by Lauren Scott
On May 30, 2016 the Extraordinary African Chambers (“EAC”) issued a verdict in the Hissène Habré (“Habré”) trial. The significance of this verdict and of the trial itself will indeed be “extraordinary” for international justice. As a former head of State charged with war crimes, crimes against humanity and torture, Habré’s trial was the first time that international justice had played out on the African continent. Africa, long bemoaned as the opportunistic target of International Criminal Court (“ICC”) prosecutions, has firmly exercised its power in the realm of international criminal justice, setting a precedent for the continent. Most of the judges at the EAC were natives of Senegal, where the trial occurred, or hailed from neighboring African nations. A collaboration between the African Union and Senegal, this trial was unique and marks a new chapter not only in the history of international law, but the enforcement and legitimization of human rights in Africa.
Hissène Habré was the President of Chad from 1982-1990. Backed by the United States and France as a front against invading Libyan troops and Muammar Gaddafi’s influence, Habré came to power during a period of political upheaval. During his rule, Habré undertook a campaign of pervasive abuse against his own people, most notably “political assassination[s] and systematic torture.” It was Habré’s political police, or Documentation and Security Directorate (DDS) that committed the majority of these crimes, while under his direction or control. There are also accounts of rape, with at least one victim accusing Habré himself, in court, of having raped her four times.
Habré’s rule came to an end when his former political ally and current president, Idriss Déby Itno, overthrew his government in 1990. Following the coup, Habré fled to Senegal, where he has lived in exile up to the present day. Since assuming power, Déby’s own reputation concerning human rights has been less than exemplary. “An Amnesty International report in 2013 accused Mr. Deby of brutally repressing critics of his rule, and of ignoring promises to respect human rights when he came to power in 1990.” Also tarnishing his reputation is his involvement in the Habré regime as commander in chief during a period known as “Black September,” in 1984, “when a murderous wave of repression was unleashed to bring southern Chad back into the fold of central government.” While he at first resisted efforts to prosecute Habré, Déby later waived prosecutorial immunity for the former head of state and permitted the Chadian government to contribute heavily to the court’s funding.
For many reasons, Hissène Habré’s trial was unique. Following the coup which deposed him from power in 1990, Habré had been living in exile in Senegal. Under Senegal’s former President, Abdoulaye Wade, the Habré prosecution made little progress despite the determined actions on the part of his victims. For example, in 2000 Habré’s victims filed a complaint against him and a Senegalese judge indicted him, but the case faltered for the next 12 years. It took a new President and the right political climate to bring Habré to justice. In 2012, Macky Sall became Senegal’s President and quickly enforced an order that the International Court of Justice (“ICJ”) issued concerning Habré; it stated that Senegal needed to prosecute Habré or extradite him. Complying with the order, Senegal took up the mantel of prosecuting the Chadian former head of state, outside of his home country.
Monumentally, “[i]t was the first trial in the world in which the courts of one country prosecuted the former ruler of another for alleged human rights violations. It was also the first universal jurisdiction case to proceed to trial in Africa.” As far as universal jurisdiction is concerned, the concept appears to be unique to the international criminal law paradigm and offers an interesting question for state sovereignty. Further explained, universal jurisdiction is a doctrine that “allows national courts to try cases of the gravest crimes against humanity, even if these crimes are not committed in the national territory and even if they are committed by government leaders of other states.” Here, it is also important to stress the importance of the correct political climate in bringing about change. It was the zeal with which the Sall administration enforced the ICJ order and willingness of the Senegalese people to acknowledge the legitimacy of the court which allowed it to seek justice for Habré’s victims. Without those combined forces Habré’s existence without impunity in Senegal may have continued indefinitely. Political alacrity was indeed the force which tipped the scales of justice in the victim’s favor.
From its formation, the EAC has possessed “competence over the crimes of genocide, crimes against humanity, war crimes and torture as defined in its statute.” Similar to the crimes over which the ICC has jurisdiction, the EAC appears to go a step further, including torture as a crime of its own, not a sub-category of crimes against humanity as it is written in the Rome Statute. Article 7(1)(f) of the Rome Statute states “For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: . . . Torture:” Compressed into an article with the likes of “murder,” “extermination,” “enslavement,” and “deportation or forcible transfer of population” Article 7 of the Rome Statute does not strive to set apart torture from the other crimes which constitute “crimes against humanity.” At the EAC, the statute’s drafters took the bold step of prosecuting torture as a crime independent of the “crimes against humanity” designation and assigned it its own article. In addition to deciding that torture was worthy of its own article, the EAC gave a definitive guide as to when torture is appropriate: never. The last line of Article 8 of the EAC statute states “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” This is a strong stance on torture, as it often occurs during times of civil war, political insurgence or coup, and these examples are typically reasons advanced by national governments as to why torture is not only appropriate, but legal, in turbulent times.
The EAC also possessed jurisdiction over the crime of genocide, but it did not charge or indict Habré for this crime. This is surprising in light of the fact that “President Habré’s regime was marked by grave human rights violations and targeted violence against the Chadian population, notably against specific ethnic group including the Sara, the Hadjarai,
the Zaghawa and Chadian Arabs.” It is unknown why Habré wasn’t charged with genocide, considering the ethnic composition of some of his victims. The reason may lie in when these groups were targeted and for what reasons. “The [Habré] government periodically targeted civilian populations . . . killing and arresting [minority ethnic] group members en masse when the administration perceived that the groups’ leaders posed a threat to Habré’s rule.” The EAC article dealing specifically with genocide reads “For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such . . .”20 One can only posit possible reasons why Habré wasn’t charged with genocide. If it was not Habré’s “intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such,” and instead, he targeted these minority ethnic groups as a way or maintaining political control, the EAC may have “passed” on the issue of genocide. (emph. added) It could also be that because genocide is such a politically virulent term, prosecutors felt it was better to leave this charge to cases where genocide is overly apparent – with the Holocaust, Rwandan genocide or Srebrenica, as examples where the term is self-proving. Because genocide is such a politically loaded term, in the past, even foreign administrations located far from where the atrocities occurred have shied away from its use. For example, “[w]hen ethnic cleansing was under way in the Balkans, legal experts in the U.S. government were asked, in the words of a former State Department lawyer, ‘to perform legal gymnastics to avoid calling this genocide.’ And as Rwandan Hutu slaughtered hundreds of thousands of Tutsi, the Clinton administration instructed its spokespeople not to describe what was happening as genocide lest this ‘inflame public calls for action,’ according to the New York Times.” Either way, observers of the trial are left with questions as to why the EAC granted jurisdiction over the matter of genocide (presumably with intent to utilize the statute) but declined to prosecute under it.
The role of victims in the Habré trial proceedings was extraordinary, in terms of the number of participants and the volume of testimony. In addition, utilizing a mechanism unique to the civil law system, which the international criminal justice system adopted, the EAC allowed victims to participate as civil parties (partie civile). As a result, “[m]ore than 4,000 victims registered as civil parties.” Rights afforded to victims as civil parties are much more expansive than the role of victims in the common law system. When participating as civil parties, “victims have the opportunity of joining their civil claims to the criminal prosecution or of triggering criminal proceedings themselves . . .” However, “the participatory rights for civil parties are generally only available insofar as they pertain to a victim’s claim for damages against the accused.” The participation of large numbers of victims who engage in the trial as civil parties continues a trend seen in other recent international tribunals such as Extraordinary Chambers in the Courts of Cambodia (“ECCC”), the tribunal established to prosecute those most responsible for human rights abuses during the Khmer Rouge regime. At the ECCC, victims had the choice of participating as witnesses, victim-complainants or civil parties. If a victim at the ECCC chose to participate as a civil party they could not give testimony under oath, as witnesses were able to, with a resulting lesser weight being attached to civil party testimony concerning the accused’s guilt. At the EAC it is less clear to what degree participants were limited by their decision to become a civil party.
It is also not clear if the tripartite designation which existed at the ECCC was also present at the EAC, but we do know that the designation of “victim” at the EAC did not solely pertain to the person against whom the crime was committed. Investigative judges from the EAC acknowledged and utilized testimony from direct as well as indirect victims. “Direct” victims consist of those victims against whom the crimes were committed, while “indirect” victims typically constitute the families of the direct victims. However they participated in the trial, the international community took note at the fervency with which the victims pursued the case. Victims associations were especially active in this trial and the stories of individual victims and their protracted struggle to achieve justice highlight the importance of this trial for those who survived. A key proponent of victims’ justice, Souleymane Guengueng, himself a former Habré-era prisoner spent the better part of 25 years after his release gathering testimony from other victims. His work made him a target of the Habré administration and as a result he fled to the United States where he now lives in exile. However, his moment came in November of 2015 when Guengueng presented the “crude utensils” that he had carved in prison and relayed his story of unjust imprisonment and torture to the court. Satisfied that his quest had been fulfilled following his testimony to the court, Guengueng said “I feel relieved, I said everything I have been wanting to say.”
As the verdict in Habré’s trial was still pending it was difficult to know what impact this trial will have on international criminal law and the recognition of human rights in Africa. Of particular consideration is what this means for Chad and its future. With Déby in power – and his accompanying poor record of respecting human rights – what is the country transitioning to or away from? Chad held its own trials, convicting “20 Habré era security agents.” In the wake of these trials the Court ordered the Chadian government and those convicted to pay restitution to 7,000 victims. Urged on by the victims’ associations, the Court also ordered the creation of a museum in DDS headquarters and a monument to Habré’s victims. Unfortunately, “[o]ne year after the Court decision, the Chadian government has not implemented any of these compensatory measures.” Lastly, what does the Habré trial say for impartiality, considering that Chad agreed to finance the work of the EAC? President Déby could easily be on trial along with Habré, so what are the implications for what some can rightly regard as a politically motivated prosecution?
With prosecutions of this sort, we are once again confronted with the doctrines of nullum crimen sine lege and nullum poene sine lege, or, no crime without law (codification) and no punishment without law. A restriction against making something a crime that was not a crime when committed is a recurring theme in international criminal justice. How should we view the retroactive nature of these courts? Is the international community “Ok” with continuing to walk down the path of prosecuting crimes that did not have a court, did not have written law and did not specifically punish the crime when it was committed? Has the international criminal justice community tacitly agreed that the ends justify the means? If so, does this return us to the controversial question of whether prosecutions of this ilk are “Ok” for Africa, but not for the rest of the world and certainly not the West? Lastly, and as a somewhat tangential issue, what of the role of the colonizer, or if not a “colonizer” per se, militarily-powerful western intervener. Due to the financial support and influx of armaments from the United States and France, Habré rose to power at a time when the West sought to contain Muammar Gaddafi’s expansions across Northern and Western Africa. Should the nations that helped thrust Habré into power bear any of the burden for compensating victims? Is there any resentment amongst the Chadian people for this western support? Too often, the focus is on the perpetrator alone and not the coalescent forces that propelled them to power in the first place.
No one can deny that the symbolism of the Habré trial is immense for Senegal, Chad and for Africa as a whole. But what does this mean for the future of international criminal law in Africa? Is this, as many may hope, ushering in a new era of human rights work for future generations of Africans? Promise may lie in the fact that in the instance of the Habré trial, “complementarity” was achieved. The ICC did not have jurisdiction over this matter, but it is debatable whether, if it did, it would have prosecuted Habré itself. A main goal of the ICC is encouraging “complementarity,” meaning that the ICC will not step in to prosecute an individual where a domestic court is willing and capable of doing so. In this way the ICC gives preference to national courts to resolve disputes on their own soil. While a Senegalese court prosecuted Habré and not a court in his home country of a Chad, this can still be considered a “win” for domestic courts and for “complementarity.” Will we now see an increase in “complementarity?” Or is that what the ICC will fall back on when it does not possess jurisdiction due to the dates during which the crimes occurred? With the EAC’s broader and stronger codification of torture, how will this influence international criminal law as a discipline? Will this influence the permanent court (the ICC) in any way? Will genocide come to occupy the spot of a symbolic crime, existing in written law, but a charge which perpetrators are rarely convicted of? Perhaps some of these questions will be answered on May 30th, others many years later. What is known is that for the first time in international criminal law, African victims and African justices united to hold a former head of state accountable for his actions and inactions, and in doing so created a precedent.