Chad’s Torture Factories: ‘Justice – not African justice’

by Karen Williams 

Chad’s former leader, Hissène Habré, went on trial in Senegal this past July, accused of crimes against humanity, torture and war crimes committed during his rule. The trial comes after more than twenty years of long, hard struggle by survivors of Habré’s torture chambers and by the families of his victims. (The case in Senegal is not the only attempt to prosecute for the abuses under Habré’s rule: in March a court in Chad convicted 20 former security operatives from Habré’s government on torture and murder charges.)

Photo- Human Rights Watch

Photo credit: Human Rights Watch

The trial is the culmination of a two decades-long refusal by the victims and families to be silenced. Their determination and push for justice and accountability included the survivors’ groups approaching several courts to take the case, until the African Union (AU) was forced to find a solution that was politically and legally sound in order to try Habré. And, it was only under pressure from a Belgian court applying universal jurisdiction that eventually the AU were forced to look at the African victims. After many political and legal wrangles, the AU set up the mechanism for Senegal to host the trial.

The trial is more than simply instituting justice. It represents the longer history of articulating the unspeakable: survivors talking back to every false confession brought under torture in Habré’s cells; every plea for mercy from the jailed; every veiled threat acted upon and every person executed in the belief that Habré ruled over people whom he considered less-than, and that ultimately he thought he would get away with it.

Since the start of the trial, there has been a much-repeated dictum that the Habré trial is a triumph for “African justice”, thereby reinforcing the idea held by both Africans and non-Africans that Africans are a separate species who cannot be part of processes taken for granted and participated in by the rest of the world. This, even as trials for human rights abuses committed in Africa have set legal and moral precedents which the rest of the world has benefitted from.

But there has been no triumph for “African” justice: Habré’s trial has been informed and shaped by the global development of international jurisprudence around mass human rights abuses. This growth, in turn, was birthed by the political climate established in the 1990s where African and South American countries dealt with their own histories of mass human rights abuses.

hissene-habre-ronald-reaganFurthermore, for those painting the trial as an African judicial counter-measure to the International Criminal Court, it is important to understand that the dates of Habré’s crimes (1982-1990) precede the July 1998 establishment of the ICC by more than a decade. Therefore, the international court did not have jurisdiction over Habré’s case, and it was always a non-starter that the ICC would be able to try him.

The focus on international justice in Africa has had other precedents this year: a few weeks before the start of the Habré trial, Sudanese president, Omar al-Bashir fled an arrest warrant in South Africa that was issued by a South African High Court. Bashir was attending an African Union summit in South Africa, his first visit in many years. Previously, South Africa, like a number of other African countries had publicly committed to arresting Bashir and handing him over to the ICC should he enter the country.

The South African government refused to comply with the arrest warrant and orchestrated Bashir’s departure from South Africa. The South African government’s political figleaf was that the AU guaranteed immunity from prosecution to heads of state. This disregarded international law, South Africa’s own domestic law and its treaty obligations.

When South Africa joined the ICC on the first day of its operations, Pretoria also embarked on a process that domesticated the ICC law, thereby making it domestic, South African law. Therefore, Bashir was not only breaching an international arrest warrant, but also local South African law that deals with mass human rights abuses.

Opposition to Bashir has been sustained[1] and widespread throughout the developing world, and has been consistent in African civil society. In 2009 the South African government said that it would arrest Bashir if he entered the country. Earlier in 2015 Bashir cancelled a planned trip to Indonesia. He has also faced earlier opposition from Botswana, Malaysia, Malawi, Kenya, Nigeria and Turkey to his presence. And, in 2012, an African Union summit had to be moved from Malawi to Ethiopia, after Lilongwe said it would arrest Bashir if he entered the country. In 2013 Bashir fled Nigeria soon after arriving for an AU meeting, after local activists approached a court demanding that he be arrested.

South Africa is also not the only country where its courts have issued an arrest warrant for Bashir. In November 2011, a Kenyan judge also issued a warrant for Bashir’s arrest, as a result of his indictment by the ICC.

Human Rights Watch and the British government both expressed dismay at the decision to let him in, and a local activist group filed a court petition demanding his arrest, in line with Nigeria’s obligations under the ICC treaty.

At the time of Bashir’s escape from South Africa in 2015, Botswana’s government criticised the South Africans for refusing to comply with the court order, thereby undermining talk of a united African front against the ICC.

Yet the about-turn on Bashir does not point to any consistent position on international justice for South Africa:

The (South African) Cape Times’s main front page story on 19 November 2015 reported that “South Africa has pledged to enforce Turkey’s issuing of arrest warrants against four Israeli commanders from the Israeli Navy and the Israeli Defence Force (IDF).

In a move that sets an important international legal precedent, Turkey is seeking the arrest of the Israeli commanders for their involvement in the 2010 Israeli attacks on the Mavi Marmara aid ship, which led to the deaths of nine humanitarian activists. Turkey has welcomed South Africa’s decision to enforce the arrest warrants.

SAPS has sent a clear message to Israel that it can no longer continue carrying out war crimes with impunity and South Africa will protect the rights of its citizens,” South African attorney Ziyaad Patel told Independent Media from Turkey.[2]

South Africa’s support for the Turkish arrest warrants emphasises key issues that South Africa deliberately refused to acknowledge with the Bashir warrant: by agreeing to comply with the Turkish warrant South Africa recognised the supremacy of the courts and its decisions in a constitutional, democratic order; it furthermore acknowledged how essential it is for countries to practice the rule of law. Also, South Africa recognised that the judiciary had supremacy over political decisions, even with a country like Israel with which South Africa has had longstanding political and diplomatic ties.

By agreeing to enforce a warrant for senior security figures, it also recognised the validity of command responsibility in military and political structures: essentially, one of the principles at play in Bashir’s indictment. Furthermore, South Africa recognised that court orders and arrest warrants must be complied with.

When it is in African government’s political interest there are no calls for “African courts” and “African justice”. Then, the issue is simply a matter of what it is across the world, namely: courts, justice and accountability.

At the same time, that stringent insistence on African justice never once found its voice to finally hold Bashir and his Islamist government to account for the decades of documented evidence of policies that amounted to enslavement, mass murder and suspected genocide against citizens in Sudan and former citizens in the new Republic of South Sudan. They were victimised and wiped out because Khartoum and its Islamist Arab supremacists classified them as “African” as opposed to being Arab, and in the case of the South Sudanese, for not being Arab Muslims (and therefore ‘enslaveable’). Bashir will also likely never face accountability for being the sponsor of Joseph Kony’s Lord’s Resistance Army during the civil war in Uganda’s north.

The value of international justice and mechanisms for accountability also became apparent at the time of Bashir’s arrest warrant and Habré’s trial when the Palestinian Authority (PA) gave the International Criminal Court documentation outlining alleged Israeli crimes committed in the occupied West Bank and during the 2014 war in Gaza. Being allowed to join the ICC has been a monumental political struggle for the Palestinians.

In October 2015, during a visit to South Africa, Hamas leader, Khaled Meshal, re-affirmed the importance of the ICC to the Palestinian cause in public meetings with top South African politicians. For the Palestinians, the ICC is one of the few avenues where they could reasonably expect Israel to be held to account. The need for accountability and the belief that the ICC is likely their best hope for it has cut across the deeply entrenched rivalry between the Palestinian political parties.

For many progressive South Africans, there has always been a visceral connection to the Palestinian cause, where South Africans see a system that mirrors the key philosophy and practices of apartheid in Israel’s policies towards Palestinians.

The Palestinians have fought hard to join the ICC. With its stance on Bashir, South Africa found itself adopting a position similar to Israel’s, which says that it will refuse to cooperate with the ICC and has been opposed to the Court.

The appeal to local – and not global – standards of human rights was also undermined when at the time of the Bashir arrest, a group of prominent anti-apartheid activists in South Africa published an open letter to the British government, urging Whitehall not to scrap the Human Rights Act and replace it with a British Bill of Rights. The group’s open letter, reported in The Guardian, noted that “two decades after the British people spoke out against apartheid in South Africa, it was their turn to reciprocate with support for a country that is in danger of betraying that honourable history.”

antiapartheidheroesPublished in the Guardian on 19 July 2015, the South Africans who fought apartheid wrote that,

“Rights do not belong to any one nationality – they must be universal. Dividing people, setting their rights and freedoms apart on the basis of their passport or race, stripping them of their human rights, led to the worst abuses of the 20th century. It led to apartheid. And it can only lead to further injustice and dispossession in the future.”

Similarly, South Africans must sometimes remember the impetus to be part of the wider world which was a key form of resistance during its anti-apartheid struggle. They must remember, too, how so often extreme oppression goes hand-in-hand with talk of ‘group rights’ and the exclusion of sectors of people who do not “qualify” for human rights, alongside the willful isolation of a country or a people from international contact and international mechanisms.

But rhetoric has not stopped Pretoria from capitalising internationally on its human rights record. South Africa has in turn been approached by the Sri Lankan government, under the new president Maithripala Sirisena, to advise Colombo on the establishment of a truth commission, similar to the one held in South Africa. Colombo is also investigating establishing a criminal justice mechanism for the civil war with the Tamil Tigers.

At the same time, human rights groups within South Africa have often faulted the post-apartheid government for failing to meet its obligations towards victims of apartheid torture and crimes.

The most recent development has been South Africa’s ruling party, and one of the world’s oldest liberation movements, the African National Congress (ANC) passing a resolution to withdraw from the ICC. What is never mentioned in the political grandstanding is that the early ANC post-apartheid government of Nelson Mandela was one of the main supporters of the ICC and that Mandela nominated human rights lawyer Navi Pillay to serve on the United Nations court for Rwanda, as part of Pretoria’s commitment to strengthening international human rights frameworks.

The frequent mention of South Africa is because it is one of the more recent examples of the triumph of human rights within an oppressive state structure.

South Africa is one of the greatest recipients in modern history of a global non-racial response to its own structures of oppression. In its struggle, the South Africans joined the rest of Africa as well as the rest of the world to demonstrate consistently that there are no nuances of interpretation between being black, being African and being human. There are no qualified human beings whose needs for justice and accountability have to be separated from what is commonplace and accepted for humans across the world. The struggle for justice against oppression is not “African”: it is a universal struggle in which African people stand shoulder-to-shoulder with the rest of the world.

References:

Human Rights Watch: The Case of Hissène Habré before the Extraordinary African Chambers in Senegal

Cape Times: Israeli military chiefs face SA arrest, Cape Times, 19 Nov 2015, pg1

HRW: Justice for Serious Crimes before National Courts, Jan 15 2012,


Factbox One – Significance of Habré’s Trial

1) It is the first case in Africa to be tried according to the principal of universal jurisdiction. Human Rights Watch (HRW) explains that “Universal jurisdiction is a concept under international law that allows national courts to prosecute the most serious crimes even when committed abroad, by a foreigner and against foreign victims”[3].

2) HRW has also written that it will be the first case in the world where the courts of a country prosecute a former ruler of another country for alleged human rights abuses[4]. Habré’s case was presided over by a court president from Burkina Faso, who will be assisted by two Senegalese judges.


Factbox Two – Domesticating The Rome Statute

The ICC Act (as the law is colloquially known in South Africa) is current domestic South African law, which is why a local South African court and judges presided over the case against Bashir, and why the arrest warrant was issued by a local court. Countries (including African signatories) that have ratified the ICC’s founding treaty, the Rome Statute, have usually domesticated the law. This, in turn, has allowed Uganda to set up an International Crimes Division as part of its High Court, with a mandate to prosecute “genocide, war crimes, and crimes against humanity, in addition to other crimes including terrorism and human trafficking”.[5] Uganda was also the first investigation of the ICC – launched because President Yoweri Museveni asked the ICC to investigate the Lords’ Resistance Army.


 

[1] Much of this section is drawn from here.

[2] Israeli military chiefs face SA arrest, Cape Times, 19 Nov 2015, pg1.

[3] Human Rights Watch

[4] Liberia’s Charles Taylor and Serbia’s Slobodan Milosevic were tried in international courts set up the United Nations; Chile’s Augusto Pinochet was held on a Spanish arrest warrant in London, also issued on the principle of universal jurisdiction, although he was found mentally incapacitated and never stood trial; and Panama’s Manuel Noriega was convicted on drugs charges in an American court, and later served time for money laundering in France, after being kidnapped from his country during a US invasion, but he was never tried for crimes against humanity.

[5] HRW: Justice for Serious Crimes before National Courts, Jan 15 2012,

UPDATE 30/05/2016 Habre found guilty of crimes against humanity, torture and rape. Sentenced to life in prison

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Karen Williams works in media and human rights across Africa and Asia. She was part of the democratic gay rights movement that fought against apartheid in South Africa. She has worked in conflict areas and civil wars across the world and has written extensively on the position of women as victims and perpetrators in the west African and northern Ugandan civil wars.

This article was commissioned for our academic experimental space for long form writing edited and curated by Yasmin Gunaratnam.  A space for provocative and engaging writing from any academic discipline.

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