Options for the Trial of Hissène Habré
Human Rights Watch welcomes the commitment of the Senegalese authorities to ensure that Hissène Habrés victims have their day in court and that Mr. Habré answers the charges against him within the context of a fair trial. Indeed, as noted above, Senegal has an international legal obligation under the U.N. Convention against Torture either to prosecute or to extradite Hissène Habré for the acts of torture of which he is accused. Human Rights Watch also welcomes the African Unions resolution on the case which reiterates the A.U.s commitment to fighting impunity.
Several possibilities exist for the trial of Hissène Habré. Human Rights Watch agrees with the A.U. Assembly that any arrangement for the trial of Hissène Habré must be measured against a series of benchmarks including: adherence to international fair trial standards, including the independence of the judiciary and impartiality of the proceedings; efficiency; and accessibility to Chadians. While Human Rights Watch also agrees that priority should be given to an African mechanismand indeed Human Rights Watch participated in the filing of the original case in Senegal in 2000this preference should not obscure the ultimate goal of a speedy and fair trial for Mr. Habré and justice for his victims.
One of the benchmarks established by the A.U. for the CEAJ to consider is efficiency in terms of cost and time of trial. The trial of Hissène Habré will inevitably involve hundreds of witnesses and, depending on where it is held, many millions of dollars. The difficulties of proving crimes committed in another country over fifteen years ago are considerable. As an example, the recent trial in London of Afghan warlord Faryadi Zardad was estimated to have cost over three million pounds (U.S.$5.2 million).37 The costs of the two Belgian trials of Rwandans for taking part in the 1994 genocide ranged from 250,000 to 500,000 euros.38 This does not include the pre-trial investigation and salaries. If an entire new court were established, the costs could easily rise to over U.S.$100 million as the following examples illustrate:
The International Criminal Tribunal for Rwanda and its counterpart the International Criminal Tribunal for the former Yugoslavia will have both cost over U.S.$1 billion, but these operations are considerably more complex than the present case.
If the trial is held in Belgium, the costs will, of course, be borne by Belgium and would not require the inherent costs of setting up a new judicial structure.
Another benchmark set forth by the assembly is time. Hissène Habrés victims have already been waiting for fifteen years to find a court to hear their case, and it has been almost six years since they filed the first case in Senegal. Many of the victims have died since then, including one of the plaintiffs in the Senegal case, and one of the lead plaintiffs in Belgium, both of whom died as a result of their mistreatment under Habré.
The proceedings of a trial must be made accessible to the Chadian population. The Special Court for Sierra Leone, for instance, is implementing outreach programs to make the court accessible to the Sierra Leonean population, and may be considered a model. Video summaries are prepared twice a month and audio summaries once a week, and these summaries are distributed to radio and TV stations. If the trial is held outside of Chad, as it should be, additional efforts must be made to inform a distant public.
Chad would be the natural place to try Hissène Habré. It is the country where his alleged crimes were committed, where the victims reside and where the evidence is located. Chad has never formally sought Mr. Habrés extradition, however (despite occasional claims to the contrary). Even if it were to do so, there are important reasons not to send Mr. Habré back to Chad: there is a serious risk that Mr. Habréa former dictator who still has many political enemies in Chadwould be mistreated or even killed.41 In addition, Chads weak judiciary is not in a position to guarantee Habré a fair trial or to carry out the proceedings efficiently. According to the independent expert of the U.N. Commission on Human Rights, in Chad, the authorities have not been able to set up a system for the administration of justice.42 The cases filed by victims in Chadian courts in October 2000 against Habré-era ex-DDS agents accused of murder and torture are stalled five years later because the Chadian investigative judge does not have the necessary financial means, security, or personnel at his disposal to allow him to properly carry out his investigation.43 The return of Hissène Habré could also become a factor of political destabilization in a country in which several rebel groups are operating and which is threatened by spill-over violence from Darfur, Sudan.44
In his announcement of November 25, the Senegalese minister of foreign affairs stated that Senegal, conscious that the presence of Mr. Habré in Chad could have serious consequences which would not permit the exercise of dispassionate justice, had excluded the option of his return.45 Human Rights Watch welcomes this declaration and agrees that the return of Hissène Habré to Chad to stand trial would not be appropriate. The government of Chad also appears to agree that Mr. Habrés trial in Chad would not be appropriate. As noted above, the government of Chad has consistently supported Hissène Habrés extradition to Belgium, inviting the Belgian judge to investigate in Chad and informing the Belgian judge that it waived any immunity of jurisdiction that Hissène Habré might seek to assert.
As noted above, Hissène Habrés victims originally sought to have him tried in Senegal, the country where he has lived since 1990. Senegal was then, and still is, under a legal obligation to prosecute Hissène Habré if he is not extradited. After a Senegalese judge indicted Mr. Habré in 2000 on charges of torture and crimes against humanity, the appellate courts ruled that Senegal had not enacted legislation to implement the Convention against Torture and therefore had no judicial competence to pursue the charges because the alleged crimes had been committed by a non-Senegalese outside of Senegal.46
Consistent with the interpretation of Senegalese law by its Cour de Cassation, Hissène Habré could still be tried in Senegal if Senegal modified its code of criminal procedure to provide its courts with jurisdiction to try international crimes such as genocide, crimes against humanity, war crimes, and torture even when the crimes were committed extraterritorially.47 Although this course was suggested at a seminar organized by the Ministry of Justice and Senegalese human rights groups in March 2003, and specific text was adopted there,48 the proposition was never taken up, and it is not clear that the political will exists in Senegal to do so now.
In 2003, President Wade explained that:
Mr. Habré will not be tried in Senegal because the acts were committed elsewhere and because the victims themselves are outside Senegal. I dont want to find myself with a trial in which the civil parties and the defense produce two to three thousand witnesses. That would hold the Senegalese judicial system up to ridicule.49
In October 2005,President Wade repeated that:
Hissène Habré cannot be judged properly in Dakar because the judge wanting to investigate the crimes or the acts that Hissène Habré is charged with, what can he do? He will not be able to go to Chad and the victims will bring one thousand witnesses and the other side will also bring one thousand witnesses. 50
If, however, the fruits of the Belgian pre-trial investigationnotes from the judges mission to Chad, police reports, witness interviews, and in particular, the thousands of DDS documents and the analysis of these documentscould be used by the Senegalese courts, this would not only reduce the cost involved, but would eliminate the long delay that would be caused by conducting a whole new probe.
In addition, the CEAJ could explore the possibility of external assistance (international or African Union) to pay for the added costs such as the transportation of witnesses and victims and the recruitment of additional personnel. In this regard, it is quite possible that Belgium would agree to help defray the costs of such a trial in Senegal.
Alternatively, a kind of hybrid Belgian-Senegalese court might be possible in which the resources and personnel of the two countries would be combined at a trial to take place in Senegal.
This solution is contingent on Senegals political will to adopt the necessary legislation to establish judicial competence over Mr. Habrés alleged crimeswill that has heretofore been lackingand optimally to allow incorporation of the results of the Belgian pre-trial investigation (or to allow some sort of hybrid court). If this solution is chosen, then, a proviso should stipulate that if Senegal were unable to make the necessary legislative changes by the January 2007 summit to give its courts judicial competence over Mr. Habrés alleged crimes, the A.U. should recommend that Senegal extradite Hissène Habré to Belgium.51
To test the feasibility of such a solution, the CEAJ might wishbefore the July 2006 summitto contact the Belgian and Senegalese authorities.
Other African Countries
Another possibility would be Hissène Habrés trial in a third African country. In the fifteen years since Hissène Habré fled Senegal, no other African country has asked for his extradition nor heretofore taken any initiative to ensure that the victims of Mr. Habrés alleged crimes have their day in court. It is unclear whether any African country has laws (such as those in Belgium, Spain, or Germany) permitting it to commence an investigation for crimes committed abroad by non-nationals when the accused is not in its territory and then to seek the accuseds extradition, and certainly none has the practice of trying non-nationals for crimes committed extraterritorially. Similarly, while there were many foreigners among Mr. Habrés victims, African countries do not seem to give their courts competence to punish a crime committed abroad against one of their nationals (the passive personality basis of jurisdiction). There were, for instance, Senegalese victims of Hissène Habré, and yet Senegals courts ruled that they had no competence to hear the case.
If an African country with an independent judiciary that has competence over the acts and adheres to international fair trial standardspreferably a Francophone countrywere rapidly to seek Hissène Habrés extradition, this could constitute a viable option. That country should have abolished the death penalty, or agreed not to impose it in this case. That country would have to bear the costs, or have the costs borne through international assistance.
This option would still have the disadvantage of requiring that the pre-trial investigationto which Belgium devoted yearsbegin all over again. An arrangement would thus need to be devised that would permit the results of the Belgian investigation to be transferred to that country, as described above in the section on Senegal.
An African Tribunal
No existing African Union tribunal has the jurisdiction or the infrastructure to conduct the criminal trial of Hissène Habré. Neither the African Court for Human and Peoples Rights, nor the Court of Justice of the African Union is operational yet, and neither is competent to hear a criminal case.
The African Court of Justice
The protocols that establish the Court of Justice, which were provided for by the Constitutive Act of the African Union, have not yet received enough ratifications by member states to bring the Court into force. In any case, the Courts competence is restricted to disputes between member states which have ratified the protocols; its jurisdiction does not extend to criminal matters.52
The African Court of Human and Peoples Rights
Similarly, while the African Court of Human and Peoples Rights has been in force since January 2004, under its protocol, the jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned (art. 3). It does not have competence over alleged crimes by individuals.
The lack of criminal competence is moreover suggested by the criteria for selection of judges. African Court of Human and Peoples Rights judges are to have recognized practical, judicial or academic competence and experience in the field of human and peoples rights.
The two African courts have no legal mandate to receive the transfer of detainees from other countries or to maintain persons deprived of their liberty. Beyond this, the two African courts do not have the infrastructure required to prepare and adjudicate criminal trials. They have, for instance, no investigators, forensic experts, police, witness protection programs, or pre-trial and during-trial detention facilities. To extend the competence of the current African courts to allow them to try Mr. Habré would thus also require the creation of the infrastructure of a criminal court, with all the budgetary implications of the establishment of a new tribunal described below.53
A Permanent Court
One proposal would be to create a standing African court to try the worst international crimes, including those allegedly committed by Hissène Habré. This proposal would, for cases committed after the July 2002 entry into force of the Rome Statute, duplicate the jurisdiction of the International Criminal Court (ICC), however. Under the Rome Statute, the ICC already may investigate and prosecute those individuals accused of crimes against humanity, genocide, and crimes of war when national courts are unwilling or unable to do so. Twenty-sevenAfrican states are parties to the ICC. Senegal was the first state to ratify the Rome Statute.
If such a court were to have retrospective, rather than prospective, jurisdiction, so as to not unnecessarily duplicate the efforts of the ICC, there would be little prospect for its adoption. The experience in preparing the Rome Statute suggests that few states would be willing to bring into force a mechanism that would be able to try crimes of the past. As noted below, the costs of a permanent tribunal would be enormous.
An Ad Hoc Court
Another possibility is to establish an ad hoc tribunal only to prosecute the crimes allegedly committed by Hissène Habré (or perhaps, to use the Sierra Leone formulation, to prosecute those persons who bear the greatest responsibility for serious violations of human rights and humanitarian law in Chad from 1982 to 1990). This might be an appealing possibility, politically and symbolically. However, to come to fruition, such a new tribunal would have to overcome enormous hurdles.
The first hurdles are sustained political will and time. The Special Court for Sierra Leone took two years to establish from the time it was requested in June 2000 by Ahmad Tejan Kabbah, president of Sierra Leone. It was another two yearsJune 2004before trials actually began. Approving the Khmer Rouge Tribunal in Cambodia took seven years of negotiations, through 2004, and the judges and other personnel are still yet to be selected. An ad hoc court would mean asking Hissène Habrés victims to wait for many more years, precisely at the moment in which a strong and independent judiciary has initiated proceedings.
Another very large hurdle is money. Funding would be needed for the recruitment of judges, the prosecutors office, the registry (including witness and victim support), and the defense office. As noted above, the Special Court for Sierra Leone, which might be roughly comparable except for its in-country location, has cost U.S.$79 million in its first three years of operation. Additional costs for a trial of Hissène Habré held outside of Chad would include the transportation of hundreds of witnesses and the travel to Chad to conduct the investigation.
Even the Special Court for Sierra Leone, which has made significant strides towards bringing justice for atrocities that were committed during the Sierra Leone armed conflict, still faces limited and uncertain funding, as it is primarily financed through voluntary contributions of states. At a meeting in September 2005, states pledged less than U.S.$10 million to finance the activities of the Special Court, far short of the U.S.$25 million sought for the upcoming year.
One way to reduce at least the costs of the pre-trial investigation would be to make some arrangement by which the results of the Belgian investigation could be transferred.
Belgium is the most viable and straightforward option for a trial of Hissène Habré because the Belgian justice system has already investigated the charges and issued an arrest warrant and an extradition request, and because Belgium offers the immediate possibility of a fair trial before an independent court. A number of Hissène Habrés victims are Belgian citizens and they are seeking justice in the Belgian courts.
A Belgian judge and the Belgian judicial police have been investigating the charges against Hissène Habré since 2001, pursuant to that countrys former universal jurisdiction law. Dozens of witnesses have gone from Chad to Belgium to testify before the judge.In 2002, at the invitation of the Chadian government, the Belgian judge, a prosecutor, and a police team visited Chad where they interviewed dozens of witnesses, including victims as well as collaborators of Hissène Habré, and visited Mr. Habrés prisons and mass graves together with former detainees. The judge also took copies of thousands of documents from the abandoned files of Hissène Habrés DDS, including daily lists of prisoners and of deaths in detention, interrogation reports, surveillance reports, and death certificates.
Belgium has two successful experiences in trying cases relating to the 1994 genocide in Rwanda. In 2001, four Rwandans, including two nuns, were convicted of taking part in the genocide. In 2005, two Rwandan businessmen were convicted of war crimes and murder during the genocide. Both trials were considered fair. The accused were represented by lawyers of their choice paid for by the Belgian government.
Although Belgium has a regrettable colonial past, it is important to note that Belgium played no role in the events of the Hissène Habré period in Chad and has no colonial relationship with Chad. Belgium would thus offer a politically neutral forum.
It is important to note that Mr. Habrés victimsChadians, Senegalese, as well as Belgiansstrongly favor his trial in Belgium.54
Belgium also offers the fastest possibility for a fair trial.
 Huge Challenge of Afghan Torture Case, BBC, July 18, 2005 [online], http://news.bbc.co.uk/1/hi/uk/4693787.stm.
 Human Rights Watch interview with Belgian prosecutor.
 Special Court for Sierra Leone Budget 2005-2006 [online], http://www.sc-sl.org/Documents/budget2005-2006.pdf.
 See Khmer Rouge Trial Task Force, Royal Government of Cambodia, Chronology of Developments Relating to the KR Trial [online], http://www.cambodia.gov.kh/krt/english/chrono.htm.
 In 1992, dozens of Habrés collaborators, forcibly returned to Chad by Nigeria, were tortured and killed. (See Amnesty International, "Tchad, le cauchemar continue," April 1993.) According to Hissène Habré himself, Extraditing someone to Débys Chad would simply be like signing his death warrant (extrader quelquun vers le Tchad de Déby, cela revient tout simplement á signer son arrêt de mort) (Hissène Habré, Un dictateur face á la justice," Jeune Afrique lIntelligent, February 15-21, 2000).
 Report of Mónica Pinto, Independent Expert on the Situation of Human Rights in Chad, 27 January 2005 (United Nations, 2005), E/CN.4/2005/121, para. 64. See also U.S. Department of State, Country Reports on Human Rights Practices: 2005, Released March 8, 2006, The judiciary was ineffective, underfunded, overburdened, vulnerable to acts of intimidation and violence, and subject to executive interference.
 Human Rights Watch, Chad: The Victims of Hissène Habré Still Awaiting Justice, A Human Rights Watch Report, vol. 17, no. 10(A), July 2005 [online], http://hrw.org/reports/2005/chad0705/index.htm.
 Human Rights Watch, Darfur Bleeds: Recent Cross-Border Violence in Chad, A Human Rights Watch Report, February 2006 [online], http://hrw.org/backgrounder/africa/chad0206/.
 Le Sénégal, conscient que la présence de M. Habré au Tchad pourrait y entraîner des conséquences graves qui ne permettraient pas lexercice dune justice sereine, avait écarté loption du renvoi.
 Senegals criminal procedure code gives its courts judicial competence over non-Senegalese for acts committed outside of Senegal only in cases of a crime or of an offence detrimental to state security, or of counterfeiting of the State Seal of the national currency in circulation ("dun crime ou dun délit attentatoire à la Sûreté de lEtat ou de contrefaçon du sceau de lEtat, de monnaie nationale ayant cours") (article 669).
 Such a modification would not be barred by the principle of non-retroactivity because at the time of their commission, Mr. Habrés alleged crimes were already proscribed by Senegal and international law. See article 15 of the International Covenant on Civil and Political Rights (Persons can be tried for acts or omissions that were criminal according to the general principles of law recognized by the community of nations under laws enacted after these acts or omissions).
 Atelier de validation de lavant projet de loi de mise en uvre du Statut de Rome, organized by the Senegalese Ministry of Justice in collaboration with the Organisation Nationale des Droits de lHomme (ONDH) and with the support of the Canadian Department of Foreign Affairs and International Trade, March 18-20, 2003.
 Walfadjiri (Senegal), February 24, 2003 (Monsieur Habré ne sera pas jugé au Sénégal parce que les faits ont été commis ailleurs et parce que les victimes se trouvent, elles aussi, ailleurs quau Sénégal. Je ne veux pas me retrouver avec un procès où les parties civiles et la défense produiront deux mille à trois mille témoins. Cela ridiculisera la justice sénégalaise ).
 President Wade made the following statement in the interview: At that time (when the victims brought a complaint against Habré in Dakar), I said I was against it. Hissène Habré cannot be judged properly in Dakar because the judge wanting to investigate the crimes or the acts that Hissène Habré is charged with, what can he do? He will not be able to leave his seat to go to Chad and the victims will bring one thousand witnesses and the other side will also bring one thousand witnesses. So the judges will find themselves then with hundreds and hundreds our thousands of witnesses without knowing exactly what ought to be done. Reasonably, he cannot be judged in Dakar which is why I completely agree with the judgment that was passed in Dakar. (Alors là, jai dit, je suis contre. Hissène Habré ne peut pas être bien jugé à Dakar parce que le juge de Dakar qui veut connaître des crimes ou des faits quon impute à Hissène Habré, quest-ce quil peut faire ? Il ne peut pas se déplacer pour aller au Tchad et les victimes vont amener 1000 témoins et lautre partie va aussi amener 1000 témoins. Alors les juges vont se trouver là entre des centaines et des centaines ou des milliers de témoins sans trop savoir ce quil y a à faire. Raisonnablement il ne peut pas être jugé à Dakar cest pourquoi je suis tout à fait daccord avec le jugement qui a été rendu à Dakar (Transcript of TV5 Interview, October 12, 2005).)
 There is precedent for such a deadline. In July 2005, the U.N.-mandated Commission of Experts that reviewed Indonesias and Timor-Lestes prosecution of serious crimes in Timor-Leste in 1999 recommended that Indonesia strengthen its legal capacity, that its Attorney Generals Office review its prosecutions and that some cases be reopened. If the recommendations are not implemented within six months from a date to be determined by the secretary-general, the commission recommended that the Security Council adopt a resolution to create an ad hoc criminal tribunal for Timor-Leste located in a third state (Summary of Report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999, (United Nations, 2005), S/2005/458 [online], http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/TL%20S2005458.pdf).
 See article 19 of the Protocol of the Court of Justice of the African Union: The Court shall have jurisdiction over all disputes and applications referred to it in accordance with the Act and this Protocol which relate to: (a) the interpretation and application of the Act; (b) the interpretation, application or validity of Union treaties and all subsidiary legal instruments adopted within the framework of the Union; (c) any question of international law; (d) all acts, decisions, regulations and directives of the organs of the Union; (e) all matters specifically provided for in any other agreements that States Parties may conclude among themselves or with the Union and which confer jurisdiction on the Court; (f) the existence of any fact which, if established, would constitute a breach of an obligation owed to a State Party or to the Union; (g) the nature or extent of the reparation to be made for the breach of an obligation.
 Plans for a new African Court that would combine these two courts are currently underway and would also create additional delays. At its Ordinary Session in Addis Ababa in July 2004, the African Union, in effect, decided to merge the two courts into a single jurisdiction.
 "Habré's victims have waited 15 years to find a court to hear our case, and many of the survivorsincluding two of my closest friends, who filed the case with me in Senegal six years agohave already died. Belgium is ready, willing and able to hear the case.... it has an independent judiciary willing to give usand Habréa fair trial. After 15 years, surely Senegal and the African Union must allow us to have our day in court. Souleymane Guengueng, (founder and vice-president of the Chadian Association of Victims of Crime and Political Repression), Send Habré to Belgium for Trial, International Herald Tribune, January 16, 2006." See also, Souleymane Guengueng "Il faut juger Hissène Habré," Jeune Afrique lIntelligent, January 22, 2006).