast in front of her children. She was driven across the border to the Irish Republic, shot in the head at a remote coastal spot in County Louth, and then buried in secret. She became the most famous victims of what have come to be known as the “Disappeared.”

The Disappeared make up part of one of the ugliest aspects of the history of the “Troubles” in Northern Ireland.  During this time, it is said that a specialist IRA unit was created, allegedly headed by Gerry Adams, and tasked with rooting out informers within communities and making them “disappear.” Some 16 victims were killed by the unit, many beaten and tortured before they were killed, and then hidden around the Republic of Ireland in a effort to strike fear in the nationalist community. Mr. Adams has always denied being involved with the unit or ever being a member of the IRA.

The Troubles, as Northern Ireland’s conflict came to be known, refers to a violent thirty-year conflict that began with a civil rights march in Londonderry on 5 October 1968 and formally concluded with the Good Friday Agreement on 10 April 1998. The conflict centered on the constitutional status of Northern Ireland. Catholic Irish nationalists, seeking to unify with the Irish Republic to the south, began a violent campaign against Britain and the Loyalist Protestant paramilitaries who supported British rule. This conflict resulted in more than 3,500 people killed and thousands more injured.

The Good Friday Agreement of 1998 officially put an end to the Troubles. The deal represented a historic compromise. It created a semiautonomous government body comprising both Catholics and Protestants, and called for disarmament of paramilitary groups, release of jailed combatants, and reorganization of the police force (at the time, 93 percent Protestant). Thus, minority Catholics gained a share of the political power in Northern Ireland, and the Republic of Ireland a voice in Northern Irish affairs. In return, Catholics were to relinquish the goal of a united Ireland unless the largely Protestant North voted in favor of it.

The signing of the Good Friday Agreement offered hope for peace. In a dual referendum held on 22 May 1998, voters in Northern Ireland approved the accord by a vote of 71%, and in the Irish Republic by a vote of 94%. In June 1998, voters chose the 108 members of the Northern Ireland Assembly, the locally elected government. However, in June 1999, the peace process stalled when the IRA refused to disarm prior to the formation of Northern Ireland’s new provincial cabinet. Sinn Féin insisted that the IRA would only give up weapons after the new government had been assembled; the Ulster Unionists, Northern Ireland’s largest Protestant party, demanded disarmament first. The new government did not form and brought the entire process to a halt.

By November 1999, a new government was finally formed, and on December 2nd the British government formally transferred governing powers over to the Northern Irish parliament. However, Sinn Féin had made little progress toward disarmament, and so on 12 February 2000, the British government suspended the Northern Irish parliament and once again imposed direct rule.

On 6 May 2000, the IRA announced that it would agree to put its arms “beyond use” under the supervision of international inspectors. Britain returned home rule powers to the Northern Ireland Assembly on May 30th. However, while the IRA did allow for the inspection of some of its arms dumps, the months passed without any real progress on disarmament. The fragile peace process faced another crisis when violence broke out again in Belfast. The clashes began after a group of schoolgirls and their parents were stoned by Protestant youths as they left a Catholic primary school. Rival mobs hurled gasoline bombs, stones, and bottles and set fire to cars.

At the end of 2001, the IRA announced that it had begun to disarm, and it appeared that the peace process had once again been rescued. However, in mid-June British and Irish political leaders called for emergency talks to try to stem the rising tide of violence that had been ongoing in Belfast for several weeks. The street disturbances continued into July, and a 19-year-old Catholic man was shot dead.

In July 2002, during the annual Orange Order parade through Portadown, Northern Ireland, Protestant supporters of the Orangemen (those who march in the parades) hurled stones and bricks to protest the ban on marching down Garvaghy Road, past a Catholic enclave in the town. Many police officers were injured and several people were arrested. Members of the Orange Order march to celebrate the military victory of Protestant King William of Orange over the Catholics in 1690. The “marching season” generally refers to the months April to August in Northern Ireland and “Orange Walks” are held in Protestant communities throughout Northern Ireland.

By late 2002, the situation had deteriorated. The last straw was the discovery of an alleged IRA spy operation within the Northern Ireland Assembly. The power sharing government was again suspended on Oct. 14, 2002; and, in response, the IRA suspended contact with the arms inspectors who were overseeing the disarmament of Northern Ireland’s guerilla and paramilitary groups.

In 2004, negotiations were again underway to reinstate the Northern Ireland assembly.  However, in early 2005, the brutal murder of Belfast Catholic Robert McCartney by the IRA, diminished the IRA’s standing, even in Catholic communities that had once been IRA strongholds. On July 28, 2005, the IRA stated that it was entering a new era in which it would unequivocally renounce violence.

Shortly after parliamentary elections in March 2007, Gerry Adams, the leader of Sinn Féin, and Rev. Ian Paisley, the head of the Democratic Unionist Party, met face to face for the first time and hashed out an agreement for a power-sharing government. Local government was restored to Northern Ireland in May 2007 as Rev. Ian Paisley, leader of the Democratic Unionists, and Martin McGuinness, of Sinn Féin, were sworn in as leader and deputy leader, respectively, of the Northern Ireland executive government, thus ending direct rule from London.

On Feb. 5, 2010, with the signing of the Hillsborough Castle Agreement, Gordon Brown and Brian Cowen, prime ministers of England and Ireland, created a breakthrough in the Northern Ireland peace process. Pursuant to the accord, Britain would hand over control of the six counties’ police and justice system to Northern Ireland.

Since 2010, violence in Northern Ireland has diminished but never completely stopped. In 2011, the Northern Ireland riots, a series of riots in June and July 2011, resulted in hundreds of injured and over 50 arrests. In July and August 2012, marches by the Orange Order and Royal Black Institution, both Protestant organizations, erupted into violence when one of the bands marched outside a Catholic church and played an anti-Catholic tune. The incident resulted in three consecutive nights of violence. In 2013, more than 40 days and nights of violence were triggered by a decision to cut back on the flying of the Union Jack over the City Council building in central Belfast. More than 100 police officers were injured, along with dozens of protesters and bystanders.

Even though the guns have remained largely silent since the Good Friday Agreement of 1998, street violence has continued in Northern Ireland, particularly during the summer months of “marching season.” Maintaining peace in the area is a delicate process.  Some say that Gerry Adams recent arrest has “galvanized” republicans and that his arrest in connection with the 1972 IRA abduction, murder and disappearance of Ms. McConville had sharpened Sinn Féin for the election battle. There is also concern that tearing open old wounds will result in a step backward in the peace process.

John Larkin, Northern Ireland’s attorney general, recently advocated for an end to prosecutions for Troubles-related killings, and a stoppage of police investigations, inquests or inquiries into any related killings that took place before the signing of the Good Friday Agreement in 1998. Mr. Larkin says that his proposal would not be a formal amnesty, but a logical consequence of the Agreement.

So far, the UK government has rejected all suggestions of an amnesty. Prime Minister David Cameron called the proposal “rather dangerous,” while Northern Irish politicians angrily asked how time’s passage could make murder undeserving of investigation and prosecution. Those opposed to the concept of a blanket amnesty argue that victims want truth and justice, and by denying victims the notion of justice they are being eliminated from the peace process, and their pain is ignored.

It is a complicated decision. On the one hand, a blanket amnesty would put the past behind for everyone and focus on forgiveness, while on the other; it could be denying the victims of any type of justice for their losses.  A third option proposed is the formation of a truth recovery agency that could offer limited immunity for perpetrators who spoke frankly about crimes they committed during the Troubles. This is reminiscent of The Truth and Reconciliation Commission (TRC) assembled in South Africa after the abolition of apartheid.

The Troubles remain a sad reality in Northern Ireland and their legacy continues on with no clear end in sight. There are no easy answers, the Protestants and Catholics of the North of Ireland are bound by history to share a land and they must figure out a lasting way to live as one.