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.
A 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 various ethnic groups such as 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. 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 Pierre Galopin who came to negotiate her release in 1975 from Habré and his men, France also supported Habré after he arrived in power, providing him with arms, logistical support and information, and launching military operations “Manta” (1983) and “Hawk” (1986) to help Chad 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’ decision affirmed their acceptance of the indictment request presented by the Chambers’ Chief Prosecutor, Mbacke Fall. If the judges wish to amend the indictment and add additional charges, they must go back to the prosecutor and ask him to file supplemental charges (réquisitoire supplétif).
This is the third time Habré has been indicted (see further below). In January 2000, after seven of Habré’s victims filed a criminal complaint, a Senegalese judge 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 indicted Habré on charges of crimes against humanity, war crimes, and torture.
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 has requested the indictment of five further officials from Habré’s administration suspected of being responsible for international crimes. These are:
· Saleh Younousand Guihini Korei, two former directors of the DDS, Habré’s political police. Guihini 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 advisor to the presidency and one of those suspected of responsibility in the repression in the South in 1984.
None is currently in Senegal. Saleh Younous and Mahamat Djibrine are in detention in Chad on charges stemming from complaints filed by victims in the Chadian courts (see below). Zakaria Berdei is also believed to be in Chad, though he is not in custody. The Chambers have requested their transfer to Dakar for several months, but thus far the Chadian government has failed to cooperate and transfer them. Abakar Torbo and Guihini Korei remain at large. Both Korei and Torbo appear to be subjects of international arrest warrants issued by Chad in May 2013.
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 amurderous 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 a military school 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 new Senegalese government of President Abdoulaye Wade, which was denounced by two UN human rights rapporteurs, appellate courts dismissedthe 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.” President 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 should 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 negotiations with the AU over creation of the tribunal.
In July 2011, President Wade threatened to expel Habré to Chad but, days later, retracted his 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 (see below). 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 ICJ decision, expressing regret that Habré’s trial had not taken place sooner and reaffirming its commitment quickly to begin proceedings.
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 experts have 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 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 decision issued on November 5, 2013, the court held that the Extraordinary African Chambers had an international character and that it did not have jurisdiction to rule on the application because the Chambers were established pursuant to a treaty between Senegal and the African Union.
Habré’s lawyers claim that the current Chadian government of Idriss Déby, who overthrew Habré, 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) and its cooperation with the investigating judges.
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.
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 will each be composed of two judges of Senegalese nationality and a non-Senegalese judge from another Member State of the African Union who will 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.
The defendants are entitled to the right to a fair trial in accordance with international law. Hissène Habré 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 provisional measures, submit their observations, request copies of all documents, question witnesses or the defendants at trial through the court President, and seek reparations.
The Chambers may order reparations to be paid into a victims’ fund that can also receive 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 2, 2013, 1,015 victims registered as civil parties, and many more have registered since. The largest grouping, including the initial 1.015, is represented by a legal team led by Chadian attorney Jacqueline Moudeïna and Senegalese attorney Assane Dioma N’Diaye.
15. The Chadian government has filed to be admitted as civil party. What is the status of the request?
On February 25, 2014 the Minister of Justice of Chad announced in Dakar that the Chadian government had filed to be admitted as a civil party before the Chambers, saying that the state considers itself a “victim” of Habré’s economic crimes, including the war crime of pillage. Human Rights Watch believes, however, that Chadian state cannot be a victim of the crimes over which the Chambers has jurisdiction. Genocide is committed against “groups,” crimes against humanity against “civilian populations,” and torture against “persons.” The state could be a victim of the war crime of pillage but only when that crime was committed by enemy forces, not by the state’s president.
The Chambers’ judges have yet to rule on the request.
The investigating judges have had access to a considerable amount of evidence that has been collected by various sources in the 23 years since Habré’s fall. The Chambers had access to the results of prior Belgian and Chadian investigations into Habré’s alleged crimes, as well as to a file prepared by Human Rights Watch together with other NGOs.
In 2001, Human Rights Watch found 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. The Chadian government then gave permission to the victims’ association and to Human Rights Watch and the International Federation of Human Rights (FIDH) to copy the documents. Analysis of the data by the Human Rights Data Analysis Group 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. Human Rights Watch and the FIDH also conducted more than 200 interviews of alleged victims and witnesses.
A Belgian judge and his team spent years investigating Habré’s crimes before indicting him on charges of crimes against humanity, genocide, war crimes, and torture. The Belgian file, which was immediately given to the judges of the Chambers, includes the DDS documents as well as interviews with witnesses and “insiders” who worked alongside Habré.
A 1992 National Truth Commission in Chad accused Habré’s government of systemic torture and up to 40,000 political assassinations, and documented the methods used to carry out torture. One of the first witnesses interviewed by the investigating judges was the president of the Truth Commission, a leading Chadian lawyer.
Almost all of the evidence and witnesses are located in Chad. As a result, the Chambers need to rely on the assistance and cooperation of the 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 agreement addresses a wide range of issues that could potentially arise during the proceedings, including:
- The receiving of testimonies and declarations;
- The notification of the Chambers’ 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 have now conducted three missions (“commissions rogatoires”) to Chad in August - September 2013, December 2013 and March 2014, and a fourth and final mission is expected at the end of May. They were accompanied by the Chief Prosecutor and his deputies as well as police officers. During their visits, the judges gathered statements from 2,416 direct and indirect victims and approximately 72 other key witnesses. Although the Judicial cooperation agreement allows the Senegalese investigative judges to interview persons outside of the presence of the Chadian authorities they have not chosen to do so. Human Rights Watch notes that the conduct of interviews without the presence of Chadian authorities would provide a safeguard against the risk of any actual or perceived interference by the Chadian government, and hopes that the investigative judges take this into consideration for their next mission. The judges have also conducted site visits to former detention centers, and in August 2013 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 Chambers have not yet received certified copies of the documents. The investigative judges have also identified a number of sites in which mass graves may be located and plan to carry out exhumations.
Habré’s lawyers allege that given the enmity between current president Idriss Déby and Habré, they will not be able to work in Chad. Human Rights Watch is not aware of any attempts made by them to date to go to Chad. The Chadian government should take all steps to ensure that Habré’s lawyers enjoy the freedom and security to work in Chad.
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.
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 ethnic groups in Chad.
The Chambers’ Statute provides for trial proceedings to be filmed and recorded for broadcasting purposes, as has happened in other internationalized trials, and for public access to the trial by journalists and non-governmental organizations. In April 2014, the Senegalese National Counsel of Audiovisual Regulation said that under Senegalese law, the trial should not be televised, but the Chambers’ prosecutor noted that in this respect as an international body created by a treaty with the AU, the Chambers are are governed by their statute and not by other provisions in Senegalese law. Human Rights Watch believes that retransmission of the trial, to Chad in particular, 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 Chambers’ budget calls for a robust outreach program to both Chad and Senegal. In January 2014, a contract for the organization of outreach activities was awarded to a consortium of groups from Senegal, Belgium and Chad which began its activities in March. The consortium has begun training journalists in both countries and organizing public debates and plans to produce materials to explain the trial.
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. The ministers of justice of both countries have agreed that the trial will be broadcast. 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, Switzerland, and the International Committee of the Red Cross have provided technical assistance. A Steering Committee composed of Senegal and the donor countries and institutions receives and approves periodic reports by the Administrator.
If the accused are 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).
After the investigation phase, which is expected to last until the end of 2014, the judges will issue a ruling (décision de cloture). 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 facing trial before tribunals on issues of international criminal law – such as Slobodan Miloševićand Radovan Karadžić– begin by asserting that they did not recognize the authority of the tribunal or that they would not cooperate, but have in practice sought to use the trial as a platform to present their version of events. In any event, non-cooperation does not change the issues of due process and rules of evidence in particular that the burden remains on the Prosecution to prove Habré’s guilt beyond a reasonable doubt. However, if an accused adopts a position of non-cooperation, they are inevitably compromising their own ability to challenge the evidence against them and the opportunity to call into question the Prosecution’s case as to their guilt.
If the matter is held over for trial, a period of preparation will be necessary, in particular for the defense to exercise its right to adequate time to prepare a defense and for the newly-appointed trial judges to prepare themselves. Habré’s trial, if it happens, could thus begin in the first part of 2015.
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 were perpetrated between 1982 and 1990.