On February 8, 2013, the Extraordinary African Chambersin the courts of Senegal will be inaugurated to prosecute the person or persons most responsible for international crimes committed in Chad between 1982 and 1990. It is expected that only the former dictator of Chadduring those years, Hissène Habré, who is accused of thousands of political killings and systematic torture, will be prosecuted.
Habré has been living in exile in Senegalfor more than 21 years but has yet to face justice there. He is 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 all came from Habré's small Gorane ethnic group and which reported directly to 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 by 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 has yet to be charged before the new chambers, but is accused of responsibility for thousands of political killings and systematic torture during his reign in Chad.
In January 2000, after seven of Habré’s victims filed a criminal complaint, a Senegalese judge indictedhim on charges of torture, crimes against humanity, and barbaric acts. Appellate courts later dismissedthe case for lack of jurisdiction.
In September 2005, a Belgian judge 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 uncoveredthe 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 databy the Human Rights Data Analysis Group of the Benetech Initiative 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 all DDS activities.
Habré’s victims have been fighting to bring him to justice for more than 21 years. 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 legal action against Habré from 1990 until the victims’ complaint led a Senegalese judge to indict Habré in February 2000 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 dismissedthe case on the grounds that Senegalese courts lacked jurisdiction to try crimes committed abroad.
Other Habré victims, including three Belgian citizens of Chadian origin, then fileda 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 ruledthat 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 had Senegalese law 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 agreedin 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) ruledthat 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 2011l withdrew from negotiations with 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 transmitthe Belgian legal papers intact to the court. Belgium submitted a fourth extradition request to Senegalese authorities in January 2012.
There was no progress until Macky Sall defeated Abdoulaye Wade in Senegal’s presidential elections in March 2012. 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, a move that heralded the start of criminal proceedings against Hissène Habré.
On July 20, 2012, the International Court of Justice, in the case “Questions relating to the Obligation to Prosecute or Extradite” (Belgium v. Senegal),foundthat Senegal had failed to meet its obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishmentand 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 reactedquickly to the decision, however, 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 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 experts have unanimouslyquestionedthe ECOWAS court decision because, as expressly recognized, 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 convention and customary law (such as, in this case, torture, war crimes and crimes against humanity ).
Nonetheless, the ECOWAS ruling – which is also binding on Senegal – required the creation of a “special ad hoc procedure of an international character.”The Extraordinary chambers respond to the ECOWAS ruling by creating a new court within the Senegalese justice system, which will include other African judges and apply international criminal law, but will rely on Senegalese procedural law and existing infrastructure to limit costs and additional delays.
The Chamber’s statutegives 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.
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 new agreement calls for “Extraordinary African Chambers” to be created inside the existing Senegalese court structure in Dakar, namely the Dakar District Court and the Appeals Court in Dakar. The chambers will have four levels: an investigative section with four Senegalese investigating judges, an indicting chamber of three Senegalese judges, a trial chamber, and an appeals chamber. The trial chamber and the appeals chamber will each have two Senegalese judges and a president from another African country.
The prosecutors and investigating magistrates were nominated by Senegal’s justice minister after approval by the Superior Judicial Council and appointed by the chairperson of the AU Commission. The trial and appeals judges have yet to be named. International judges, who will preside over both the trial and appeals chambers, will come from other AU member countries.
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 will include financial management of personnel, outreach and media information, witness protection and assistance, and judicial cooperation between Senegal and other countries, such as Chad.
Victims will be 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 trial is governed by Senegalese procedural law.
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.
To ensure that trials are efficient, prosecutors may pursue “the most serious” of Habré’s crimes, rather than charging him with all the acts of which he is accused, as explicitly provided in the chambers’ statute. Human Rights Watch suggests that prosecutors select a representative sampling of the gravest crimes for which there is the strongest evidentiary basis. That selection should reflect the severity and the wide scope of the crimes committed by the Habré government, respecting, in particular, the crimes carried out against several of the major ethnic groups in Chad.
Prosecutors may also introduce as evidence the results of prior Belgian and Chadian investigations into Habré’s alleged crimes to avoid duplication of work. 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’ statuteprovides 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 the most affected by this trial. Among the activities anticipated are 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 chambers will be 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).
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 can also order him to pay a fine or can confiscate any property or assets derived directly or indirectly from the crime(s).
The prosecutor will prepare charges (“requisitoire”) which he will submit to the investigative judges who must then carry out their own investigation to determine whether a trial should be held. That investigation is expected to last 15 months.
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.
It is expected that the investigative phase of the case will begin very shortly. According to the approved budget, this phase will last 15 months. Habré’s trial could thus begin in 2014.
The International Criminal Court has prospective jurisdiction, meaning that it can only address crimes committed after July 1, 2002, when its statute entered into effect.