Trying Hissène Habré: international justice in Senegal’s courts

Over the past two weeks, the investigating chamber (chambre d’instruction) of the Extraordinary African Chambers in the Senegalese court system, undertook a mission in Chad as part of its case against former Chadian president, Hissène Habré. Habré has been indicted by the court for crimes against humanity, war crimes and torture committed in Chad from June 7th, 1982 to December 1st, 1990.

The Chambers came about after years of negotiations between and decisions by Senegal, the African Union, the Economic Community of West African States (ECOWAS) and other players – including the UN Committee Against Torture (CAT), the International Court of Justice (ICJ) and Belgium. The Chambers were eventually created after a July 2012 ruling by the ICJ (Justice in Conflict blogged about the case in March 2012 here; iLawyer has a great analysis of the decision here) that Senegal – where Habré fled to after being overthrown in 1990 – was obligated to prosecute Habré if it did not extradite him to Belgium, where courts had been  trying to prosecute him for years.

The back and forth between Senegal, Belgium and other stakeholders (FIDH provides a great chronology here) are a great example of the many questions being asked about international justice mechanisms and which are most appropriate and successful. In late 2011, Patrick Wegner summarized the debate in a post on Justice in Conflict as such:

The Habré case is a perfect example for the dilemmas involved in pursuing justice based on universal jurisdiction. If Habré would be tried in Belgium, the trial would be far removed from the realities on the ground in Africa. A meaningful participation of his victims in Chad is difficult to implement in such a case. Additionally, the fact that a Western country is prosecuting a former African head of state feeds into allegations brought forward by the AU that the West is using international criminal law to target African states. On the other hand there seems to be no real African drive for prosecuting Habré in Africa. Should the world and the victims wait until Africa has figured out how to deal with the case of Habré? Or is it preferable to move on with a trial in Belgium even though it would be far removed from the realities on the ground and would enforce allegations of neo-colonialism?

The creation of the Chambers though, is a notable development in international justice. As Dr. Misa Zgonec-Rozej aptly summarizes it:

Habré’s case, provided that he will stand trial, will mark the first time that the domestic courts of one country have tried the Head of State of another country for alleged international crimes. As a trial of an African leader by an African court in Africa, Habré’s case is a test case which will help assess the capacities of African states to meet their commitments in the field of international criminal justice. The case also shows the importance of the obligation to prosecute or extradite (aut dedere aut judicare) and the principle of universal jurisdiction in the fight against impunity.

Unfortunately, for those of you who don’t read French, there’s not a lot of primary sources on the Chambers available in English. HRW has a version of the Statute of the Chambers here (in French), and the official website of the Chambers exists only in French. For additional background, FIDH has a useful Q&A page on the case in English.

Background

As with many people indicted by international or internationalized tribunals, there is little doubt as to the human rights abuses that took place under Habré’s rule. Human Rights Watch’s 2005 report, “Chad: The Victims of Hissène Habré Still Awaiting Justice” describes the situation under Habré as the following:

On his arrival to power, Hissène Habré swiftly established a dictatorship. His one-party regime was marked by widespread atrocities and campaigns against his own people. During his eight years as head of state, Hissène Habré attempted to destroy all forms of opposition to his regime. Using collective arrests and mass murders, Habré persecuted different ethnic groups whose leaders he perceived as posing a threat to his regime. Targeted groups included the Sara and other southern ethnicities in 1984, Arabs, the Hadjaraï in 1987, and the Zaghawa in 1989.

The exact number of Habré’s victims is unknown. The 1992 Truth Commission of the Chadian Justice Minister, which was established by Habré’s successor, accused Habré’s regime of 40,000 political assassinations as well as systematic torture.[4] Most predations were carried out by Habré’s dreaded political police, the Documentation and Security Directorate (DDS), whose leaders all came from Habré’s Gorane ethnic group and who reported directly to Habré.

Today, Chadians still attest to the state of general suspicion that pervaded the country under Habré’s rule. It was not uncommon for a citizen to fear that his or her words, even to a spouse, child, or friend, might someday be repeated and used against him. In certain cases, agents went to children for information, since they could be oblivious to the impact of their words. One DDS intelligence record from April 1988, discovered by Human Rights Watch (see infra), reports, for example, how a 12-year-old child furnished political information he had overheard his parents discussing during the evening meal.

Since its early days as an independent country, Chad has been faced with recurrent insecurity and conflict, as well as a succession of authoritarian regimes. Chad being a former French colony, the leadership in N’djamena has always kept close and personal relationships with Paris, which has kept a keen interest in Chad’s internal affairs and has often intervened to preserve the status quo.

Despite the lack of economic opportunities for France in Chad, in the post-colonial era, Chad became the recipient of extensive French aid. Of particular interest here is military assistance: between 1960 and 1973, about 30% of all French military aid to Africa was destined to Chad (Mays 2002, 27). In the aftermath of independence, France signed a military technical assistance (assistance militaire technique, AMT) agreement with Chad, which permitted the sale of military materials and the provision of technical assistance and training to Chad’s security forces. This permitted France to maintain a degree of control over Chad’s security policy. Moreover, despite the lack of a formal defense agreement, this essentially permitted France to intervene in Chad in a military capacity as they saw fit: throughout the span of the Cold War, France conducted nine military operations in Chad. Although some of these operations were very short-term missions and had limited goals, others lasted several months and some even years, helping both to diffuse internal conflicts and to dissuade further Libyan southward incursions.

In order to thwart Libya’s advances in Chad, both France and the US intervened to ensure that then-Minister of Defense Hissène Habré’s breakaway Armed Forces of the North (FAN) received the necessary assistance that enabled them to overtake N’Djamena in a short nine-month period (Human Rights Watch 2005). From 1982 on, both countries continued to support Habré’s increasingly despotic regime, primarily because of his virulent anti-Libyan position ensured the continuity of Western influence in the region.

France intervened in a military capacity twice while Habré was in power, both times to help Habré remain in power despite strong incursion by Libyan-backed armed opposition movements: Operation Manta from August 1983 to November 1984 and Operation Silure from October 1984 to December 1984. The thawing of East-West relations in the late 1980s and early 1990s led to a decrease in support for despotic leaders such as Habré. Without the threat of Soviet encroachment in sub-Saharan Africa, French and American steadfast support for ruthless leaders increasingly became much harder to justify, both to the international community and to domestic constituencies.

Thus when current Chadian president Idriss Déby overthrew Habré in December 1990, France chose not to intervene despite already having an active military operation on the ground (Operation Epervier, 1986-present) and despite evidence that Déby’s rebel Patriotic Salvation Movement was receiving assistance from Libya and Sudan.

Fast forwarding several years, France has expressed support for international efforts to bring Habre to justice, including being the first country, along with Switzerland, to pledge, in July 2007, financial assistance to Senegal. On August 24th, 2012, the French Ministry of Foreign Affairs, during a press conference, reiterated its support for the “fight against impunity,” welcomed the signing of the agreement between the Senegalese authorities and the AU, and stated that they would “study favorably the idea of contributing to the creation of a special tribunal” and that the “amount of this contribution has not yet been definitively established” (translation mine). France is also part of the “piloting committee” (to translate the Chamber’s terms), which appears to be responsible for financing (or finding funding) for the Chambers.

Potential issues, challenges, obstacles …

For all the positive signs about the progress of international justice that this case shows, there are nevertheless several – and I would say significant – issues posed – ones that I think will certainly come to light sooner or later.

First, it will be interesting to see to what extent Senegalese political will and the independence (or lack thereof) of the Senegalese judiciary, come into play throughout the investigation and trial. The lack of political will – especially on the part of former Senegalese President Abdoulaye Wade – has been a recurring obstacle over the past couple years. However, this has changed with the election of Macky Sall in April 2012, who has shown much greater support for the prosecution. Moreover, the appointment of Aminata Touré as Senegalese Prime Minister just this past Sunday is sure to play a positive role, especially given her role in bringing Habré to justice.

Nevertheless, despite having made great strides in the past decades, the Senegalese judiciary – and I’m not an expert in the matter – isn’t perfect either. Just looking through the FIDH chronology linked to above, it’s fairly easy to identify a pattern of undue political influence on the courts’ decision with regards to the case. In Cambodia, the lack of independence of the judiciary and the very real attempts by the Cambodian government to impede further investigations into the potential culpability of current office holders in Khmer Rouge-era crimes have posed significant challenges to the Court (the Extraordinary Chambers in the Courts of Cambodia, ECCC) and risk undermining the legacy of the Court. While I’m not trying to equate the Senegalese judiciary with that of Cambodia, it is important to consider where there may be some lessons to be learned.

Perhaps more concerning, however, is the fact that the the Chambers appear to be staffed with people with little to no experience with international criminal law. Not all judges are listed in the Chambers’ website but the various court presidents – while very experienced in the domestic court system – do not appear to have had any experience in other tribunals and courts dealing with international law. While this is not necessarily a bad thing – especially for those of us who are in favor of universal jurisdiction and of the prosecution of international crimes in domestic courts – I do hope that one or several NGOs implement a court monitoring project, as is being done with, for example, the Thomas Lubanga trial at the ICC.

Moreover, it will be interesting to see how victims/civil parties participation is handled by the Chambers, given the physical distance between the Chambers and where the majority of the civil parties are located. From what I can tell from the website, there doesn’t seem to a victims’ support section (or a defense support section for that matter) or a public affairs department charged with organizing outreach activities to include civil parties in the process. Hopefully that is forthcoming and resources – including financial ones – will allocated to such efforts.

And last but not least, given France’s extensive involvement in and support for Habré’s rule, it will be interesting to see how the Chambers will address potential foreign (i.e. French and US) criminal responsibility in this case – at the very least how it’s brought up during the prosecution’s and the defense’s arguments, during witness testimony and through documentary evidence. This won’t be easy, and again may be influenced by political factors, but I would argue that it would be necessary and beneficial to consider.

In conclusion …

Habré’s trial is undoubtedly having and will have important consequences for international justice – especially with regards to how perpetrators of mass atrocities are prosecuted on the African continent. Moreover, the composition of the Chambers reflects – in my opinion – a significant shift in how international prosecutions may be handled in the future. Whereas other international/internationalized tribunals have been composed of staff from many nationalities, the Chambers are composed mostly of Senegalese judges, which may indicate a commitment to increasingly prosecute perpetrators of mass atrocities within domestic court systems.

In February 2007, Senegal adopted a law (Loi no. 2007-02, amending the Senegalese Penal Code) allowing for the prosecution – in Senegalese courts – of cases of genocide, crimes against humanity, war crimes and torture, regardless of where those crimes were committed (i.e. even when committed outside of Senegal). If the Chambers are successful in their prosecution of Habré (and by successful, I mean not necessarily a conviction but a strict adherence to fair trial rights, a correct application of the law and sound legal arguments from all sides, adequate reparations to victims, etc), this could have significant implications for Senegal’s future role in the area of international justice.

Sources

Mays, Terry M. 2002. Africa’s First Peacekeeping Operation: The OAU in Chad, 1981-1982. Westport, CT: Praeger Publishers.

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