Questions and Answers
In mid-2015, the former dictator of Chad, Hissène Habré, will stand trial on charges of crimes against humanity, torture and war crimes before the Extraordinary African Chambers in the Senegal court system. The chambers were inaugurated by Senegal and the African Union in February 2013 to prosecute the “person or persons” most responsible for international crimes committed in Chad between 1982 and 1990, the period when Habré ruled Chad.
Habré’s trial will be the first in the world in which the courts of one country prosecute the former ruler of another for alleged human rights crimes. It will also be the first universal jurisdiction case to proceed to trial in Africa. Universal jurisdiction is a concept under international law that allows national courts to prosecute the most serious crimes even when committed abroad, by a foreigner and against foreign victims. The French newspaper Le Monde has called the case “a turning point for justice in Africa.”
The following questions and answers provide more information on the case and what lies ahead.
- Who is Hissène Habré?
- What are the charges against Habré?
- What crimes fall within the jurisdiction of the court?
- Why has it taken so long to bring Habré to justice?
- What has been the role of the Chadian government in bringing about Habré’s prosecution?
- How did the chambers carry out their investigation?
- What did the court-appointed experts find?
- Why is Hissène Habré the only person standing trial?
- What about Déby, Chad’s current president?
- What are the accused’s rights?
- How will the chambers ensure that these rights are respected?
- Habré says he will not cooperate with the chambers. What effect will that have?
- What is the maximum punishment Habré could receive?
- How are the Extraordinary Chambers structured and administered?
- How are the prosecutors and judges assigned?
- How will the trial be conducted?
- How long will the trial last?
- Will victims have a role in the trial, and will they receive reparations?
- How will people in Chad know about the trial?
- What about the trial in Chad of Habré-era security agents?
- How are the chambers funded?
- What were the key steps in the campaign to bring Habré to justice?
- What is the significance of Habré’s prosecution under universal jurisdiction?
- How does this trial fit into critiques of the role of international justice in Africa and claims that universal jurisdiction cases target Africans?
- Why was it necessary to create special chambers with an international element?
- Why isn’t Habré prosecuted in Chad?
- Why can’t the International Criminal Court prosecute Habre?
Habré was president of the former French colony of Chad from 1982 until he was deposed in 1990 by Idriss Déby Itno, the current president. Habré has been living in exile in Senegal ever since.
A 714-page study by Human Rights Watch found that Habré’s government was responsible for widespread political killings, systematic torture, and thousands of arbitrary arrests. The government periodically targeted civil populations, including in the south (1983-1985), and various ethnic groups such as Chadian Arabs, the Hadjerai (1987) and the Zaghawa (1989-90), killing and arresting group members en masse when it was perceived that their leaders posed a threat to Habré’s rule.
A 1992 Chadian Truth Commission accused Habré's government of 40,000 political murders and systematic torture. Most abuses were carried out by his dreaded political police, the Documentation and Security Directorate (DDS), whose directors reported directly to Habré. The directors all belonged to Habré’s inner circle, and some belonged to the same ethnic group, Gorane anakaza, or even the same family as Habré.
The United States and France supported Habré, seeing him as a bulwark against Libya's Muammar Gaddafi, who had expansionist designs on northern Chad. Under President Ronald Reagan, the United States gave covert CIA paramilitary support to help Habré take power in 1982 and then provided his government with massive military aid. The United States also used a clandestine base in Chad to organize captured Libyan soldiers into an anti-Gaddafi force in the late 1980s. Despite Habré’s abduction of the French anthropologist Françoise Claustre in 1974 and the murder of Captain Pierre Galopin, who went to Chad to negotiate her release in 1975, France also supported Habré after he arrived in power, providing him with arms, logistical support and information, and carrying out military operations “Manta” (1983) and “Hawk” (1986) to help Chad push back Libyan forces.
Habré was indicted for crimes against humanity, torture and war crimes by the chambers’ four investigating judges on July 2, 2013. On February 13, 2015, after a 19-month investigation, the judges found sufficient evidence for Habré to face charges of crimes against humanity and torture as a member of a “joint criminal enterprise” and of war crimes on the basis of his superior responsibility. Specifically, they charged Habré with:
- The massive practice of murder, summary executions, kidnapping followed by enforced disappearance and torture, amounting to crimes against humanity, against the Hadjerai and Zaghawa ethnic groups, the people of southern Chad and political opponents;
- Torture; and
- The war crimes of murder, torture, unlawful transfer and unlawful confinement, and violence to life and physical well-being.
The chamber’s statute gives it competence over the crimes of genocide, crimes against humanity, war crimes and torture as defined in the statute. The definitions generally track those used in the statutes of the International Criminal Court and other international tribunals. The crimes must have taken place in Chad between June 7, 1982, and December 1, 1990, which corresponds to the dates of Habré’s rule.
The advent of the trial, almost 25 years after Habré’s fall, is entirely due to the perseverance of Habré’s victims and their allies in nongovernmental groups. When Habré was arrested in July 2013, the Toronto Globe and Mail lauded “one of the world’s most patient and tenacious campaigns for justice.” The New York Times wrote that the “case has proved unusual for the tenacity of his victims, and of Human Rights Watch, in seeking to bring him to justice.” Habré was first indicted by a Senegalese judge in 2000, but for the next 12 years the Senegalese government of former President Abdoulaye Wade subjected the victims to what the Nobel Peace Prize winner Archbishop Desmond Tutu and 117 groups from 25 African countries described as an “interminable political and legal soap opera.” It was only in 2012, when Macky Sall became president of Senegal and the International Court of Justice ordered Senegal to prosecute or extradite Habré that progress was made toward the trial.
Habré’s lawyers claim that Deby’s government is behind the effort to prosecute him. However, since the victims’ first complaint in 2000, it has been the victims and their supporters who have pressed the case forward, overcoming one obstacle after another. The Chadian government has long expressed its support for Habré’s prosecution, and in 2002 it waived Habré's immunity from prosecution abroad, but it did not otherwise contribute to advancing the case in a meaningful way until it agreed to help finance the court and cooperated with the investigating judges during their four missions to Chad. More recently, the Chadian government has seemingly cooled toward the chambers, particularly in its refusal to transfer additional suspects.
The investigating judges began with access to a considerable amount of evidence collected in the years since Habré’s fall, including prior Belgian and Chadian investigations into Habré’s alleged crimes.
A 1992 National Truth Commission in Chad accused Habré’s government of systemic torture and an estimated 40,000 political assassinations, and documented the methods used to carry out torture. One of the first witnesses the chambers’ investigating judges interviewed was the former Truth Commission president, a leading Chadian lawyer. In addition, the chambers’ judges obtained the extensive file Belgian investigators prepared on Habré during four years, which contains interviews with witnesses and “insiders” who worked alongside Habré, as well as DDS documents.
Most important, the chambers’ four investigating judges conducted their own thorough 19-month investigation, and for the most part relied on evidence they developed themselves.
On May 3, 2013, Senegal and Chad signed a “Judicial cooperation agreement” to facilitate the chambers’ investigation in Chad.
The investigative judges conducted four missions (“commissions rogatoires”) to Chad - in August - September 2013, December 2013, March 2014, and May - June 2014. They were accompanied by the chief prosecutor and his deputies as well as police officers. During their visits, the judges gathered statements from 2,500 direct and indirect victims and key witnesses, including former officials of the Habré government. Although the Judicial cooperation agreement allowed the Senegalese investigative judges to interview people with Chadian authorities not present, the judges chose not to.
The judges took copies of DDS files that Human Rights Watch had uncovered in 2001. Among the tens of thousands of documents were daily lists of prisoners and deaths in detention, interrogation reports, surveillance reports, and death certificates. The files detail how Habré placed the DDS under his direct control and kept tight control over DDS operations. Analysis of the data for Human Rights Watch revealed the names of 1,208 people who were killed or died in detention and 12,321 victims of human rights violations. In these files alone, Habré received 1,265 direct communications from the DDS about the status of 898 detainees.
The judges also appointed experts on data analysis, forensic anthropology, handwriting, the historical context of Habré’s government and the functioning and command structure of Habré’s military.
Patrick Ball of the Human Rights Data Analysis Group conducted a study of mortality in Habré’s prisons. His conclusion was that, for the period he studied, prison mortality was “hundreds of times higher than normal mortality for adult men in Chad during the same period” and “substantially higher than some of the twentieth century’s worst POW contexts” such as German prisoners of war in Soviet custody and US prisoners of war in Japanese custody.
Experts from the Argentine Forensic Anthropology Team carried out exhumations at a number of potential mass grave sites. In Deli, in southern Chad, for instance, the site of an alleged killing of unarmed rebels in September 1984, the experts located 21 bodies, almost all military-age men, most of whom were killed by gunshot. In Mongo, in the center of Chad, the experts uncovered 14 bodies from another 1984 massacre.
A handwriting expert appointed by the judges looked at documents allegedly written or signed by Habré. He confirmed, for instance, that it was Habré who responded to a request by the International Committee of the Red Cross for the hospitalization of certain prisoners of war by writing “From now on, no prisoner of war can leave the Detention Center except in case of death.”
The Chadian victims’ goal in seeking justice in Senegal since 2000 has been a trial of Habré, the head of state who directly controlled the security apparatus and had primary responsibility for his government’s actions. The victims also filed cases in 2000 in Chad against other officials of Habré’s government who were still in Chad.
Under article 3 of the chambers’ statute, the Extraordinary African Chambers can prosecute “the person or persons most responsible” for international crimes committed in Chad during Habré’s rule. In July 2013, the chief prosecutor requested the indictment of five additional officials from Habré’s administration suspected of being responsible for international crimes. These are:
- Saleh Younous and Guihini Korei, two former directors of the DDS, Habré’s political police. Korei is Habré’s nephew;
- Abakar Torbo, former director of the DDS prison service;
- Mahamat Djibrine, also known as “El Djonto,” one of the “most feared torturers in Chad,” according to the National Truth Commission; and
- Zakaria Berdei, former special security adviser to the presidency and one of those suspected of responsibility in the repression in the south in 1984.
None of them have been brought before the court, however. Younous and Djibrine were convicted in Chad on charges stemming from the complaints filed by victims in the Chadian courts, and Chad has refused to extradite them to Senegal. Berdei is also believed to be in Chad, though he is not in custody. The location of Torbo and Korei is unknown, and they have not been arrested under the chambers’ indictments. As a result, only Habré was committed to trial.
President Déby was commander in chief of Habré’s forces during the period known as “Black September,” in 1984, when a murderous wave of repression was unleashed to bring southern Chad back into the fold of the central government. In 1985, Déby was removed from this post, and after a period of study in a military school in France, was appointed a defense adviser until he left Chad in 1989.
It is important to note that Article 10 of the chambers’ statute provides that “[t]he official position of an accused, whether as Head of State or Government, or as a responsible government official, shall not relieve him or her of criminal responsibility….” The chambers were thus free to pursue charges against President Déby even though he is currently a head of state, but they did not.
Habré is entitled to the right to a fair trial in accordance with international law. He is represented by legal counsel of his own choosing. The International Covenant on Civil and Political Rights and the African Charter on Human and Peoples' Rights outline the minimum guarantees that must be afforded to defendants in criminal proceedings.
In accordance with those standards, the chambers’ Statute provides a number of rights to defendants, including:
- the right to be present during trial;
- the presumption of innocence;
- the right to a public hearing;
- the right to have adequate time and facilities for the preparation of the defense;
- the right to counsel and legal assistance;
- the right to be tried without undue delay; and
- the right to examine and call witnesses.
In July 2014, the Chambers’ Statute was amended to establish an independent Defense Office, whose role is to protect the rights of the defense, and provide support and assistance to defense counsel and others entitled to such legal assistance. The assistance may include legal research or advice, collection of evidence, and also legal representation as may be required. The Defense Office will be headed by a principal defender, who has the same status as the prosecutor with regard to the rights of the accused to representation. The International Criminal Court and the Special Tribunal for Lebanon have a Defense Office, as did the Special Court for Sierra Leone, fulfilling a similar role. As of this writing, the Office had not been created.
Habré is represented by a legal team he chose, a right explicitly guaranteed in the chambers’ statute. The Senegalese Code of Criminal Procedure governs the conduct of parties to the trial so if Habré’s legal team acts in a manner contrary to those rules, the members may face disciplinary action. In addition, the judges of the chambers ultimately preside over the fairness of the trial and have the authority to request the principal defender to represent the interests of the defense as the “exigencies of the case” may determine, and to represent Habré on issues such as fairness of the proceedings, and exercise of his rights.
Many defendants facing trial before tribunals for alleged crimes under international criminal law – such as Slobodan Milošević, Radovan Karadžić and Charles Taylor– asserted that they did not recognize the authority of the tribunal or that they would not cooperate, or have sought to use the trial as a platform to present their version of events. They have sought to use the right to self-representation as a means to protest the court or derail the hearings. However this right is not absolute and in such contexts, courts may and have appointed counsel to represent the interests of the defense during trial. For example, the judges of the International Criminal Tribunal for the former Yugoslavia imposed counsel on Milosevic, taking into consideration the impact of his ill-health on his ability to guarantee effective self-representation.
The burden always remains on the prosecution to prove Habré’s guilt beyond a reasonable doubt. However, if an accused decides to not cooperate in his own trial, he inevitably undermines the exercise of his right to an effective defense, which includes the ability to challenge the evidence against him and his opportunity to call into question the prosecution’s case.
If Habré is found guilty, the chambers could impose a sentence of up to life in prison, depending on the circumstances and the gravity of the crime(s). They could also order him to pay a fine or forfeit any of the proceeds, property or assets derived directly or indirectly from the crime(s).
The Extraordinary African Chambers have been created inside the existing Senegalese court structure in Dakar, namely the Dakar District Court and the Appeals Court in Dakar. The chambers have four levels: an Investigative Chamber with four Senegalese investigative judges, an Indicting Chamber of three Senegalese judges, a Trial Chamber, and an Appeals Chamber. The Trial Chamber and the Appeals Chamber each have two Senegalese judges and a president from another African Union member state.
The chief prosecutor is Mbacké Fall. The chambers have an administrator – Aly Ciré Ba – to ensure the smooth functioning of their activities and to handle all non-judicial aspects of the work. The administrator’s responsibilities include financial management of personnel, outreach and media information, witness protection and assistance, and judicial cooperation between Senegal and other countries, such as Chad.
The prosecutors and investigative judges were nominated by Senegal’s justice minister and appointed by the chairperson of the AU Commission. The President of the Trial Chamber is Gberdao Gustave Kam of Burkina Faso.
The trial will be conducted in accordance with the Senegalese Code of Criminal Procedure, which essentially follows the French civil law “inquisitorial” model rather than the “adversarial” model used in Anglo-Saxon common-law systems. The presiding judge assumes a direct role, examining the accused and witnesses. The prosecutor and the lawyers for the defendants and the victims may also have questions put to the accused and witnesses. There are no strict rules of evidence as in common-law systems. The lawyers’ final summations, or plaidoiries, assume a particular importance in this model.
It is difficult to predict. The court’s calendar provides for a trial of up to seven months, including the writing of the decision, and its budget provides for transportation from Chad of 100 witnesses.
Victims are permitted to participate in proceedings as civil parties, represented by legal counsel. More than 2,440 victims have registered as civil parties.
Senegalese procedural law governs participation by the victims. The victims’ lawyers participated in pre-trial proceedings, as when victims’ accounts were contrasted with Habré’s. At trial, the victims’ lawyers will be able to have questions put to witnesses or the accused, and to seek reparations. It is unlikely, however, that more than a small number of victims will testify during the trial.
Under its statute in the event of a conviction, the chambers may order reparations against the accused to be paid into a victims’ fund, which can also receive voluntary contributions by foreign governments, international institutions, and non-governmental organizations. Reparations from the victims’ fund will be open to all victims, individually or collectively, whether or not they participated in Habré’s trial. The chambers have not yet created such a fund, however.
Chad’s truth commission accused Habré of emptying out the national treasury in the days before his flight to Senegal, and it is widely believed that he has millions of dollars. The chambers have frozen two small bank accounts belonging to him and a property in an upscale Dakar neighborhood.
In July 2013, after the chambers arrested Habré, President Déby said that the Chadian government would compensate survivors and relatives of those who died. Chad’s responsibility under international law to provide reparations to victims of gross human rights violations is separate and distinct from reparations against the accused.
The chambers’ Statute provides for filming and recording trial proceedings for broadcasting purposes, as with other internationalized trials, and for public access to the trial by journalists and non-governmental organizations. The Judicial Cooperation Agreement commits Chad to broadcast the recordings of proceedings on public radio and television and to allow private media entities to do the same. The justice ministers of both countries agreed in November 2013 that the trial would be broadcast.
However, in April 2014, the Senegalese National Counsel of Audiovisual Regulation said that under Senegalese law, the trial should not be televised.
Human Rights Watch believes that filming the entire trial is critical for the historical record. In addition, subject to appropriate measures that may be necessary to ensure security of witnesses, retransmission of the trial, to Chad in particular, as well as the preparation of abstracts of the trial and video summaries, serves the key purposes of ensuring that the trial is meaningful to, and understood by, the people of Chad and helps to build the rule of law in both Chad and Senegal. The landmark nature of this trial makes it all the more important to make it available for viewing by the widest possible audience. This means that the footage and sound should be freely available, to media, filmmakers and the public.
The chambers, through a consortium of non-governmental organizations from Senegal, Belgium and Chad who received a contract from the court, have undertaken outreach programs to both Chad and Senegal. The consortium has trained journalists in both countries, organized public debates, created a website and produced materials to explain the trial.
Chad and Senegal have also agreed to cooperate to facilitate both the travel of Chadian journalists to Senegal and the travel to Chad for all those involved in the trial proceedings.
On March 25, 2015, a Chadian criminal court convicted 20 Habré-era security agents on charges of murder, torture, kidnapping and arbitrary detention, based on complaints filed by the victims in 2000 but that were stalled until the Senegal created the chambers. The court sentenced seven men to life in prison including Younous, a former director of the DDS, and Djibrine, described as one of the “most feared torturers in Chad” by the Truth Commission. Both men were also wanted by the chambers, but Chad declined to transfer them. Most of the 20 gave their testimony to the chambers when they visited Chad, and it is likely that the chambers will seek to have them come to Dakar for the trial. The Chadian court acquitted four others and ordered that the Chadian government and the convicted persons each pay half of US$125 million in reparations to over 7,000 victims. The court also ordered that the government within a year erect a monument to those who were killed under Habré and that the former DDS headquarters be turned into a museum. These were both among the long-standing demands of the victims’ associations. During the Chad trial, about 50 victims described their torture and mistreatment at the hands of DDS agents.
The chambers are funded in large part by donor countries. In November 2012, Senegal and a number of donor countries agreed to a budget of €8.6million (US$11.4 million at the time) to cover Habré’s trial. Commitments were made by: Chad (2 billion CFA francs or US$3,743,000), the European Union (€2 million), the Netherlands (€1 million), the African Union (US$1 million), the United States (US$1 million), Belgium (€500,000), Germany (€500,000), France (€300,000), and Luxembourg (€100,000). In addition, Canada, Switzerland, and the International Committee of the Red Cross have provided technical assistance. A Steering Committee consisting of Senegal and the donor countries and institutions receives and approves periodic reports from the administrator.
In January 2000, a group of Chadian victims filed a complaint against Habré in Senegal. In February of the same year, a Senegalese judge indicted Habré on charges of torture, crimes against humanity, and “barbaric acts”. However, after political interference by the new Senegalese government of President Abdoulaye Wade, which was denounced by two UN human rights rapporteurs, appellate courts dismissed the case on the ground that Senegalese courts lacked jurisdiction to try crimes committed abroad.
Other Habré victims, including three Belgian citizens of Chadian origin, then filed a case against him in Belgium in November 2000. The Belgian authorities investigated the case for four years, then indicted Habré in 2005 and sought his extradition. A Senegalese court ruled that it lacked jurisdiction to decide on the extradition request.
Senegal then turned to the African Union (AU), which in July 2006 called on Senegal to prosecute Habré “on behalf of Africa” before its own national judicial system. President Wade accepted the AU mandate and Senegalese law was amended to give the country’s courts explicit universal jurisdiction over international crimes, including torture and crimes against humanity. However, Wade contended that Senegal needed full up-front international funding of €27.4 million (US$36.5 million) before beginning any prosecution. Three years of halting negotiations over the trial budget ensued, until Senegal and donor countries finally agreed in November 2010 to a budget of €8.6 million (US$11.4 million) for Habré’s trial.
Just days before the budget agreement, the Court of Justice of the Economic Community of West African States (ECOWAS) ruled that Habré should be tried before a “special ad hoc procedure of an international character.” In January 2011, the AU responded to the ECOWAS court ruling by proposing a plan for special chambers within the Senegalese justice system with some judges appointed by the AU. Senegal rejected the plan, and in May 2011, withdrew from negotiations with the AU over creation of the tribunal.
In 2011 and 2012, Belgium issued three more extradition requests, which were not properly transmitted to the courts by the Senegalese authorities.
On July 20, 2012, in response to a suit brought by Belgium, the International Court of Justice (ICJ), the UN’s highest judicial organ, found that Senegal had failed to meet its obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and ordered Senegal to prosecute Habré “without further delay” if it did not extradite him.
The new Senegalese government of Macky Sall reacted quickly to the ICJ decision, expressing regret that Habré’s trial had not taken place sooner and reaffirming its commitment to begin proceedings quickly. Negotiations resumed between Senegal and the AU, which ultimately led to an agreement to create the Extraordinary African Chambers to conduct proceedings within the Senegalese judicial system. On December 17, the Senegalese National Assembly adopted a law establishing the special chambers. On February 8, 2013, the Extraordinary African Chambers were inaugurated in Dakar.
As demonstrated by the Habré case, universal jurisdiction is an important safety net to ensure that suspects of atrocities do not enjoy impunity in a third state when they cannot be prosecuted before the courts of the country where the crimes were allegedly committed or before an international court. There has been an increase in the use of universal jurisdiction over the past 20 years, notably but not exclusively by courts in European countries. To strengthen the fight against impunity for the most serious crimes, it is critical for courts on all continents to use universal jurisdiction. The African Union has encouraged its member states to adopt legislation to give their national courts universal jurisdiction over war crimes, crimes against humanity and genocide and has taken steps to initiate a network of national prosecutors working on war crimes cases. Several investigations have been open in South Africa and Senegal on the basis of universal jurisdiction.
Habré’s trial is an important step forward in African states taking responsibility to prosecute serious international crimes. However, the Habré trial does not negate the importance of the ICC and the use of universal jurisdiction by non-African states, including European courts, for crimes committed in Africa. These tools are often the only available hope for justice for African victims.
It is a reality that international justice has been applied unevenly. Powerful countries and their allies have often been able to avoid justice when serious crimes are committed on their territories, notably by failing to ratify the ICC treaty and wielding their political influence at the UN Security Council.
Nongovernmental organizations have actively campaigned for African governments to work to improve international justice and its reach —as opposed to undermining it— to limit impunity for atrocities.
Habré’s complaint with the ECOWAS Court of Justice in October 2008, contended that his trial in Senegal, on the basis of Senegal’s 2007-08 legislative changes, would violate the prohibition against retroactive application of criminal law.
On November 18, 2010, the ECOWAS court ruled that to avoid violating the principle of non-retroactivity, Habré would have to be tried before a “special ad hoc procedure of an international character.” International law experts have questioned the ECOWAS court decision because the prosecution of acts that, at the time of their commission, were already prohibited by international conventions and customary law does not violate the principle of non-retroactivity. In this case, examples include torture, war crimes and crimes against humanity. In its 2012 decision, the ICJ made clear that Senegal was under an obligation to investigate and prosecute torture allegations against Habré since it had ratified the UN Convention on Torture in 1987.
Nonetheless, Senegal complied with the ECOWAS court ruling by creating the Extraordinary African Chambers, a “special ad hoc procedure of an international character.”
In April 2013, Habré’s lawyers filed a new application with the ECOWAS court seeking the suspension of the chambers’ activities. In a November 5, 2013 decision, the court held that it did not have jurisdiction to rule on the application because the chambers were established under a treaty between Senegal and the African Union.
Chad never sought Habré’s extradition, and there are serious doubts that Habré could get a fair trial in Chad, where he has already been sentenced to death in absentia for his alleged role in a 2008 rebellion. In July 2011, President Wade threatened to expel Habré to Chad but, days later, retracted his decision in the face of an international outcry over the risk that Habré would be mistreated or even killed.
The International Criminal Court only has jurisdiction over crimes committed after July 1, 2002, when its statute entered into effect. The crimes of which Hissène Habré is accused took place between 1982 and 1990.