By Thierry Cruvellier, 

Twenty years ago, Chilean former dictator Augusto Pinochet was arrested in London for crimes committed under his rule. For international justice it was a historical day. For human rights lawyer Reed Brody it was transforming. Years later he would be instrumental in bringing to justice another dictator, Hissène Habré, from Chad. And he is now trying to help obtain the prosecution of former Gambian president Yahya Jammeh. In this edition of Bantaba, Brody talks to Thierry Cruvellier of Justiceinfo.Net on what is needed to successfully bring a former head of state to justice. Excerpts:

Cruivellier: How do you remember the day Pinochet was arrested?
Reed Brody: We knew Pinochet was in London. We knew there was a case against [him]. On October 16 I was conducting a retreat for Human Rights Watch and someone came and said: CNN announced that Pinochet has been arrested in London. In the follow-up from Rome [where the conference creating the International Criminal Court took place in July 1998], we all understood what this could represent. When Judge Garzon [the Spanish judge who issued the arrest warrant against Pinochet] came face to face with this huge historical responsibility, that really changed the course of history.

That evening the London police go to the home of a part-time stipendiary magistrate, like a justice of the peace, the lowest level of a Common Law judge – and that to me is one of the most beautiful parts of the story. This judge takes a form and he writes two sentences on the form, handwritten: Augusto Pinochet Ugarte is accused between the 11th of September 1973 and the 31st of December of 1983 (…) [of] the murder of Spanish citizens in Chile. That one page by a Common Law judge leads to the arrest of this dictator, a man who said ‘not a leaf moves in Chile without my knowing about it’. And here he is laid low by the simplest of a Common Law judge.

Pinochet died in 2006, flouting every attempt to prosecute him and escaping a trial. So what was the legacy of this event?
He died without being prosecuted but at the same time he was in every other way encircled. He left a Chile where there was no possibility that he could have been prosecuted, in which he had built a wall of immunity. When he came back he was submerged by legal cases brought against him; the truth about his crimes had come out; because of the freezing of his assets it was discovered that he had sucked away money in Riggs Bank in Washington. His arrest actually allowed the completion of the transition in Chile. It was his arrest in London, the humiliating detention for over a year, that gave Chilean society the impetus to move forward.

And so in 1999, you decided that the next Pinochet could be Hissène Habré…
What was interesting in particular about the Habré case was that he was living in Senegal, in the global South. The pushback to the Pinochet case, to the extent that there was one, was: why is it always the former colonizers who are prosecuting leaders from former colonies? We thought that if we could persuade Senegal to exercise universal jurisdiction we would really universalize the principle of universal jurisdiction. In addition, Senegal was the first country that ratified the ICC treaty. There was no immunity involved. The alleged crimes were egregious even though they were not well documented. And we were approached by the leading human rights activist in Chad at the time, Delphine Djiraibe, who said: can you help us do what Pinochet’s victims have done? This wasn’t us parachuting in.

So this is when you established your list of criteria: a request from a national NGO, the availability of evidence, the absence of legal barriers such as immunity, the independence of the judiciary in the forum country and some likelihood of success?
Exactly. We were also hoping for a case that represented a repression scenario rather than a civil war scenario, if possible.

More clear cut. Less ambiguous. And also we were hoping for a case, at this early stage, that would not be hyper political: not Fidel Castro, not Henry Kissinger. We wanted to nurture the precedent a little before putting it on the chopping block.

So an additional criterion is that the “target” has to be politically vulnerable, without the strong support of one of the major superpowers?
Yes. We wanted to broadened the consensus around the Pinochet precedent rather than immediately antagonise one side or the other.

And yet it took 17 years to have Habré tried…
That’s right. Hissène Habré was a relatively low-hanging fruit, and yet… Which illustrates the difficulty of doing this, of breaking with the international diplomatic status quo, of getting a bystander state like Senegal to muster the political will and the investment in a case that doesn’t really concern it. You need a strong link to the forum state. You need to generate the political will in the forum state.

Is there also a point where you need luck?
Luck is always part of it. For fifteen years I always felt that we were just around the corner. But yes, if president Wade [of Senegal] had stayed in power it certainly would have cast a huge doubt on everything we were doing. And Habré could have died. There are so many variables in a case like this: the attitude of the territorial state; the funding to keep this going for eighteen years – we raised five or six million dollars in the course of that time.

That’s another aspect of the Habré experience: you need a particularly strong NGO to sustain the effort.
Yes. You need a strong and transnational advocacy coalition, however you do that. In many cases, like Guatemala or Pinochet, you have a strong nexus, a strong bridge between people in the forum state and people in the territorial state. In the Habré case it was more difficult because you didn’t have people who bridged that. So Human Rights Watch and I played that bridging role. The other thing we really learned is to put the victims and their stories at the center. That’s the thing what will drive people to support a case like this. It’s not Reed Brody; it’s Souleymane Guengueng.

Part of what makes your success – some would say your brand – is your relentless and sophisticated use of the media. How does communication fit into your work as a human rights activist and how central has it become over the years?
I see communication as a tool to create the political conditions in Senegal for the government to feel comfortable with the prosecution of Hissène Habré. I learned that the only way to do that was to focus on the stories of the victims, to create identifiable, recognizable, sympathetic leaders among the victims whom people around Senegal, around Africa and around the world, would identify with their quest.
The New York Times was great, and Le Monde was great, but for me it was all about Radio France Internationale, and to a lesser extent Jeune Afrique. People around Africa, around Senegal, around Chad, followed the story year in and year out. They identified with Souleymane [Guengueng, a former inmate], and Clément [Abaifouta, another former prisoner], and Jacqueline [Moudeina]. People understood how long they had fought; it became a saga, this legal and political soap-opera. Habré’s team did not campaign internationally; we had almost the monopoly in the international press. Habré’s strength was national. That’s where they had placed all their efforts. And that was much harder for us. We spent an enormous amount of effort trying to get the Senegalese public on our side.

What are the advantages and limits of universal jurisdiction?
We all agree that universal jurisdiction, like the ICC, is subsidiary. The ideal situation would have been for Hissène Habré to be prosecuted in Chad. But the conditions never existed for that. Everybody in our coalition accepted that sending Habré back to Chad was a dangerous idea. Because he could have been mistreated or killed. Because he certainly wouldn’t have got a fair trial. Universal jurisdiction was the only thing available. It was always Plan A. The difference in the Habré case was the predominance of the victims. Hissène Habré’s trial went down almost exactly as we would have planned it fifteen years earlier. The narrative that was presented to the court by the prosecutor was the narrative that the victims had woven. Certainly the trial would have been different had Habré built a defense, but I am talking about how the charges were framed. One of the critics that can be made of all the early ICC cases is that they were framed very narrowly…

After the Habré trial you told me you wanted to take a break and do something else. A year later you were back in business, back to Human Rights Watch. What happened?
Well, as you know, Senegal and Gambia are very interconnected. And the whole time I was working on the Habré case people were saying: when you’re finished with Hissène Habré, why don’t you help the Gambians? It happened that just as we were finishing the Habré case Yahya Jammeh fled from power. And I was contacted by a Gambian woman whose father had been killed by Yahya Jammeh. So when we went for the final appellate verdict in the Habré case in Dakar in April 2017 we decided to go from Dakar to Banjul with Jacqueline, Souleymane, Clément, Abdourahmane [Gaye, a Senegalese survivor of Habré’s prisons], to meet with the new Gambian victims’ associations. The Chadians presented the story of what they had done and the Gambians had their eyes wide-opened. They saw what the difficulties were but they also saw that with determination and tenacity and luck and imagination, these obstacles can be overcome. So together we decided to give it a try. For me it was an opportunity to try to put in practice some of the things I have learned in the Habré case, hopefully without making all the same mistakes.

Why is Jammeh potentially a good case?
The two big challenges in the Jammeh case are that on the one hand he is in Equatorial Guinea, which is a very perfected dictatorship, less permeable to international pressure; and on the other hand Gambia today is not ready to prosecute him. It’s a country still undergoing a delicate transition where institutional, security, and geopolitical factors suggest that we wait a bit before he could be brought back to Gambia. So we have a double problem: it will be a challenge to get him out of the country where he is and where nobody thinks he should be tried; and it doesn’t seem it’s the moment to bring him back to Gambia. So we have to think about solutions. That’s why we’ve been focusing on a third possibility, which is to have him in the first instance be prosecuted in a country like Ghana. To me timing is always a dimension in these things: to do things when you’ve created the conditions to do them. In the case of migrants [In 2005, more than 50 migrants were allegedly murdered by Gambian government forces], we have citizens of five different countries who have been killed. We believe we can ultimately create enough consensus within the region that Obiang [the president of Equatorial Guinea] might be willing to give up Yahya Jammeh. But we’re not there yet. We know the president of Guinea will oppose the prosecution of Yahya Jammeh. We have a hill to climb. It all goes back to creating the political conditions. Yahya Jammeh was not a very popular president in the region; that’s why he is not in power today.

And that’s why he is a good “target” for you?
Look, I also believe now that you have to bring cases against George Bush for torture. You have to do what you have to do and what’s right to do. But the secret to win cases is to take winnable cases, cases where you see a path for victory – and yes, Yahya Jammeh is relatively low-hanging fruit, as was Hissène Habré. I think the more you take these cases, the more you win these cases, the more you show other people that they can bring them. Particularly in Africa people are very inspired by [the case of] Hissène Habré; so you have a kind of a multiplier effect.

When we started in Chad people thought we were crazy. There was a victim who said to Human Rights Watch: “Mais depuis quand la justice est-elle venue jusqu’au Tchad?” [Since when justice has ever come to Chad?] Souleymane Guengueng talks about how people used to think he was a fool. Now when I go to The Gambia people say: “He is the guy who helped the Chadians bringing Hissène Habré to justice; now he is here to help us with Yahya Jammeh.” It’s like a normal thing now. You do this. It’s no longer a crazy idea.

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