Delivering on Domestic Justice in Africa for Atrocity Crimes

[Elise Keppler is an associate international justice director at Human Rights Watch, where she has worked since 2003 to advance justice for serious crimes before domestic, hybrid, and international courts, with a focus on crimes committed in Africa.]

West African and nearby governments came together in Dakar, Senegal in late May to discuss advancing accountability for atrocity crimes through national trials and cooperation with the International Criminal Court (ICC).

The region has seen some historic justice successes. Once powerful leaders – former Liberian president Charles Taylor and Chadian president Hissène Habré – were prosecuted and convicted of war crimes, crimes against humanity, and torture in trials presided over by domestic and regional or international judges and staff.

But how to build on those achievements to ensure justice for other victims and in different contexts is a pressing question. Recent experience suggests the need for a more sober assessment of the practical challenges of securing justice for the worst crimes domestically and to look beyond legal frameworks to actual performance when it comes to holding those responsible to account.

This is especially true as accountability at the national level is touted as the ideal venue for delivering justice wherever possible and given the limited capacity and overloaded docket at the ICC. Of course, under the principle of complementarity, the ICC only steps in where national courts are unwilling or unable to investigate and, as appropriate, to prosecute the most serious international crimes.

During the conference, more than a dozen government representatives took the floor one by one to describe their efforts to foster accountability domestically. On a positive note, states are increasingly putting in place domestic laws and procedures that can foster fair, credible trials of international crimes. These include adopting legislation making genocide, war crimes, and crimes against humanity criminal offenses under domestic law. These also include creating specialized units to investigate and prosecute these crimes, establishing truth commissions mandated to make recommendations on accountability, and holding training to enhance the capacity to investigate and prosecute serious crimes domestically.

Such initiatives can be prerequisites to accountability, but a limited focus on them risks obscuring the reality of inaction, stagnation, and blocking that too often is impeding the delivery of justice before national courts when they need to go ahead and prosecute specific cases.

The disappointments in Guinea, for example, stand out. Even where there is a degree of willingness to advance justice and available international assistance, prosecutions at the national level can far too easily become blocked, derailed, or compromised. A far higher degree of sustained political resolve than might be anticipated seems to be needed to overcome the myriad obstacles and delays that too often emerge for trials of atrocity crimes to make it to the finish line.

Guinea took an unprecedented national step when it opened and completed a judicial investigation into the massacre, rapes and other abuses committed when security forces attacked peaceful protesters at a stadium on September 28, 2009.

The progress of that investigation was halting, often only gaining short bursts of momentum when the ICC visited Guinea as part of its examination of the situation in view of a possible probe by the court and with the encouragement of an international independent expert to support the effort. But the investigation advanced; suspects – including those in official positions – were indicted, and judges heard victims, witnesses, and suspects.

 In 2017, the authorities announced the conclusion of the investigation, paving the way for a criminal trial. But five years later with no concrete progress, victims and activists are increasingly despondent about the prospects of a trial.

On the surface, specific outstanding logistical issues are being resolved, but taking a step back, there is a lot of motion that does not yield forward movement. There is, for example, the multi-year consideration and decision making around whether the trial can be conducted in an existing building with some improvements or a new building needs to be constructed. After a follow-up round of discussions, we understand a new building is in fact being constructed, but this is unsurprisingly taking a lot of time.

The organizing committee for the trial – which once seemed like a promising initiative to help ensure the trial’s efficient holding – has met inconsistently and infrequently. Meanwhile, increased abuses that occurred under Alpha Condé’s presidency, last year’s coup and Condé’s arrest, and the failed promise of a quick transition back to democratic rule – have only further challenged prospects for the trial taking place.

The situation in Liberia is different, but the upshot is similar. In 2009, a Truth and Reconciliation Commission (TRC) for Liberia produced a report that made critical conclusions on the need for a war crimes court to try atrocities committed during the country’s two civil wars. Civilians had been gunned down in their homes, villages, marketplaces, and places of worship.

 In a few cases hundreds of civilians were massacred in a matter of hours. Girls and women were subjected to horrific sexual violence including rape, gang-rape, sexual slavery, torture, and outrages on personal dignity. Villages were destroyed and looted. Children were abducted from their homes and schools and pressed into service, often after witnessing the murder of their parents.

More than a decade later, not only is there no war crimes court, but also no concrete action by the government to advance the prospects for criminal accountability. Despite robust appeals for justice from victims, activists, community leaders, and members of the public, President George Weah’s government showed only modest interest in exploring the court, after which he quickly backtracked and subsequently went silent on the issue.

At its most recent meeting on the human rights situation in Liberia at the UN, the country’s Universal Periodic Review, the government failed to even fully acknowledge the problem of impunity, and also suggested consultations that no one had heard of were taking place on the TRC report. Then, in 2021, the government implied endorsement of a proposal led by a former warlord in Liberia’s Senate to revisit the basic authority of the TRC to even recommend criminal accountability.

At the Dakar session, a Liberian deputy minister suggested that the executive branch supported the proposed war crimes court, and the legislature is really to blame for lack of progress on accountability. This assertion failed to account for the many missed opportunities the president has had to stand with victims for justice and his continued silence on prosecuting those implicated in the atrocities in recent years.

Experience in other countries shows that Liberia’s international partners – including the United Nations, United States, and European Union – have provided essential financial and technical assistance for war crimes prosecutions. When it comes to Liberia, though, diplomats have indicated to Human Rights Watch that they are not in the position to assist justice efforts absent expressions of interest by the government, however, which they have yet to receive.

In the Central African Republic, the situation is more nuanced, but deep risks have emerged for the success of accountability efforts. The government has taken major steps to limit impunity for serious crimes committed during the country’s conflicts, referring two situations to the ICC, and creating a Special Criminal Court (SCC) in partnership with the international community to prosecute serious crimes domestically.

Getting the special court – which is staffed by international and domestic practitioners – ready to begin operations was slow, but has moved ahead leading to the court’s official launch in 2018 and the opening of the first trial in April 2022. But amid this progress, in November 2021, the domestic authorities made a surprise release of an SCC suspect – a sitting government minister accused of crimes as a rebel leader –from detention without even notifying SCC officials.

Domestic officials said at the Dakar session that procedural irregularities by the special court led to this result and previously indicated that a relevant judicial order had deficiencies, but the suspect has remained at liberty without explanation. Central African officials have told Human Rights Watch that progress on justice needs to be viewed more holistically than focusing on this single suspect. Nonetheless, domestic authorities springing a war crimes suspect from detention and his continued free movement send a chilling message that justice can be bypassed and remain elusive.

The difficulties in assuring justice for serious crimes before national courts are not limited to these examples among the countries that attended the Dakar session. Côte d’Ivoire, for example, had success in creating a cell to prosecute serious crimes, but its practical efforts have dried up following the adoption of an amnesty law, even as authorities have argued that the law should not impede all atrocity crime cases. Nigeria’s uneven national trials for serious crimes committed within the context of the Boko Haram conflict have been one-sided and riddled with fair trial concerns.

The evolving situation in Gambia offers a new chapter in opportunities to see that victims have access to fair, credible trials for serious crimes. There has been significant energy and investment by government officials, in addition to practitioners, activists and victims in pressing for justice for past crimes under former President Yahya Jammeh’s rule.

The country’s landmark Truth, Reconciliation, and Reparations Commission included recommendations to ensure justice for the crimes, and a white paper on taking the commission’s recommendations forward proposed trials with international assistance. But now the question of turning those recommendations into actual prosecutions will come to the fore, no doubt with challenges to overcome. Already, we see that the government’s proposed judicial framework lacks the type of clarity and detail one would expect after years of consultations on this issue already have taken place.

Why domestic accountability efforts seem so vulnerable to hindrance or stagnation after some initial momentum or progress is often absent from policy debates on the need for such trials. In many ways, the developments are a reminder of why the ICC was so desperately needed as a court of last resort, although different issues have hindered the ICC’s performance and delivery of justice during its first two decades of operation – including for crimes committed in Nigeria and Côte d’Ivoire.

Much deeper analysis of impediments to progress and plans to better circumvent tough terrain in specific concrete contexts is needed, especially in Guinea and Liberia, including lessons learned about ways in which the involvement of international partners, including the ICC, can help yield more positive outcomes.

Frameworks, laws, procedures all will be important means to advance justice goals, but they cannot be an end in and of themselves, and all those involved should anticipate hard going even if enthusiasm for justice is high at a given moment. Detailed assessment of possible obstacles (including logistical ones) and how to overcome them, priority setting with an outlined pathway to trials and specific benchmarks, and specific requests for expert assistance from international and regional partners will be essential. And those partners must stand ready to provide that assistance, both in terms of expertise as well as financial support, that can lead to domestic capacity-building.

Government officials and justice practitioners should see themselves as accountable to the victims through transparent, regular public updates that demonstrate actual forward movement in reasonable time frames. And ultimately, expectations for and willingness to persevere to surmount political complexities, bureaucratic roadblocks, and capacity needs will be needed if accountability is to ultimately succeed.