tag:theconversation.com,2011:/us/topics/international-criminal-justice-19127/articlesInternational Criminal Justice – The Conversation2017-09-20T10:14:58Ztag:theconversation.com,2011:article/836192017-09-20T10:14:58Z2017-09-20T10:14:58ZLong-hidden World War II files offer another way to prosecute war crimes<p>This is not a golden age for international justice. Donald Trump’s secretary of state, Rex Tillerson, has reportedly decided to <a href="http://www.independent.co.uk/news/world/americas/us-politics/donald-trump-state-department-war-crimes-office-genocide-investigate-and-prevent-rex-tillerson-todd-a7846756.html">close the US’s war crimes office</a>. <a href="http://archive.iccnow.org/?mod=country&iduct=36">China</a>, <a href="https://www.reuters.com/article/us-russia-icc-withdrawal-idUSKBN13B1KJ?il=0">Russia</a> and <a href="https://theconversation.com/south-africas-reasons-for-leaving-the-icc-dont-quite-add-up-67481">South Africa</a>, among others, continue to resist the International Criminal Court (ICC), while the world has yet to see proper legal proceedings against war crimes in Syria, Yemen and elsewhere. </p>
<p><a href="http://www.css.ethz.ch/en/services/digital-library/articles/article.html/88448/pdf">Some argue</a> that the whole war crimes process may turn out to be futile, and that Tillerson may be just keeping up with reality. Even advocates of international criminal justice would admit that reinforcements are needed to combat impunity for rights violators.</p>
<p>At the root of the problem is that today’s courts and tribunals were all created in the tradition of the post-World War II Nuremberg trials, in which top leaders alone were held accountable by an elite of Western and US-led intellectuals, leaders and judges. This elite-centric method of seeking justice for war crimes is profoundly limited. But newly available documents from World War II show that an entirely different approach was tried years before the Nuremberg process began – and that it was unduly closed down for political reasons.</p>
<p>In the early- to mid-1940s, the refugee governments of continental Europe began setting up a large-scale war crimes prosecution effort based in London. By 1944, 16 allies had created the UN War Crimes Commission (<a href="https://www.amazon.co.uk/America-Hitler-Allies-World-Forged/dp/1848853084">the UN being the formal name for the Allies</a>), a mechanism to provide legal advice to states and offer peer review of national prosecutions. </p>
<p>It worked well. The commission <a href="http://www.unwcc.org/">supported national indictments</a> against 36,000 people and military units, resulting in some 10,000 convictions in 2,000 trials from Shanghai to Oslo. Its 8,000 “charge files” included indictments of Adolf Hitler himself and of the death camps and deportation system of Jews across Europe – many of them written even while the Holocaust was still underway.</p>
<p>But in 1949, at the US’s insistence, the commission’s charge files were closed even to its own members. They were not even provided to federal German prosecutors until the 1980s, and it was only in 2014 that they were made public by the US and UK governments. Why?</p>
<h2>Forgotten history</h2>
<p>In part, for pragmatic reasons. As West Germany was built up to withstand and fight the Cold War, Nazi party officials and members were rehabilitated on a large scale to ensure the state could be staffed with competent bureaucrats and professionals. This meant closing down war crimes prosecutions, and ultimately releasing all those the UN commission had convicted. </p>
<p>The British notoriously <a href="https://books.google.co.uk/books?id=_pmPDgAAQBAJ&pg=PA178&lpg=PA178&dq=great+escape+nazis+released&source=bl&ots=JcIvRg-rnC&sig=qC6BiIideLG8ez_4zPfnTHz-Kf4&hl=en&sa=X&ved=0ahUKEwiMxqLIqrPWAhUFI8AKHQ0tC-84ChDoAQg0MAI#v=onepage&q=great%20escape%20nazis%20released&f=false">released Nazis awaiting trial</a> for the “Great Escape” murders of RAF officers, while anti-communist US Senator Joe McCarthy <a href="https://books.google.co.uk/books?id=fldMWJ6Kwg8C&pg=PA30&lpg=PA30&dq=joe+mccarthy+battle+bulge&source=bl&ots=JSDzsD__H2&sig=jD-T7wXPHJZ77XXES-9MWR6e-PY&hl=en&sa=X&ved=0ahUKEwjR0dfgqbPWAhWJ2RoKHeMFDqUQ6AEIQjAI#v=onepage&q=joe%20mccarthy%20battle%20bulge&f=false">came to the aid of SS men</a> convicted of murdering US prisoners during the Battle of the Bulge. </p>
<p>But besides these short-term concerns, the US and UK had another reason for undermining the commission’s achievements: a resistance to enforcing human rights from those who might themselves be guilty of violating them. </p>
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<img alt="" src="https://images.theconversation.com/files/186770/original/file-20170920-932-1kmkei7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/186770/original/file-20170920-932-1kmkei7.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=461&fit=crop&dpr=1 600w, https://images.theconversation.com/files/186770/original/file-20170920-932-1kmkei7.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=461&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/186770/original/file-20170920-932-1kmkei7.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=461&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/186770/original/file-20170920-932-1kmkei7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=580&fit=crop&dpr=1 754w, https://images.theconversation.com/files/186770/original/file-20170920-932-1kmkei7.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=580&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/186770/original/file-20170920-932-1kmkei7.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=580&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">US Senator Joseph R McCarthy.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Senator_Joseph_R._McCarthy,_ca._1954.png">Wikimedia Commons</a></span>
</figcaption>
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<p>This hostility was what stymied Franklin Roosevelt’s war crimes ambassador <a href="https://link.springer.com/article/10.1007/s10609-014-9219-y">Herbert Pell</a>. Sent to London in March 1944, Pell proposed a legal definition of crimes against humanity, garnering the support of a majority of the 16-nation commission, which included representatives of China and still-imperial India. </p>
<p>But Pell had not only <a href="https://www.jstor.org/stable/23880301">sought help for German Jews</a>, he had campaigned for African-American rights as a member of Congress. And in 1944, <a href="https://history.state.gov/departmenthistory/people/stimson-henry-lewis">Henry Stimson</a>, then US secretary of war, argued against US support for the concept of crimes against humanity on the grounds that to do so would leave the US open to prosecution for the lynchings of blacks in the South. </p>
<p>Pell was ultimately cast aside after an inter-agency Washington power struggle, and President Harry Truman dispatched <a href="https://www.roberthjackson.org/article/justice-jackson-delivers-opening-statement-at-nuremberg-november-21-1945/">Justice Robert H. Jackson</a> to set up what became the Nuremberg trials. By that time, hundreds of German and Japanese defendants had already been indicted by nations working through the UN War Crimes Commission, but it was Nuremberg that stuck in the public and legal imagination.</p>
<h2>Reality check</h2>
<p>The commission’s work was very advanced for its time, in particular its advanced polices on rape and forced prostitution and its ambition to try not only military and political elites, but thousands of low-level perpetrators. These are lofty goals by the standards of today’s international justice systems – and now the relevant files are out in the open again, their example must be taken seriously.</p>
<p>For a start, the lament that prosecuting rights violators is somehow just too difficult today rings hollow. As early as January 1942 – with VE Day more than three years away – the refugee governments of Europe, along with the Chinese, declared in London that they would create a new system of international justice.</p>
<p>While smoke still poured from Auschwitz’s chimneys, the Polish government systematically collected evidence of Nazi war crimes; the Norwegians in neutral Sweden gathered evidence from refugees, and the Belgians and Czechs were assured that their charges against Hitler would eventually be supported.</p>
<p>Yet today, there isn’t even an international system for collecting evidence and preparing charges. Can today’s governments really claim to be harder-pressed than their predecessors were while fighting the Axis powers?</p>
<p>Remembering and recognising this history can also help circumvent some difficult political terrain. A modern setup more closely resembling the commission would be harder for the likes of China, India and Ethiopia to disdain. These same countries were instrumental in creating a similar and clearly effective model 70 years ago; international prosecution need not be some neo-colonial “Western” device.</p>
<p>Meanwhile, the story of the commission’s hidden legacy is a cautionary tale in itself. Joe McCarthy and his ilk obscured this work from view so effectively that it remained hidden even when the international criminal justice project was revived in the 1990s. Rex Tillerson’s decision to close the US’s war crimes mechanism is deeply troubling – and it could help set the world back even as a way forward becomes clear once again.</p><img src="https://counter.theconversation.com/content/83619/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dan Plesch receives funding from SOAS, Oak Foundation, Carnegie Corporation. </span></em></p>Why would the US and UK want to suppress the work of a post-war human rights effort?Dan Plesch, Director of the Centre for International Studies and Diplomacy, SOAS, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/759082017-07-10T13:05:30Z2017-07-10T13:05:30ZJustice in Syria: five ways to prosecute international crime<p>The conflict in Syria has seen atrocities committed by <a href="http://www.un.org/apps/news/story.asp?NewsID=53181#.WQxLdojyuM-">all sides</a> for six long years. Barbarities are an everyday occurrence.</p>
<p>There are rules governing the conduct of warring parties. The 1949 Geneva Conventions form the core of international humanitarian law. Violating these rules is a <a href="https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule156">war crime</a>. Some atrocities go even beyond this level of criminality. <a href="https://www.theguardian.com/world/2016/jun/16/un-condemns-isis-genocide-against-yazidis-in-iraq-and-syria">Genocide</a>, for instance, is <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx">an international crime in itself</a>, while the <a href="https://www.amnesty.org/en/documents/mde24/5415/2017/en/">systematic killing of political opposition</a> would constitute a <a href="http://www.un.org/en/genocideprevention/crimes-against-humanity.html">crime against humanity</a>.</p>
<p>The existence of these offences counts for little, of course, unless the law is enforced. This raises the question: is there any way of prosecuting any side of the Syrian conflict? These are some options that could help inform the way forward. </p>
<h2>1. International Criminal Court investigation</h2>
<p>The International Criminal Court (<a href="https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">ICC</a>), based in the Hague, is designed to prosecute “the most serious crimes of concern to the international community as a whole”. So perhaps it could act in Syria.</p>
<p>The court operates on a consensual basis, so that (perhaps counterintuitively) states must sign up to it to allow the exercise of ICC jurisdiction. Syria is not a party to the court.</p>
<p>There is a workaround though. The ICC can investigate international crimes in any country if the UN Security Council requests it to do so. This happened to <a href="https://www.un.org/press/en/2005/sc8351.doc.htm">Sudan</a> in 2005 and <a href="https://www.hrw.org/news/2011/02/27/un-security-council-refers-libya-icc">Libya</a> in 2011. Despite <a href="http://www.news.admin.ch/NSBSubscriber/message/attachments/29293.pdf">best efforts</a> by lobbying states, the same has not happened in the case of Syria. Both <a href="http://www.un.org/apps/news/story.asp?NewsID=47860#.WQr0ak11odV">Russia and China blocked</a> a proposed referral in 2014 and there is little sign of them changing their minds. </p>
<h2>2. A bespoke tribunal</h2>
<p>The creation of the <a href="http://www.icty.org/">International Criminal Tribunal for the former Yugoslavia</a> by the UN Security Council in 1993 marked a watershed moment in the administration of international criminal justice. A statute was drafted and experienced judges and lawyers recruited to help build a system of accountability. The subsequent creation of a <a href="http://unictr.unmict.org/">similar institution</a> to deal with the 1994 Rwanda genocide continued the trend.</p>
<p>Such one-off approaches have since fallen out of use, however, in favour of ICC prosecution. And, crucially, a UN Security Council resolution is required to create such an international institution (historically, at least). This makes the “bespoke tribunal” option about as likely as an ICC investigation.</p>
<h2>3. A ‘hybrid’ court</h2>
<p>“Hybrid” courts run on a mix of national and international law and are staffed by both local and international lawyers, allowing for a degree of local ownership. Examples include the <a href="http://www.rscsl.org/">Special Court for Sierra Leone</a> and <a href="https://www.eccc.gov.kh/en">the Extraordinary Chambers in the Courts of Cambodia</a>. Proposals for a similar Syrian model <a href="http://www.publicinternationallawandpolicygroup.org/wp-content/uploads/2014/01/Chautauqua-Blueprint-2014.pdf">already exist</a>.</p>
<p>Such courts are, however, generally created with the consent of the state concerned. If the Bashar al-Assad regime is to remain in power in Syria this may create <a href="https://www.justsecurity.org/10928/mixed-chamber-syria-idea-time-come/">significant difficulties</a> for this approach. Its success would depend on the government’s willingness to cooperate and submit itself to investigation alongside opposition groups.</p>
<p><a href="https://www.justsecurity.org/10968/alternative-jurisdictional-bases-hybrid-tribunal-syria/">A more viable alternative</a> may be to establish a “hybrid” court in a neighbouring country such as Jordan or Turkey, though this option would similarly require cooperation from the Syrian authorities (whoever that may be) to succeed.</p>
<h2>4. Universal jurisdiction</h2>
<p>Trials of atrocities committed in Syria are, in fact, already underway. In <a href="http://www.bbc.co.uk/news/world-middle-east-31639378">Sweden</a>, <a href="http://www.rferl.org/a/second-iraqi-migrant-found-guilty-war-crimes-finland/27630118.html">Finland</a>, <a href="http://www.justiceinfo.net/en/component/k2/27104-refugees-spur-german-justice-to-tackle-syrian-war-crimes.html">Germany</a> and <a href="http://www.tagesanzeiger.ch/schweiz/standard/schweizer-justiz-ermittelt-wegen-kriegsverbrechen-in-syrien/story/21007826">Switzerland</a> refugees suspected of international crimes are being prosecuted under the doctrine of “universal jurisdiction”. This principle allows any state to prosecute any perpetrator of a serious international crime. Precedent for such action includes the recently concluded <a href="https://www.hrw.org/tag/hissene-habre">trial of the former Chadian president Hissène Habré</a> under Senegalese jurisdiction.</p>
<p>Trials brought under this principle do present their own difficulties (such as evidence acquisition) and are limited in their reach. Nevertheless this form of legal scrutiny, even at a limited level, serves as a warning to warring parties that criminal actions do have consequences.</p>
<h2>5. Trials in Syrian courts</h2>
<p>Prosecution of atrocities in the Syrian courts would present considerable logistical and financial difficulties for a ruined state. Even if national trials were feasible (if funded externally, for instance) they would risk being politically vulnerable to manipulation by the ruling elite, whoever that may be.</p>
<p>Alternatively there is the choice of avoiding justice altogether, perhaps via an act of amnesty. The present scale of inhumanity in Syria makes this a deeply troubling option.</p>
<h2>No easy solution</h2>
<p>As the Syria conflict shows little sign of abating, the priority at present should be on the cessation of hostilities. But, as part of the reconciliation process that follows, transitional justice should play a key role. The favourite option may be the creation a “hybrid” court (politics permitting), paired with ongoing “universal jurisdiction” trials in states able to carry these out.</p>
<p>For the time being agencies such as the UN-created <a href="https://www.justsecurity.org/35795/syria-general-assembly-sidesteps-security-council/">“investigatory mechanism”</a> and the non-profit <a href="http://www.huffingtonpost.com/entry/assad-war-crimes-cija_us_571ed6e6e4b0f309baee63e0">Commission for International Justice and Accountability</a> must continue to collect and catalogue the evidence required for the time when it is so critically needed.</p><img src="https://counter.theconversation.com/content/75908/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Chadwick has previously received funding from the Arts and Humanities Research Council.</span></em></p>The push for accountability in Syria exposes the challenges of international criminal justice.Mark Chadwick, Lecturer in Law, Nottingham Trent UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/730852017-03-13T15:06:17Z2017-03-13T15:06:17ZColombia’s approach to criminals must be tough – for the sake of peace<p>After five decades of fighting, and an estimated 260,000 deaths, the conflict between Colombia and the rebel group FARC is at an end. A peace agreement that was narrowly rejected in a referendum has been revised, amended and <a href="https://www.theguardian.com/world/2016/dec/01/colombias-government-formally-ratifies-revised-farc-peace-deal">approved</a>. But now the process moves to the delicate post-conflict phase – implementing the agreement in pursuit of lasting peace.</p>
<p>One major part of the <a href="https://www.nytimes.com/2016/11/15/opinion/colombias-revised-peace-accord.html?_r=0">peace agreement</a> focuses on the difficult task of providing justice for victims. Allowing impunity for serious crimes committed during the conflict would jeopardise attempts to build a stable future. Post-conflict war crimes trials strengthen a society’s political identity as a state which abides by the rule of law. They also provide a measure of accountability for crimes suffered by the Colombian people.</p>
<p>But this kind of transitional justice process takes place in the context of a fragile political balance of power. In these circumstances, states may appear unwilling or unable to punish those most responsible. In Colombia, <a href="https://www.amnesty.org/en/latest/news/2016/12/colombia-peace-agreement-must-open-the-door-to-justice/">there are signs</a> that following the referendum, certain provisions of the transitional justice agreement have been made ambiguous or watered down. </p>
<p>To this end, Colombia has been given a <a href="http://www.semana.com/nacion/articulo/deseo-corte-penal-internacional-justicia-transicional-en-colombia/512820">rare warning</a> by the <a href="https://www.icc-cpi.int">International Criminal Court</a> (ICC). Fatou Bensouda, the court’s prosecutor, <a href="https://www.icc-cpi.int/Pages/item.aspx?name=160901-otp-stat-colombia">said</a> that only by adhering to “the promise of accountability” can Colombia “reap the full dividends of peace”.</p>
<p>One of Colombia’s obligations as a signed up member state of the ICC means punishing those “most responsible” for international crimes. Often these will likely be military commanders or superiors, rather than the direct perpetrators of violence. For the ICC, a person will be considered criminally responsible if they “order, solicit or induce” the commission of international crimes. </p>
<p>Military commanders will be criminally responsible for crimes committed by forces under their effective command and control. This includes occasions when they knew or should have known that their forces were “committing or about to commit” crimes. Non-military commanders will be criminally responsible when they knew, or consciously disregarded, information which clearly indicated the commission of crimes. </p>
<p>The parties involved in the Colombian peace process have agreed that international law is directly applicable to post-conflict disputes over human rights and criminality. But Bensouda correctly highlighted apparent confusion over how the law of command responsibility will be interpreted.</p>
<p>As Bensouda noted, the ICC definition allows prosecution of a military commander “as long as they have information that would have put them on notice”. This is the interpretation that the ICC adopted when it found the former vice-president of the Democratic Republic of the Congo, <a href="https://www.theguardian.com/law/2016/jun/21/jean-pierre-bemba-sentenced-to-18-years-in-prison-by-international-criminal-court">Jean Pierre Bemba, guilty</a> of international crimes committed by his subordinates. </p>
<p>But some aspects of the Colombian peace agreement cast doubt over whether this interpretation will be followed, especially in relation to commanders of FARC. The agreement states that criminal responsibility of FARC commanders will be engaged only if they have “actual knowledge based on information available to them, before, during and after” the relevant criminal activity. This is a much higher standard of guilt than that which the ICC usually requires. As a result, it may be much harder to prove – and potentially allow those most responsible for international crimes to escape punishment.</p>
<p>The amendments to the Colombian peace agreement cast doubts on whether the government and FARC are fully committed to prosecuting those most responsible for international crimes. </p>
<h2>Colombian justice</h2>
<p>If the newly formed <a href="https://www.ictj.org/news/colombia-peace-tribunal-start-over-32000-criminal-trials">Colombian Special Tribunal for Peace</a> does indeed adopt an interpretation of the law which is at odds with the ICC, it may be declared “unwilling or unable” to prosecute those most responsible for perpetrating international crimes. There would then be a strong case for the ICC itself to issue the relevant arrest warrants. </p>
<p>There have been calls for the ICC to broaden its geographical scope. The Colombian case may serve as an opportunity to reinvigorate the ICC which has come under sustained criticism as an <a href="https://theconversation.com/the-international-criminal-court-must-fix-its-anti-african-image-32983">Afro-centric court</a>. It would be only the second time the ICC had opened an investigation outside of Africa.</p>
<p>Much depends now on the people selected to sit in the relevant courts. A five-member committee will choose over 100 judges who will oversee the diverse chambers of the Special Tribunal for Peace. They should select brave judges who recognise that the prospects of long-lasting peace are harmed when only low-ranking soldiers are charged with crimes of the past. The whole point of transitional justice since the post-World War II Nuremberg trials is that those most responsible for the horrors of the past face justice. Individual criminal justice for international crimes rings hollow unless it is brave enough to pursue the people at the top.</p><img src="https://counter.theconversation.com/content/73085/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Seb Eskauriatza does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The world will be watching the country’s courts.Seb Eskauriatza, Teaching Fellow in Law, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/453952015-07-31T04:04:54Z2015-07-31T04:04:54ZChadian dictator’s tactics mimic script of former rulers facing criminal charges<figure><img src="https://images.theconversation.com/files/90293/original/image-20150730-25757-cdpqdf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former Chadian leader Hissène Habré reacts as he is escorted by Senegalese police into the Palais de Justice in Dakar, Senegal, on July 20. He is accused of crimes against humanity and mass murder. </span> <span class="attribution"><span class="source">EPA</span></span></figcaption></figure><p>There is more to former Chadian President Hissène Habré’s disruption of the opening of his trial in Dakar than meets the eye. He faces various charges including the politically motivated murders of at least 40,000 people.</p>
<p>His behaviour amounts to more than the ravings of a deluded former dictator. In fact, he and his lawyers are keeping to a script that has been tried and tested by revolutionaries and former rulers facing criminal charges.</p>
<p>On July and 20 and 21, the <a href="https://theconversation.com/trial-in-senegal-of-former-chadian-president-is-a-victory-for-civil-society-44920">long-awaited trial</a> of Habré, who ruled Chad with an iron fist from 1982 to 1990, got off to a tumultuous start. He was removed from the courtroom after loudly protesting the authority of the Extraordinary African Chambers in <a href="http://legal.au.int/en/sites/default/files/Agreement%20AU-Senegal%20establishing%20AEC-english_0.pdf">Senegal</a>, a hybrid tribunal jointly set up by the African Union and Senegal. It is supported financially by Chad, the European Union (EU), the US and several European states. </p>
<p>On the first day Habré was dragged out by guards after shouting <a href="http://www.bbc.co.uk/news/world-africa-33592142">‘down with imperialists’,</a> and denoucing the trial as a ‘farce by rotten Senegalese politicians’ and ‘African traitors’. He refused to return and the trial was adjourned to the next day. The next morning he was again brought to the courtroom but his lawyers did not show up. In response the court appointed new lawyers and adjourned the <a href="http://www.theguardian.com/world/2015/jul/21/former-chad-dictator-hissene-habre-trial-adjourned-until-september">trial</a> until September 7.</p>
<p>Habré and his lawyers clearly coordinated their actions in court and succeeded in delaying the proceedings. This move might only result in a negligible delay in a trial that follows <a href="http://www.justiceinfo.net/en/component/k2/1243.html?Itemid=102">25 years</a> of campaigning to hold Habré accountable. It nevertheless constitutes a tactical victory for him and highlights the defence strategy of attacking the legality of the proceedings. His lead counsel, a French lawyer, went so far as to complain about the ‘militarisation’ of the trial in <a href="http://www.justiceinfo.net/en/component/k2/1363.html?Itemid=102">an interview</a>.</p>
<p>In fact, Habré and his lawyers have been employing a defence strategy commonly used by accused in political trials throughout history. Former heads of state and revolutionaries facing criminal proceedings have often rejected the authority of courts trying them and accused them of abusing the law. </p>
<h2>Tactic used across the centuries</h2>
<p>The political defence has a long history. Refusal to recognise the legitimacy of the court used to be a common strategy of deposed monarchs on trial. In the treason trial against <a href="http://law2.umkc.edu/faculty/projects/ftrials/charlesIlinks.html">Charles I</a> of England in 1649, the King refused to recognise the authority of the tribunal due to his status as sovereign. The lawyer representing <a href="http://law2.umkc.edu/faculty/projects/ftrials/louis/louisxvilinks.html">King Louis XVI </a>in 1792 also rejected the authority of the National Convention to try the King on the grounds of his immunity under the French constitution.</p>
<p>Members of the German far-left militant <a href="http://global.britannica.com/topic/Red-Army-Faction">Red Army Faction</a> who stood trial in the 1970s refused to participate in the proceedings against them, demanding to be treated as prisoners of war. They claimed to have been waging a revolutionary war against the state.</p>
<p>More recently, the former Serbian leaders <a href="http://www.theguardian.com/news/2006/mar/13/guardianobituaries.warcrimes">Slobodan Milosevic</a> and <a href="http://www.theguardian.com/world/2014/oct/01/radovan-karadzic-war-crimes-trial-no-ethnic-cleansing-bosnia">Radovan Karadzic</a> employed similar arguments denouncing the Yugoslavia-tribunal as Western political instrument that had <a href="http://metro.co.uk/2009/11/30/bosnian-serb-leader-radovan-karadzic-denounces-the-hague-trial-613779/">no jurisdiction</a> over them.</p>
<p>Both revolutionaries and political leaders use the same arguments. They refuse to recognise the court and invoke a higher law. Instead of defending themselves they attack the court’s authority, often addressing audiences beyond the courtroom. This type of defence is also known as defence of rupture, popularised by the notorious French lawyer <a href="http://www.lawgazette.co.uk/practice/jacques-vergs-avocat-de-la-rupture/5037068.fullarticle">Jacques Vergès</a> who used the trials of his clients as platforms to attack the foundations of the political system.</p>
<h2>Firing the lawyers</h2>
<p>At another level, Habré and his lawyers might have pursued a more pragmatic and immediate objective. In June 2007, Charles Taylor, the former Liberian President, <a href="http://news.bbc.co.uk/1/hi/world/africa/6717485.stm">refused to attend</a> the opening of the trial against him in The Hague, complaining about the inadequacy of his defence team. In a dramatic scene his lawyer declared he could not represent Taylor any longer and walked out of the courtroom. Afraid of a derailment of the trial the Special Court for Sierra Leone more than doubled the funding for Taylor’s defence and adjourned the trial for seven months.</p>
<p>In Habré’s case the court was less generous. It immediately appointed three new Senegalese lawyers without increasing funding for the defence and granted not even two months adjournment. However, Reed Brody of <a href="https://www.hrw.org/">Human Rights Watch</a>, who has <a href="https://www.ictj.org/news/reed-brody-hiss%C3%A8ne-habr%C3%A9-trial-shows-power-victims%E2%80%99-and-civil-society%E2%80%99s-agency#.VZV8kHAo5bY.twitter">worked tirelessly</a> to bring Habré to justice, pointed out that the financial implications for the court’s budget of about £6 million are significant. He stated that</p>
<blockquote>
<p>a delay of 45 days in a trial that was only supposed to last 90 days is going to <a href="http://uk.reuters.com/article/2015/07/21/uk-senegal-justice-habre-idUKKCN0PV11A20150721">increase the budget</a> by almost 50%.</p>
</blockquote>
<p>Increasing the costs might be part of a defence strategy aimed at derailing the trial. Habré is likely to refuse to <a href="http://www.justiceinfo.net/en/component/k2/1363.html?Itemid=102">cooperate</a> with the new defence lawyers appointed by the court who were ordered to defend Habré even against <a href="http://www.voanews.com/content/court-suspends-habre-trial-/2872067.html">his will</a>.</p>
<p>This might be problematic as it could be seen to affect his defence negatively. In many jurisdictions this could even be a grounds for appeal. In any case, it could undermine the credibility of the Extraordinary African <a href="http://jicj.oxfordjournals.org/content/11/5/1139.abstract">Chambers</a> and raise questions about respect for the fair trial rights of the accused.</p>
<p>The court should be acutely aware of this and ensure that the trial meets internationally accepted legal standards to ensure that it will serve as a landmark in the fight against impunity in Africa.</p><img src="https://counter.theconversation.com/content/45395/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gerhard Anders received funding from Swiss National Science Foundation for a study on international criminal justice (2007-2010).</span></em></p>Former Chadian President Hissène Habré’s disruption of his trial, questioning its authority over him, is a tried and tested defence strategy used by revolutionaries and rulers for eons.Gerhard Anders, University lecturer in African Studies, The University of EdinburghLicensed as Creative Commons – attribution, no derivatives.