By Amy Flick
One of the first programs in ASIL’s 2018 Annual Meeting was a look at how victim-led prosecution efforts after mass human rights events can be more effective than those brought by states. The panel, moderated by Reed Brody of Human Rights Watch, focused on the case against Hissène Habré, the former dictator of Chad. One of the speakers was Souleymane Guengueng, one of the Habré regime’s victims and an activist with the AVCRP, the Chadian Association of Victims of Political Repression and Crime. Guengueng was praised by Brody and the other speakers as a hero.
Brody and Guengueng told his story of having been imprisoned and tortured and having vowed while in prison to seek justice. Once freed after the fall of Habré’s regime, he worked with Human Rights Watch and the ATPDH (the Chadian Association for the Promotion and Defense of Human Rights) to bring a case in Senegal against Habré and his henchmen. Souleymane Guengueng gathered documents and victim statements, and he and other victims persuaded Belgium to retain the Habré case even after it had repealed its universal jurisdiction law. After Belgium asked the International Court of Justice to order Senegal to prosecute the case or extradite Habré, the ICJ ruled that Senegal must submit the case to competent authorities for prosecution or extradite him. Only then did Senegal and the African Union establish the Extraordinary African Chambers, and Hissène Habré was indicted for crimes against humanity, torture, and war crimes.
Testimony from victims and witnesses, and the thousands of documents recovered by Human Rights Watch, were crucial to the Extraordinary Chambers case. Jacqueline Moudeïna, a lawyers for the victims, was almost assassinated, but she persisted with the case and was a key to getting witnesses to testify about the acts of sexual slavery committed by Habré and his men. Guengueng concluded by saying that he maintained his story and worked for justice for 18 years and Habré was convicted. He said that torture victims must know what they want to come from their case, and in his case he wanted justice; if he had not seen the case through, he would be dead. Reed Brody noted that the conviction was upheld in April 2017; damages have not yet been paid, but the conviction was still a victory for the victims. Details about the Hissène Habré are in Brody’s paper on the case, Victims Bring a Dictator to Justice: The Case of Hissène Habré.
Kathy Roberts of The Center for Justice & Accountability spoke about the role of lawyers representing victims of atrocities, emphasizing that they are dedicated to the victims, while attorneys for the state have other priorities to consider. She pointed out that in the United States, victims cannot bring a criminal action, but they can find a forum by bringing a civil case under the Alien Tort Statute and the Victims of Torture Act. She discussed the case of Mohammed Samantar v. Yousuf, brought in the U.S. courts against Samantar for crimes against humanity committed during the civil war in Somalia. There was no international interest in the case, and Somalia was a U.S. ally, but victims were active in building routes to justice. After the massacre of the Issa people in Northern Somalia, survivors of torture interviewed fellow survivors and refugees. Amnesty International connected them with attorneys who filed the case in the U.S. courts, and took other actions such as helping to find mass graves and identify bodies.
Roberts noted that victims may have a mistrust of government authorities, including the courts. She compared the cases in the Special Judicial Chambers in Tunisia, which had strong victims and attorneys comfortable with bringing cases in the French-based civil law system, with the Special Chambers in Kosovo, where victims have only recently been allowed as parties to the case under the Criminal Procedure Code, and attorneys involved in international tribunals in Kosovo for years, with relationships to the victims, were not qualified to appear in the Special Chambers courts. In Kosovo, victims often do not know what is happening in their cases.
Diane Orentlicher of American University Washington College of Law and author of the book Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia, spoke last. She described how the lessons learned in the International Criminal Tribunal for the former Yugoslavia on the struggles of victims to be heard were recognized in the creation of the International Criminal Court. Delays in the ICTY meant that justice did not have the impact for victims that it would have coming sooner. The creation of the ICTY was a welcome development, but victims of the atrocities were already working, doing interviews, taking photos, and creating records. Rape victims had begun documenting what had happened to them and gathering testimony before the NATO intervention, even at great personal peril. The ICTY did not see the survivors as their primary constituency. The ICC was set up with more detailed provisions for victim participation than the ICTY had. The need for victims to be kept informed was recognized. Orentlicher stressed that tribunals need to acknowledge the importance of victim witnesses and their lawyers, and they need to reach out to local communities to convey the message that the tribunal is about the survivors.