Alemayehu G Mariam

The International Criminal Court (ICC) is on the chase; and over the past few months, things have taken a slow turn for the worse for African dictators and human rights violators. They are finding out that they can’t run and they can’t hide.

Laurent “Cling-to-power-at-any-cost” Gbagbo of Cote d’Ivoire was snatched from his palatial hiding place in April 2011 after he defiantly refused to give up power to Alassane Ouattara in a presidential election certified by international observers in December 2010. In late November 2011, Gbagbo was  quietly whisked away to the Hague from house arrest in Korhogo in the north of the country to face justice before the  ICC on charges of crimes against humanity (murder, rape and other forms of sexual violence, persecution and other inhuman acts) that were allegedly committed during the post-election period. The U.N. estimates well over three thousand people died between December 2010 and April 2011 as a result of extrajudicial killings by supporters of Gbagbo and Ouattara. Gbagbo is the second former head of state to be tried by the ICC since it was set up in 2002.

Last week, a High Court judge in Kenya ordered Kenyan officials to arrest and deliver Sudan’s president Omar Al-Bashir to the ICC to face charges of crimes against humanity, war crimes and genocide if he ever set foot again in Kenya. The U.N. estimates well over 300,000 people have perished under Bashir’s regime. Bashir unsuccessfully claimed immunity from prosecution as a sitting head of state. Nearly all of the other unindicted African dictators have chimed in to severely criticize the ICC and demand suspension of Bashir’s arrest warrant. Five other suspects are also sought on ICC warrants in the Sudan including Ahmed Haroun, a lawyer and minister of humanitarian affairs, Ali Kushayb, a former senior Janjaweed (local militiamen allied with the Sudanese regime against Darfur rebels), Bahr Idriss Abu Garda, a rebel leader and two others.

In another development in Kenya last week, Uhuru Kenyatta, finance minister and son of Kenya’s famed independence leader Jomo Kenyatta, resigned following an ICC ruling  that he will face trial for crimes against humanity in connection with the communal post-election violence between supporters of presidential candidates Raila Odinga and Mwai Kibaki in 2008. The U.N. estimates some 1,200 people died in weeks of unrest between December 2007 and February 2008 and 600,000 people were forcibly displaced. Cabinet secretary Francis Muthaura, a close ally of president Mwai Kibaki, former Education Minister William Ruto and radio announcer Joshua arap Sang face similar charges.

The ICC had also issued arrest warrants for Moammar Gaddafi, his son Saif al-Islam and Libyan intelligence chief Abdullah al-Senussi on charges of crimes against humanity. Last week, Libya’s Justice Minster announced that Libya, and not the ICC, will be trying Saif al-Islam. Al-Senoussi remains a fugitive from justice.

Last but not forgotten is former Liberian president Charles Taylor who went on trial on charges of crimes against humanity and war crimes in The Hague before the Special Court for Sierra Leone. He is awaiting a verdict after a nearly three and half year trial.

The ICC presently has open investigations against individuals in various countries including Uganda, DR Congo, Central African Republic, Darfur and Cote d’Ivoire. The rogue’s gallery of suspects sought in ICC issued arrest warrants for crimes against humanity and war crimes include five senior leaders of the “Lord’s Resistance Army” in Uganda including the notorious Joseph Kony and his deputy Vincent Otti and three other top commanders. In the DR Congo various rebel and militia leaders and Congolese military officers and politicians including  Thomas Lubanga Dyilo, Jean-Pierre Bemba Gombo, Bosco Ntaganda, Mathieu Ngudjolo Chui and two others are targets of ICC investigation.

No ICC, No Justice?

The ICC, established in 2002, is an institution with a lot of  legal and political limitations in its investigative and prosecutorial duties.  For instance, it has authority over “crimes against humanity” only if the acts were “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” The crimes must have been “extensively or rationally orchestrated” by the perpetrators. The ICC can investigate cases only where the accused is a national of a state party that has accepted ICC jurisdiction and the alleged crime took place on the territory of a state party, or if a “situation” is referred by the Security council. Most importantly, it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes.

The ICC has a very difficult job to do in investigating and chasing the world’s worst human rights violations across the planet. Despite its recent establishment, obstacles and limitations, it has a respectable record. As of September 2010, the Office of the ICC Prosecutor had received 8,874 “communications” about alleged human rights violations. After an initial review, it declined to proceed with  4,002 of them concluding that they are “manifestly outside the jurisdiction of the Court”. To date, the Court has opened investigations in seven African countries.  Three investigations began following referral by state parties, the UN Security Council referred two more (Darfur and Libya) and two were begun proprio motu (“ICC prosecutor began on his own initiative”). To date, the ICC has charged 27 people and issued arrest warrants for 18 more.  Five individuals are in various stages of trial and eight remain at large as fugitives. Two individuals died before their trials concluded and charges were dismissed against four.

The one unsettled question is what happens to those individuals who commit crimes against humanity, war crimes and genocide in official or unofficial capacity but cannot be prosecuted because they are not part of the regime of the Rome Statute which established the ICC. For instance, Ethiopia has not ratified or accepted the Rome Statute and technically does not come under ICC jurisdiction. Does that mean the individuals who perpetrated crimes against humanity and war crimes in that country will never be held accountable under any international system of criminal justice?

The evidence of crimes against humanity and war crimes in Ethiopia is fully documented, substantial and overwhelming. An official Inquiry Commission report in 2006 documented the extrajudicial killing of at least 193 persons, wounding of 763 others and arbitrary imprisonment of nearly 30,000 persons in the post-2005 election period in that country. There are at least 237 individuals identified and implicated in these crimes. In December 2003, in Gambella, Ethiopia, 424 individuals died in extrajudicial killings by security forces.  In the Ogaden, reprisal “executions of 150 individuals” and 37 others were documented by Human Rights Watch in 2008 which charged:

Ethiopian military personnel who ordered or participated in attacks on civilians should be held responsible for war crimes. Senior military and civilian officials who knew or should have known of such crimes but took no action may be criminally liable as a matter of command responsibility. The widespread and apparently systematic nature of the attacks on villages throughout Somali Region is strong evidence that the killings, torture, rape, and forced displacement are also crimes against humanity for which the Ethiopian government bears ultimate responsibility.

In 2010, Human Rights Watch made a  submission to the U.N. Committee Against Torture “regarding serious patterns of torture and other cruel, inhuman, and degrading treatment in Ethiopia.”

Torture and ill-treatment have been used by Ethiopia’s police, military, and other members of the security forces to punish a spectrum of perceived dissenters, including university students, members of the political opposition, and alleged supporters of insurgent groups, as well as alleged terrorist suspects. Human Rights Watch has documented incidents of torture and ill-treatment by Ethiopian security forces in a range of settings. The frequency, ubiquity, and patterns of abuse by agents of the central and state governments demonstrate systematic mistreatment involving commanding officers, not random activity by rogue soldiers and police officers. In several cases documented by Human Rights Watch, military commanders participated personally in torture.

Universal Jurisdiction

The are obvious limits to the globalization of criminal justice under the ICC regime. But does that mean human rights violators who are not subject to ICC jurisdiction get away with murder, torture, war crimes and genocide? Maybe not.

There is an encouraging trend globally that more and more national courts are willing to operate under the doctrine of universal jurisdiction to prosecute gross human rights violators for atrocities committed outside their countries. Simply stated, if someone who committed crimes against humanity, war crimes or genocide is found in another country where the crimes were not committed, that country makes it its obligation to bring the perpetrator to justice using its own courts. For instance, Article 5 of the United Nations Convention Against Torture and Cruel, Inhuman or Degrading Treatment and Punishment provides that each State shall “take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him.”

Universal jurisdiction has been exercised in a number of high profile cases. A Spanish judge charged former Chilean president Augusto Pinochet in 1998 for crimes against humanity committed in Chile. After years of appeal and delays, Pinochet died in 2006 without facing justice.  A Belgian court in 2001 convicted the killers of two Rwandan nuns for war crimes during the 1994 Rwandan genocide. A Belgian court in 2005 indicted the former president of Chad, Hissène Habré, for crimes against humanity, torture, war crimes and other human rights  violations committed during his presidency in Chad. Two weeks ago, a Senegalese court blocked the extradition of the Chadian dictator because Belgium failed to file the “original arrest warrant and other papers”. A German court has convicted a former leader of a paramilitary Serb group for acts of genocide committed in Bosnia and Herzegovina in 1997.  Over the past several decades, more than 15 countries have exercised universal jurisdiction in investigations or prosecutions of persons suspected of crimes under international law including Australia, Belgium, Canada, France, Germany, Netherlands, Norway, Spain, the UK and the United States of America.

There are other non-criminal legal remedies as well. For instance, the Human Rights Violators and War Crimes Unit (HRVWCU) in the U.S. Immigration and Customs Enforcement’s (ICE) National Security Investigations Division conducts investigations to prevent foreign war crimes suspects, persecutors and human rights abusers from entering the United States. It also identifies, prosecutes and deports such offenders who have entered the U.S. Over the past 8 years, ICE has arrested more than 200 individuals for human rights-related violations under various criminal and/or immigration statutes and deported more than 400 known or suspected human rights violators from the United States. Currently, ICE is pursuing more than 1,900 leads and removal cases involving suspected human rights violators from nearly 95 different countries. HRVWCU receives anonymous tips and information from those who report suspected war criminals and human rights violators residing in the U.S.  Individuals seeking to report suspected human rights violators may contact the HRV unit at [email protected]   

Justice Delayed is Not Justice Denied, Just Delayed

Justice delayed is just delayed. The victims of former Chilean dictator Gen. Augusto Pinochet might have thought justice delayed is justice denied. So may have thought the victims of Argentina’s Dirty War. The facts are very encouraging. Since December 2006, Chilean prosecutors and judges have convicted hundreds of former military personnel in the Pinochet regime accused of committing grave human rights violations. As of July 2008, 482 former military personnel and civilian collaborators were facing charges for a variety of offenses classified under crimes against humanity. Among these, 256 had been convicted, of whom 83 had had their convictions confirmed on appeal. In the Argentine Dirty War (the generals’ war against thousands of activists, militants, trade unionists, students, journalists and others), the mighty generals have been held to account. Many of the top military officers involved including Leopoldo Galtieri, general and President of Argentina, Jorge Rafael Videla, former senior Army commander and de facto President and other lesser known top officers were tried and sentenced to life imprisonment or long prison terms. Hosni Mubarak, Egypt’s dictator for over three decades, his sons, interior minsiter and others are today facing justice in an Egyptian court. Syria’s Bashar al-Assad of Syria and Ali Saleh of Yemen will no doubt face justice in Syria, Yemen or elsewhere. Justice will also arrive like a slow, chugging and delayed train for those who have committed crimes against humanity and war crimes in Ethiopia.

Previous commentaries by the author are available at: www.huffingtonpost.com/alemayehu-g-mariam/ and http://open.salon.com/blog/almariam/