Africa Rights Watch

ICC Postpones Delivery of Judgment for Malian Crimes Against Humanity and Gender-Based Persecution Case

By: Joo Young Lee

Journal of Global Rights and Organizations, Associate Articles Editor

THE HAGUE, The Netherlands – On January 15, 2024, Trial Chamber X of the International Criminal Court (ICC) postponed delivery of its verdict for The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (hereinafter “Al Hassan”) pursuant to article 74 of the Rome Statute.

 
Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud at the International Criminal Court in The Hague (Netherlands) on May 23, 2023. | Photo Courtesy of the ICC.
 

Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud is accused of perpetrating war crimes and crimes against humanity in Timbuktu, Mali. He is facing charges of persecution based on religious and gender grounds, rape, torture, sexual slavery, and forced marriages that occurred between April 2012 and January 2013. The delivery of the judgment by the ICC was originally set for January 18, 2024, and a new date will be announced in due course.

Notably, the Al Hassan case marks the ICC’s first prosecution of the crime against humanity of persecution on grounds of gender pursuant to the Rome Statute. The prosecution contends that Al Hassan and his group specifically targeted women and girls for breaking a strict dress code, restrictions on freedom of movement, and rules on segregation of the sexes. According to prosecutors, Al Hassan led a police force created by the al Qaeda-linked Ansar Dine group that tormented Timbuktu, particularly targeting women who faced rape, forced marriages and sexual slavery.

The United Nations’ Women, Peace, and Security (WPS) agenda recognizes sexual violence as a weapon of war and acknowledges that it can amount to international crimes, calling for enhanced criminal accountability.

During a hearing on May 9, 2022, the defense argued that faced with dire circumstances, Al Hasan became involved with armed groups as a survival strategy. The defense maintained that Al Hasan was wrongly selected for prosecution and portrayed him as trying to maintain order in a chaotic situation in Timbuktu following the rebel takeover. The defense also argued that Al Hasan’s role in the conflict was too minor to warrant charges at the ICC for crimes against humanity.

Closing statements occurred before the ICC between May 23 and 25, 2023. Trial Chamber X of the ICC will deliver its decision on conviction or acquittal pursuant to article 74 of the Rome Statute. The Chamber bases its decision only on the applicable law and on evidence submitted before it at the trial.

For further information, please see:

Al Jazeera – ICC prosecutors: Mali rebel “enthusiastic” war crimes perpetrator – 23 May 2023

Courthouse News Service – Closing arguments begin in trial over Mali war crimes – 23 May 2023

Diplomat – ICC Trial Chamber X to deliberate on the Al Hassan case – 25 May 2023

ICC – Al Hassan case: Trial Chamber X postpones delivery of judgment – 15 Jan. 2024

ICC – Trial Judgment in Al Hassan case on 18 January 2024 – Practical information – 10 Jan. 2024

ICC – Al Hassan case: ICC Trial Chamber X to deliver Trial Judgment on 18 January 2024 – 6 Dec. 2023

ICC – ICC Trial Chamber X to deliberate on the Al Hassan case – 25 May 2023

Justice in Conflict – Writing the Jurisprudence of Gender-Based Persecution: Al Hassan on Trial at the ICC – 15 July 2020

 

Dissenting Opinion Issued in Three Tanzanian Capital Punishment Cases

By: Rachel Wallisky

Impunity Watch News Staff Writer

DODOMA, Tanzania — Of the nine new judgments the African Court on Human and Peoples’ Rights (AfCHPR) issued during its opening ceremony on November 7, 2023, three are appeals of capital sentences imposed in the United Republic of Tanzania. Arguments for these cases were all heard by the AfCHPR during its September 2023 term.

 
Gavel in the African Court on Human and Peoples’ Rights | Photo Courtesy of the AfCHPR.
 

Background

In Tanzania, a person convicted of murder or treason must be sentenced to death with few exceptions. While murder convictions are relatively rare, courts in Tanzania have interpreted the law to say that a capital sentence is mandatory for these cases. Tanzania has taken an abolitionist stance on the death penalty, having not carried out an execution since 1994. However, the law mandating capital punishment is still codified in statute and many are sentenced to death. Most murder sentences are commuted to life imprisonment. The AfCHPR has held in the past that mandatory death penalty statutes violates the right to life as guaranteed under Article 4 of the African Charter on Human and Peoples’ Rights (the Charter). Additionally, Article 6 of the International Covenant on Civil and Political Rights (ICCPR) condemns mandatory capital punishment.

The Cases

The first case, John Lazaro v. United Republic of Tanzania, is an appeal from the murder conviction of Mr. Lazaro, a Tanzanian national. Mr. Lazaro argued that several of his rights were violated during his trial by the domestic courts, including his right to life under Article 4 and right to dignity under Article 5 of the Charter. The Court agreed that Mr. Lazaro’s right to life under Article 4 had been violated by the mandatory imposition of the death penalty, and his right to dignity under Article 5 had been violated due to the method of execution prescribed by the domestic courts, namely hanging.

The second case, Makungu Misalaba v. United Republic of Tanania, is an appeal from the murder conviction of Mr. Misalaba, a Tanzanian national. Mr. Misalaba was granted a presidential pardon, and his capital sentences was commuted to life imprisonment. Mr. Misalaba stated several of his rights were violated during his trial by the domestic courts, despite his pardon, including his right to life and right to dignity under Article 4 and Article 5 of the Charter, respectively. The Court agreed that Mr. Misalaba’s right to life was violated but disagreed that his Article 5 rights were violated, awarding him with TZS 500,000 in moral damages.

The third case, Chrizant John v. United Republic of Tanania, is an appeal from the murder conviction of Mr. John, a Tanzanian national. Mr. John also argued his Article 4 and 5 rRight to Life and Right to Dignity, among other rights, were violated during his trial by domestic courts. Uniquely, Mr. John called upon the Court to order Tanzania to remove the mandatory death sentence provision for the offense of murder. The Court agreed that Mr. John’s Article 4 and 5 rights were violated and ordered Tanzania to pay TZS 500,000 in moral damages.

The Dissenting Opinion

The dissenting opinion was written by Judge Blaise Tchikaya regarding all three cases. Judge Tchikaya criticizes the court for “retreat[ing]” from the AfCHPR’s power to interpret the law. He argues that the court should have taken the initiative to state that the death penalty is contrary to Articles 4 and 5 of the Charter and States should take measures to remove it from their national legislation.

Additionally, Judge Tchikaya argues these decisions are contradictory. In the Chrizant John judgment, Judge Tchikaya criticizes the Court for finding that Mr. John’s Article 7 right to be heard was not violated because the right requires the sentence imposed to be “legally unobjectionable.” Because the death penalty is not a “legally unobjectionable” sentence, Judge Tchikaya finds Mr. John’s Article 7 rights to have been violated. In the Makungu Misalaba judgment, Judge Tchikaya argues that the majority contradicted itself by finding that Mr. Misalaba’s Article 5 right to dignity was not violated while at the same time finding his Article 4 right to life was violated, because to sentence someone to death is to violate both Article 4 and Article 5 of the Charter. For similar reasons, Judge Tchikaya argues the John Lazaro judgment is subject to the same criticisms.

For further information, please see:

AfCHPR – Dissenting Opinion of Judge Blaise Tchikaya, John Lazaro v. United Republic of Tanzania, Makungu Misalaba v. United Republic of Tanzania, Chrizant John v. United Republic of Tanzania – 7 Nov. 2023

AfCHR – Judgment on Merits and Reparations, Makungu Misalaba v. United Republic of Tanzania – 7 Nov. 2023

AfCHR – Judgment on Merits and Reparations, Chrizant John v. United Republic of Tanzania – 7 Nov. 2023

AfCHR – Judgment on Merits and Reparations, John Lazaro v. United Republic of Tanzania – 7 Nov. 2023

Amnesty International – Case on death-row detainees challenging mandatory death penalty – 25 June 2023

Parlementarians for Global Action – Tanzania and the Death Penalty

AfCHPR Orders the Tunisian Government to Allow Medical and Legal Access of Their Choice to Political Dissidents

By: Paola Andrea Suárez Luján

Impunity Watch Staff Writer

ARUSHA, Tanzania – Family members of Tunisian prisoners Rached Ghannouchi, Noureddine Bhiri, Ghazi Chaouachi, Said Ferjani, and the son of the deceased member of the Ennahda Party Ridha Bouzayene have asked the African Court on Human and People’s Rights to order the Tunisian government to provide the detainees “unimpeded access to their lawyers and to doctors of their choice” and to “provide particulars of the legal and factual grounds” of their detention and prosecution. They have also requested the suspension of the conviction of Rached Ghannouchi and the release of the prisoners.

 
Protestors in Tunis, Tunisia, carry images of political prisoners under President Saied’s government and Tunisian flags | Photo courtesy of The Guardian/Anadolu Agency.
 

The Court granted the request of the families to allow the detainees access to lawyers and doctors of their choice, as well as access to complete and adequate information regarding the basis for their detention. However, the Court refused to review the merits of the arrest or to order the release of the detainees at this stage of the proceedings.

Rached Ghannouchi, at 81 years old, is the leader of the Ennahda Party, the largest political party in the Republic of Tunisia. He was convicted on the charges of glorifying terrorism and conspiring against state security after he affirmed in the funeral eulogy of Farhat Al-Abbar, a former Ennahdha member and Al-Jazeera Correspondent, that the deceased “did not fear poverty, ruler or tyrant”. Amnesty International has declared that “the sentencing of Rashed Ghannouchi shows a growing crackdown on human rights and opposition and a deeply worrying pattern”. Ghannouchi is but one of over 40 opposing political targets who have been detained due to political charges against the Tunisian government.

The accusations came after Tunisian President Kais Saied’s self-coup in 2021, when he fired the prime minister, assumed all executive power, suspended the parliament, and dissolved the government. President Kais Seid’s strategy includes the arbitrary imposition of travel bans on political opposition, members of parliament, civilians, and journalists, and trials in violation of the right to freedom of expression under Decree-law 54. President Saied has also obtained the power to dissolve the Supreme Judicial Council formed in 2016 under Decree-law 22 and established a temporary one himself, with members of his choosing. Under Decree-Law 35, President Saied can also object to any judge’s appointment, promotion, transfer, or dismissal; he can fire judges directly and the government can assume disciplinary procedures against judges.

Ghannouchi and other detainees have undertaken hunger strikes in protest of what they consider a “judicial sham” and a violation of their right to a fair trial. As the number of human rights violations and political persecution increases, the detainees’ families have moved to continue their pleas to the International Criminal Court, in their hope that the Court will investigate the actions of the Tunisian government and order the release of their relatives.

For further information, please see:

AfCHPR – The Matter of Moadh Kheriki Ghannouchi and Others v. Republic of Tunisia – 28 Aug. 2023

Agencia Anadolu – Tunisie : Ghannouchi demeure libre après avoir été entendu par le pôle judiciaire de lutte contre le terrorismo – 21 Feb. 2023

Amnesty International – Human Rights Under Assault Two Years After President Saied’s Power Grap

Amnesty International – Tunisia: Drop trumped-up charges against arbitrarily detained political dissidents – 10 Oct. 2023

Amnesty International – Tunisia: President must lift arbitrary travel bans – 26 Aug. 2021

Associated Press – Families of imprisoned Tunisian dissidents head to the International Criminal Court – 25 Oct. 2023

Carnegie Endowment for International Peace – One Year Later, Tunisia’s President Has Reversed Nearly a Decade of Democratic Gains – 22 July 2022

Le Monde – Tunisia: Opposition party leader Rached Ghannouchi sentenced to a year in prison – 15 May 2023

Non-Compliance with AfCHPR Threatens Court’s Existence

By: Tiffany Johnson

Impunity Watch News Staff Writer

The African Court on Human and Peoples’ Rights (AfCHPR) is facing an existential crisis as countries continue to defy its decisions. This regional institution is dedicated to upholding human rights across the continent, and countries’ defiance undermines the AfCHPR’s existence. The Organization of African Unity (OAU), the forerunner of the African Union (AU), adopted a protocol in Burkina Faso in 1998, which led to the establishment of the AfCHPR. In 2004, the agreement went into effect after being ratified by more than fifteen nations. The Court’s initial judges were chosen in 2006, and its initial decision was rendered in 2009.  

 
         Group photo of court justices | Photo Courtesy of Ghana News Agency
 

The AfCHPR and any other pertinent human rights treaties that have been ratified by the state in question are both circumstances in which the court will consider involving alleged violations of human rights. It was founded with a noble mission – to provide a legal platform for individuals and communities to seek redress for human rights violations. One of its remedies is to provide just recompense or make amends. Its judgments are legally binding, and signatory nations are obligated to comply with its rulings. Yet, the Court’s effectiveness is under threat as several African countries openly disregard its decisions.  

The Court’s authority, and ability to protect fundamental human rights in Africa are at stake due to persistent non-compliance. According to a report released earlier this year on the Court’s activities in 2021, states’ “poor level of compliance” with its rulings was a significant issue. During the Court’s 16-year existence only a small number of judgments and orders were implemented out of more than the 200 that were issued. However, a majority have been disregarded by the respondent nations.  According to the report, “as of July 2021, only 7% of judgments of the Court had been fully complied with, 18% partially complied and 75% non-compliance. Some States have stated clearly before the Executive Council that they will not comply with the Court’s decisions.” 

By end of 2020, the governments of Benin, Côte d’Ivoire, and Tanzania had all revoked the right of individuals and non-governmental organizations to register cases directly with the Court. Rwanda revoked this privilege in 2016, bringing the total number of nations restricting access to this vital path to justice to four. All three governments revoked this right in response to what they perceived to be unfavorable decisions, a rise in intolerance towards human rights defenders, and a general deterioration of national human rights conditions. Tanzania withdrew the privilege, falsely claiming that the Court entertained matters that should have been handled by national courts. Benin disagreed with the Court’s decision to defer the seizure of an applicant’s property in a dispute with a bank, arguing that the decision undermined the country’s economic and political stability. 

Most recently, the AfCHPR concluded its 70th Ordinary Session on September 29, 2023. It issued fifteen rulings on September 5, 2023. Responses to these 15 rulings will be foretelling. Despite the Court’s directive, little progress has been made to rectify this injustice, calling into question Tanzania’s commitment to upholding the Court’s decisions.  

Cases such as these, regrettably, are not isolated instances. The reasons for non-compliance are multifaceted and include political considerations, limited resources, lack of awareness among government officials and the public regarding the Court’s authority, and concerns over external interference. The implications of non-compliance are far-reaching. They erode the trust in the AfCHPR and weaken its power to protect human rights. If countries can choose to disregard the Court’s rulings with impunity, the very purpose of the Court is undermined, and the dream of justice for human rights abuses in Africa remains elusive. 

To ensure the survival and effectiveness of the AfCHPR, a multi-pronged approach is necessary. Primarily, it is essential for member states to honor their obligations and comply with the Court’s decisions. The African Union can play a pivotal role by engaging in diplomatic efforts to encourage compliance and emphasizing the importance of a united commitment to human rights. 

Additionally, public awareness campaigns should be launched to educate citizens and government officials alike about the AfCHPR’s role and authority, underlining how it plays a critical role in promoting justice and accountability on the continent. 

Moreover, international pressure and cooperation can be instrumental in holding non-compliant countries accountable. The international community can work collectively to stress the importance of human rights and the necessity for all nations to adhere to international norms and agreements. 

The African Court on Human and Peoples’ Rights, a beacon of hope for justice and human rights in Africa, stands at a crossroads. The threat of non-compliance with its decisions jeopardizes the very existence of this crucial institution. It is a call to action for African nations, the African Union, and the global community to come together and safeguard the AfCHPR’s authority and its mission of promoting and protecting human rights across the continent. Failure to address this issue may result in the erosion of fundamental human rights in Africa and a setback for justice and accountability. 

For further information, please see:

Amnesty International – Why the African Court should Matter to you – 9 Jun 2023

Fair Planet – African Court on Human and People’s Rights Faces Uncertain Future – 26 Nov 2022

Netherlands Quarterly of Human Rights – Is the African Court on Human and Peoples’ Rights in an Existential Crisis? – 1 Mar 2022

The Conversation – Successes of African Human Rights Court undermined by resistance from states – 31 Aug 2021

University of the Witwatersrand – African Human Rights Court undermined by resistance African Human Rights Court undermined by resistance from states – 29 Aug 2021

Amnesty International – Africa: Regional human rights bodies struggle to uphold rights amid political headwinds – 21 Oct 2020

Brooklyn Journal of International Law – From Commitment to Compliance: From Commitment to Compliance: Enforceability of Remedial Orders of African Human Rights Bodies – 2015

 

 

 

 

ICC Drops 20 Charges of War Crimes and Crimes Against Humanity Against Central African Republic Leader

By: Christina Bradic, Impunity Watch News Staff Writer

The Hague, Netherlands – On October 16, 2023, the International Criminal Court (ICC) dropped war crime charges against Maxime Jeoffroy Eli Mokom Gawaka, of the Central African Republic. This is only the third time in the history of the court that an ICC prosecutor has dropped a criminal case.

 
Maxim Mokom in October 2020, when he was Minister of Disarmament, Demobilization, Reintegration and Repatriation (DDRR) in the Central African Republic | Photo courtesy of Justice Info, Minusca
 

On March 14, 2022, Mokom was arrested in Chad. Authorities subsequently surrendered him to the ICC. Prior to dropping his case, Mokom was facing twenty charges of war crimes and crimes against humanity stemming from actions in 2013 and 2014 when Mokom was the National Coordinator of Operations of the Anti-Balaka. Charges included murder, torture, extermination, deportation, and persecution.

In the Central African Republic in 2013, President Francois Bozize was ousted during a coup led by Seleka, an alliance of predominantly Muslim armed rebel groups. In response, Anti-Balaka, an alliance of predominantly Christian militia groups, executed reprisal attacks, including ones targeting Muslim civilians. Violence between the two groups escalated. By mid-May of 2014, it was estimated that thousands of people were killed and more than 750,000 people, majority Muslim, were forcibly displaced. During this time, Mokom, as a leader of Anti-Balaka, was suspected of the war crimes of directing attacks on civilian populations, an attack on humanitarian assistance personnel, and enlisting children as fighters.

The Prosecutor of the ICC informed the judge last week that with the available evidence and changed witness and testimonial availability, there is no longer “reasonable prospect of conviction.”

Mokom has continually denied the court’s charges and any involvement in attacks on Muslim civilians. In a statement he said that he is, “dedicated to the search for peace.” He also holds that he was a refugee in the Democratic Republic of Congo for a significant portion of the period during which the charges occurred. The defense team is considering asking for compensation for the 19 months during which Mokom was held in the court’s detention facility in Scheveningen, The Hague, Netherlands.

A lawyer representing the victims expressed disappointment, calling this outcome, “unfair and a betrayal,” and stating that victims were, “sad and immensely disappointed.” The case prosecutor said in a statement, “I am very conscious that this news may be unwelcome to many survivors and their families, [and] I hope many will understand my legal and ethical responsibilities to be guided by the law and the evidence.”

The action to withdraw charges was without prejudice, allowing a new trial if additional witnesses or evidence becomes available in relation to crimes under the court’s jurisdiction.

For further information, please see:

ABC News – ICC drops war crimes charges against former Central African Republic government minister – 19. Oct. 2023 

Africa News – Central African Republic ex-militia leader released by ICC – 20. Oct. 2023

France 24  –  Ex-CAR militia leader freed by ICC after all charges dropped – 20. Oct. 2023

ICC – Prosecutor withdraws charges against Maxime Mokom in the situation in the Central African Republic – 19. Oct. 2023

Radio France International – ICC releases Central Africa militia leader after dropping charges – 20. Oct. 2023