On July 2, 2013, Hissène Habré was charged with crimes against humanity, torture and war crimes and placed in pre-trial detention by the “Extraordinary African Chambers” in the courts of Senegal. The Chambers were inaugurated in February 2013 to prosecute the “person or persons” most responsible for international crimes committed in Chad between 1982 and 1990.
Habré has been living in exile in Senegal since he was overthrown in 1990. He was also wanted by Belgium on charges of crimes against humanity, war crimes, and torture.
The following questions and answers provide more information on the case and what lies ahead.
Hissène 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 fled to Senegal in 1990 and has since been living there in exile.
Habré’s one party rule was marked by widespread atrocities. He periodically targeted various ethnic groups such as the Sara (1984), Hadjerai (1987), Chadian Arabs and the Zaghawa (1989-90), killing and arresting group members en masse when he believed that their leaders posed a threat to his 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. 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 the abduction of the French anthropologist Françoise Claustre in 1974 and the death of Captain Galopin who came to negotiate her release in 1975 from Habré and his men, France also supported Habré after he arrived in power. France provided him with arms, logistical support and information, and launched military operations “Manta” (1983) and “Hawk” (1986) to help Habré’s regime push back Libyan forces.
Habré was charged with crimes against humanity, torture and war crimes by the Chambers’ investigating judges on July 2, 2013, and then remanded to custody. The judges thus accepted the indictment request brought by the Chambers’ Chief Prosecutor, however the indictment is not public at this stage so the specifics of the crimes with which he is charged are not publicly known. If the judges wish to amend the indictment and add additional charges, they must go back to the prosecutor and ask them to file supplemental charges (réquisitoire supplétif).
This is the third time Habré has been indicted. In January 2000, after seven of Habré’s victims filed a criminal complaint, a Senegalese judge had indicted him on charges of torture, crimes against humanity, and ‘barbaric acts.’ Appellate courts later dismissed the case for lack of jurisdiction. In September 2005, a Belgian judge had indicted Habré on charges of crimes against humanity, war crimes, and torture.
There is both documentary and testimonial evidence against Habré.
In 2001, Human Rights Watch recovered the files of the DDS in its abandoned N’Djamena headquarters. 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 by the Human Rights Data Analysis Group reveals 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.
Human Rights Watch and the International Federation of Human Rights (FIDH) have also gathered testimony from hundreds of victims who suffered abuse at the hands of the DDS and from former members of the DDS who say that Habré was informed regularly of DDS activities.
According to 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.
The Prosecutor stated publicly that he has requested the indictment of five further officials of Habré’s administration suspected of having committed international crimes. These are:
· Saleh Younous and Guihini Korei, two former directors of the DDS, Habré’s political police. Guihini Korei is Habré’s nephew;
· Abakar Torbo, former director of the prison service. Both Korei and Torbo appear to be subjects of international arrest warrants issued by Chad in May 2013;
· Mahamat Djibrine, also known as “El Djonto,” one of the “most feared torturers in Chad,” according to the National Truth Commission and currently held in detention in Chad as part of an action brought by his victims; and
· Zakaria Berdei, former special security advisor to the presidency and one of those suspected of responsibility in the repression in the South in 1984.
None is currently in Senegal.
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 investigating judges are thus free to pursue charges against President Déby for any alleged international crimes between 1982 and 1990. Déby was Commander in Chief – « Comchef » – of Habré’s forces during the period known as “Black September” when a murderous wave of repression was unleashed with the goal of eliminating the southern elite and replacing them with people loyal to Habré. By 1985, however, Déby had lost Habré’s confidence and, although he returned as a defense advisor after a period of study in France, he no longer had an operational role.
Habré’s victims have campaigned to bring him to justice since 1991. In July 2010, the Nobel Peace Prize winner Archbishop Desmond Tutu and 117 groups from 25 African countries described the victims’ struggle as an “interminable political and legal soap opera.”
Senegal took no action against Habré from 1990 until the filing of the victims’ complaint in January 2000. 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 Senegalese government, 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 on charges of crimes against humanity, war crimes, and torture, and sought his extradition in 2005. 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.” Senegal’s president at that time, Abdoulaye Wade, accepted the AU mandate and Senegalese law was amended to give the country’s courts explicit extraterritorial jurisdiction over international crimes. However, the Senegalese government contended that it needed full up-front funding of €27.4 million (US$36.5 million) from the international community before beginning any investigation and 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 must be tried before a “special ad hoc procedure of an international character” (the ECOWAS decision is discussed in more detail below). In January 2011, the AU responded to the ECOWAS 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 negotiationswith the AU over creation of the tribunal.
In July 2011, Senegal threatened to expel Habré to Chad but, days later, retracted its decision in the face of an international outcry. In announcing the retraction, Senegal’s foreign minister ruled out holding Habré's trial in Senegal. The Chadian government then announced its support for extraditing Habré to Belgium to face trial.
In August 2011 and January 2012, a Senegalese appeals court refused to rule on two more Belgian extradition requests because it concluded that the legal papers were not in order. In both instances, the Senegalese government apparently did not transmit the Belgian legal papers intact to the court. Belgium submitted a fourth extradition request to Senegalese authorities in January 2012.
There was no progress in the case until Macky Sall defeated Abdoulaye Wade in Senegal’s presidential elections in March 2012, and the International Court of Justice ordered Senegal to bring Habré to justice. The new Senegalese government quickly indicated that it planned to prosecute Habré in Senegal rather than extradite him to Belgium and negotiations resumed between Senegal and the AU, which ultimately led to an agreement to create the Extraordinary African Chambers to conduct the trial within the Senegalese judicial system. On December 17, the Senegalese National Assembly adopted the law establishing the special Chambers. On February 8, 2013, the Extraordinary African Chambers were inaugurated in Dakar.
On July 20, 2012, the International Court of Justice, in the case “Questions relating to the Obligation to Prosecute or Extradite" (Belgium v. Senegal), 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 decision, which under the UN Charter is binding on Senegal, brought an end to the suit Belgium filed in February 2009, following Senegal’s refusal to extradite Habré and continued stalling on his trial before domestic courts.
The new Senegalese government reacted quickly to the decision, expressing regret that Habré’s trial had not taken place sooner and reaffirming its commitment to begin proceedings by the end of the year.
Habré filed a complaint with the ECOWAS Court of Justice in October 2008, contending 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 expertshave questioned the ECOWAS court decision, as has the Special Tribunal for Lebanon, because the principle of non-retroactivity is not violated by the prosecution of acts which, at the time of their commission, were already prohibited by international conventions and customary law (such as, in this case, torture, war crimes and crimes against humanity ).
Nonetheless, Senegal complied with the ECOWAS ruling by creating a “special ad hoc procedure of an international character.” The Extraordinary African Chambers are the result of an international agreement between an international organization – the African Union – and a State. It will include other African judges and will apply international criminal law, relying on Senegalese procedural law and existing infrastructure to limit costs and additional delays.
Although the special structure of the Extraordinary African Chambers meets the requirements laid out by the ECOWAS court, Habré’s lawyers filed a new application with the court on April 23, 2013, in an attempt to halt the proceedings against their client. They have asked the court, as a provisional measure, to “order the immediate suspension of activities, investigations, and prosecutorial acts undertaken or to be undertaken within the framework of the application of the Chambers’ statute….”
But no decision from the ECOWAS court would affect Senegal’s obligation to bring Habré to justice. On July 20, 2012, the International Court of Justice ruled that “Senegal’s duty to comply with its obligations under the [United Nations] Convention [against torture] cannot be affected by the decision of the ECOWAS Court of Justice.” No decision of the ECOWAS court could therefore call into question Senegal’s duty to prosecute or extradite Habré.
Senegal’s obligations as spelled out by the international community’s highest court are binding and leave no room for inaction. According to article 94(1) of the UN Charter, “[e]ach Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” In addition, article 103 provides that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” In short, obligations under the International Court of Justice ruling trump those under ECOWAS.
Finally, the ECOWAS court, as a sub-regional court, does not have the jurisdiction to rule on the legality of an African Union act, which underlies the creation of the Extraordinary African Chambers.
Habré’s lawyers claim that the current Chadian 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 contribute meaningfully to the advancement of the case until its recent agreement to help finance the court (see below).
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 correspond to the dates of Habré’s rule.
Habré has never been tried in Senegal, Chad, or elsewhere for crimes against humanity, war crimes, or torture related to events that took place during his reign, from 1982 to 1990.
Senegalese courts dismissed charges against Habré in 2000-2001 on the grounds that they did not have jurisdiction to try him. The merits of the charges were therefore never considered.
Habré was tried in absentia and sentenced to death by a Chadian court in August 2008 for his alleged role in the attempt to overthrow the Chadian government in February 2008. However, these charges are unrelated to the crimes at issue and therefore have no bearing on Habré’s trial before the new Chambers in Senegal.
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 Member State of the African Union.
The prosecutors and investigative judges were nominated by Senegal’s Minister of Justice and appointed by the Chairperson of the AU Commission. In accordance with the Statute, which provides for the progressive installation of the Chambers, and pending a decision by the investigative judges on the results of the investigation, the judges of the Trial and Appeals Chambers remain to be selected by the African Union and Senegal. The Trial and Appeals Chambers shall each be composed of two judges of Senegalese nationality and a non-Senegalese judge from another Member State of the African Union who shall also serve as President of the Chamber.
The Chambers have an Administrator – Aly Ciré Ba – to ensure the smooth functioning of their activities and to handle all of the 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.
Hissène Habré is entitled to the right to a fair trial in accordance with international law, and is currently represented by legal counsel of his own choosing. The International Covenant on Civil and Political Rights and the African Charter onHuman 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.
Victims are permitted to participate in proceedings as civil parties, represented by legal counsel. The fact that someone becomes a civil party does not mean that the prosecutor will pursue that person’s individual case, however.
The Chambers may order the victims to choose a common legal representative to ensure the effectiveness of the proceedings. Indigent victims may seek financial assistance from the Chambers for the legal representation. The mode of participation of the victims at and before trial is governed by Senegalese procedural law. In particular, they may request for provisional measures, for expertise, submit their observations, request copies of all procedural documents, question the witnesses or the Defense through the President, and seek reparations.
The Chambers may order reparations to be paid into a victims’ fund that will be augmented by any voluntary contributions by foreign governments, international institutions, and non-governmental organizations. Reparations from the victims’ fund will be available even to victims who do not participate in Habré’s trial.
On July 15, 2013, 1,015 victims registered as civil parties. They are represented by a legal team led by Chadian attorney Jacqueline Moudeïna and Senegalese attorney Assane Ndoma N'Diaye.
Almost all of the evidence and witnesses are located in Chad. As a result, the Chambers will be in constant need of assistance from Chadian authorities and courts.
On May 3, 2013, Senegal and Chad signed a “Judicial cooperation agreement between the Republic of Chad and the Republic of Senegal for the prosecution of international crimes committed in Chad between 7 June 1982 to 1 December 1990.” A key feature of the agreement is that each side will designate a Central Authority through whom all requests will flow. By being in direct contact, the Central Authorities can avoid the cumbersome administrative procedures associated with mutual legal assistance. The draft addresses a wide range of issues that could potentially arise during the proceedings, including:
- The receiving of testimonies and declarations;
- The notification of court decisions and judgments;
- The transportation and security of witnesses and experts; and
- The handing over of documents, reports, information and evidence to the Senegalese authorities.
The investigative judges conducted their first mission to Chad from August 20 to September 2, 2013. They were accompanied by the Prosecutor and his deputies. During their visit, the judges met with the Chadian judicial authorities and the representatives of victims’ organizations. They also gathered statements from 1,097 direct and indirect victims and some thirty other key l witnesses. The judges also conducted site visits to former detention centers, and the archives of the DDS were moved from the former DDS headquarters to a special building in N’djamena which has been set aside by the Ministry of Justice for use by the Chambers. The investigative judges are planning two further visits in the coming months.
Habré’s lawyers allege that given the enmity between current president Idriss Déby and Habré, they will not be able to work in Chad. The Chadian government must take all steps to ensure that the agreement is fully implemented and the freedom of Habré’s lawyers to carry out a full investigation is ensured.Because the chambers are part of the Senegalese court system, the chambers have in personam jurisdiction over Habré who resides in Senegal. At any point of their investigation, the judges may convoke Habré and may place him under indictment.
In order to ensure the effectiveness of the trial and as specified in the Statute, the Chambers may choose to prosecute Habré for “the most serious crimes” within their jurisdiction, rather than charge Habré and his main accomplices with all possible acts they may have committed. To date, the Chambers have charged Habré with the same crimes of which he is accused by the Chief Prosecutor: war crimes, crimes against humanity and torture. The Prosecutor may bring additional charges via a réquisitoire supplétif as the investigation proceeds, either of his own initiative or at the request of the investigative judges. This would enable the Prosecutor to add new crimes to the list of initial charges.
Experience of proceedings dealing with international crimes, both before international and national courts, strongly suggests that for reasons of cost, efficacy and manageability, a selection of specific crimes should be made. That selection should reflect the gravity and scope of the crimes committed by the Habré regime, including in particular, the victimization against several of the major ethnic groups in Chad.
The Chambers also have access to the results of prior Belgian and Chadian investigations into Habré’s alleged crimes to avoid duplication of work, as well as to a file prepared by Human Rights Watch and other NGOs. A Belgian judge and his team spent nearly four years investigating Habré’s crimes before indicting him on charges of crimes against humanity, war crimes, and torture. A 1992 National Truth Commission in Chad accused Habré’s government of systemic torture and up to 40,000 political assassinations, and meticulously documented the methods used to carry out torture.
The Chambers’ Statute provides for trial proceedings to be recorded for broadcast in Chad and for public access to the trial by journalists and non-governmental organizations.
The approved budget calls for a robust outreach program to ensure that the trial is meaningful to the people of Chad, arguably those most interested in and those most affected by this trial. The anticipated outreach activities include: transmitting trial proceedings to Chad; translating proceedings into local Chadian languages; producing audio and video summaries and written materials with regular updates about progress in the case; and bringing Chadian journalists and civil society leaders to Senegal to observe the court proceedings. The budget includes 1.25 million euros for outreach.
The Judicial Cooperation Agreement (see above)commits Chad to broadcasting the recordings of proceedings on public radio and television and to allowing private media entities to do the same. Chad and Senegal have also agreed to cooperate in order to facilitate both the travel of Chadian journalists to Senegal and the travel to Chad for all those involved in the trial proceedings.
The Chambers are funded in large part by the international community.
In November 2012, Senegal and a number of donor countries agreed to a budget of €7.4million (US$9.7 million) 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 has already begun to provide technical assistance to the office of the prosecutor. A Steering Committee composed of Senegal and the donor countries will help mobilize the funds, assist in the selection of outreach providers and oversee the outreach process, and receive and approve periodic reports by the Administrator.
If Habré is found guilty, the Chambers could impose a sentence of up to life imprisonment, 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).
Now that the Chambers’ Chief Prosecutor has submitted charges to the investigative judges, the judges are conducting their own investigation, during which they seek both inculpatory and exculpatory evidence. Among other things, they have already conducted one investigative mission to Chad and plan to conduct two further visits. After the investigation phase, which is expected to last 15 months, the judges will issue a ruling (décision de clôture). If they find there is sufficient supporting evidence, they may issue a referral decision (arrêt de renvoi) and send the matter for trial. The referral may be total or partial, depending on the evidence. If the judges determine there is insufficient evidence to support any of the charges, they may issue a decision to dismiss the proceedings (arrêt de non-lieu).
Prior to the judges’ decision, the files would be turned over to the Chief Prosecutor in their entirety for his final pleadings. The prosecutor can request a referral to the trial court or the dismissal of the proceedings, but his stance is not binding on the judges. The decision of the investigative judges may be appealed by the Prosecution or the Defense.
Many defendants in international trials – such as Slobodan Miloševićand Radovan Karadžić– begin by asserting that they do not recognize the authority of the tribunal or that they will not cooperate, but have in practice sought to use the trial as a platform to present their version of history. In any event, the rules of the case remain the same, and the burden remains on the Prosecution to prove Habré’s guilt beyond a reasonable doubt. It is risky for the accused to adopt such a non-cooperative attitude, as he is thereby impeding his own ability to discuss the evidence held against him head-on.
According to the approved budget, the investigative phase will last 15 months. Then, if the matter is held over for trial, a period of preparation may be necessary, in particular for the defense. Habré’s trial could thus begin at the end of 2014 or 2015.
The International Criminal Court only has jurisdiction over crimes committed after July 1, 2002, when its statute entered into effect.