Introduction
Crime against humanity was established as an international crime during the Nuremberg trials in 1945. Since then, prosecution of crimes against humanity has had mixed results, with both successes and failures. Crimes against humanity featured prominently in international tribunals in Yugoslavia and Rwanda. Since the formal establishment of the ICC in 2002, crimes against humanity have generally been prosecuted by the ICC, along with genocide, crimes of aggression, and war crimes. As such, a look into case studies of the prosecution of crimes against humanity must be prefaced with the admission that the ICC prosecution has been criticized for its focus thus far on prosecuting crimes against humanity within African countries, despite such crimes being prevalent outside of Africa’s borders as well. For this reason, most of the case studies in this article deal with African states.
For more background information on crimes against humanity, please click here for part 1.
Successful Prosecutions
South Africa
In the early 1990s, the South African government recognized its apartheid system as a form of crime against humanity, in which individuals are persecuted based on race. South Africa’s process of “prosecution” differed from that of an international tribunal in that its focus was on uncovering information and gathering evidence from both victims and perpetrators, rather than on prosecuting perpetrators. This was partially because it was a national initiative and in order for leaders of the apartheid regime to surrender power, they required amnesty in exchange. The decision to pursue amnesty proved to be controversial in the years to come.
A central aspect of the transitional justice process was the Truth and Reconciliation Commission (TRC), which was established through a year-long decision process that involved the government, civil society and the international community in dialogue on the benefits of a truth commission. The TRC was established in 1995, and it investigated human rights abuses, allowed victims to share their stories, granted amnesties, and developed a reparations policy draft. Through this process, it developed a final report that contained the details of its findings and provided recommendations to prevent such human rights abuses from being repeated again.
In the process of achieving these goals, three committees were established: the Human Rights Violation Committee, the Reparations and Rehabilitation Committee, and the Amnesty Committee. Commissioners were chosen through a nation-wide nomination process and publicly interviewed by a wide range of representatives from political and civic groups. The commission received over 22,000 statements from victims and granted 1,500 amnesties for atrocities committed under apartheid. The fact that the TRC faced serious limitations cannot be ignored, however: many top military and political leaders refused to cooperate with the commission, limiting its scope of influence. Nonetheless, it has been seen as successful in creating a legacy for a new model of pursuing peace and justice in light of past historical atrocities.
Unsuccessful Prosecutions
Kenya: Uhuru Kenyatta
Kenyan President Uhuru Kenyatta was accused of five charges of crimes against humanity: murder, deportation or forcible transfer, rape, persecution, and other inhumane acts, within the context of widespread violence in the aftermath of the 2007 elections. Along with two others, he was suspected of being responsible for planning, sponsoring, and coordinating violence against supporters of the opposition party, leading to the deaths of over 1,200 people and the displacement of 600,000.
In 2014, these charges were confirmed at a pre-trial hearing at the ICC. However, before the case could go to trial, the prosecution withdrew its charges when it was deemed that they lacked evidence to guarantee a conviction after key witnesses were killed, disappeared or withdrew, or recanted their prior statements. Furthermore, the case was complicated by a lack of support on the part of the Kenyan government in terms of providing key evidence. Additionally, the adoption of the Kenyan government’s proposal to allow those performing public duties at the highest level to request to be excused from appearing at their own trial led to the undermining of the ICC’s independence. In the end, despite the collection of large amounts of evidence and the participation of 725 victims, the charges against Kenyatta were dropped in 2015 and the case was closed.
Democratic Republic of Congo: Jean-Pierre Bemba
In 2010, Bemba was accused of two counts of crimes against humanity, amidst other crimes, for failing to stop his militia from committing the mass rape, murder and pillage of civilians in Central African Republic in 2002-2003. He was declared guilty by the ICC in 2016 and sentenced to 18 years in prison. This verdict was significant because it was the first time that the ICC had convicted a defendant guilty of “command responsibility for the actions of their troops.” Additionally, the ICC convicted Bemba and his legal team of tampering with witnesses during the trial. Despite all this, in 2018, his 18-year sentence was overturned by the appeals court and he only received a one-year suspended sentence and a fine for tampering with evidence.
The court concluded that it had been mistaken to believe that Bemba had sufficient control of his 1,500 troops that he had dispatched to a foreign country and that there was no evidence of his ordering his troops to commit mass rape and murder and, as such, could not be held accountable. This outcome was a failure in light of the vast monetary and time resources that had been poured into preparation, as well as the participation of 5,000 victims over the course of 15 years.
Practical Implications for Human Rights Implementation Groups
HR Documentation Monitoring groups need to be thinking from the outset about how the information they gather might be used in criminal justice proceedings. This can involve ensuring:
- Their researchers have training in international human rights and humanitarian law, so they know what they are looking for, what questions need to be asked, and how to record that information;
- They have a legally sound informed consent procedure in place;
- Their data is safely stored and protected from outside tampering or theft;
- Their have received legal advice on their questionnaire, interview method and their selection of research participants;
- Where possible, they are sourcing witnesses who have not been interviewed by other organisations in the past;
- They don’t make uncorroborated or misleading claims in advocacy-oriented reporting or awareness-raising activities that might impact their credibility in the future;
- When the time comes to engage with a criminal justice process, that they have a well-researched policy in place for engaging with that process in a way that protects the witnesses, and the integrity of their data.
Last Updated: March 6, 2019
Author: Sarah Kim