The Trial and Conviction of former Chadian President before the Extraordinary African Chamber for International Crimes By Anemuyem Akpan

Introduction
The date 30 May 2016 is now etched in history as the most important day in the pursuit of criminal justice in Africa. It is the date that brought to a dramatic close, a sixteen (some say twenty-six) year battle for justice for victims of one of the most heinous state orchestrated crimes on the African continent.

It is the day the first African established ad hoc international criminal court found former Chadian dictator, Hissene Habre guilty of various international crimes and sentenced him to life in prison. The conviction of Habre, who was accused of being responsible for the deaths of over 40,000 people, can be rightly identified as the defining moment for an Afrocentric understanding of international criminal justice.

This historic trial offers unique a solution to the continued shaky relationship of mistrust between the African Union and the International Criminal Court. The benefits of this trial must not be allowed to go to waste. Rather, it should be harnessed towards the establishment of a permanent African Criminal Court.

Background on Hissene Habre: A Peep into a Mad Man’s Slaughter House
Hissene Habre, popularly known as the “desert fox” came to power in Chad when he overthrew the government of his Goukouni Wedeye in 1982. Habre was immediately welcomed by the West, particularly the United States and France. These States saw Habre as a bulwark against Muamar Gaddafi’s dream of regional hegemony. Throughout his eight year rule, the United States and France provided Habre with military, logistical and financial aid and ensured that he survived several attempts to remove him.
However, despite his successes at checking Gadaffi’s designs on Chad, Habre’s regime was marked by widespread atrocities on an unprecedented and unimaginable scale.

According to the decision of the International Court of Justice (hereinafter the ICJ) in the case of Questions Relating to the Obligation to the Obligation toProsecute or Extradite (Belgium v. Portugal), the reign of Habre witnessed “large scale violations of human rights, including arrest of actual and presumed political opponents, detention without trial or under inhumane conditions, mistreatment, torture, extrajudicial executions and enforced disappearances”.

Habre oversaw a regime that paid no attention to respect for human rights. Suspicion was enough ground to warrant death without trial or indefinite torture during incarceration. His atrocities extended to accommodate a state-run ethnic cleansing mechanism throughout the country such as the Sara (1984), Hadjerai (1987) and the Zaghawa (1989). To help him consolidate his grip on power, Habre established the Documentation and Security Directorate (DDS) which acted as his political police.

Torture and other despicable cruel treatment were rife in DDS detention centers. One of such despicable forms of torture was the arbatachar, in which a prisoner’s four limbs were tied together behind his or her back, leading to loss of circulation and paralysis. The terror of the Habre days extended to enforced disappearances, rampant rape and enslavement.
By the time Hissene Habre was eventually overthrown in 1990, more than 40,000 people had been killed and 200,000 were subjected to various forms of torture.

Upon his overthrow, Habre first fled to Cameroon, before settling down in Senegal.

Long Road to Justice: the Intrigues of a Political and Legal Soap Opera
The trial of Hissene Habre perhaps holds the record as the longest pursuit of justice on the African continent. It took a record of 10 years before Habre was charged before a court of competent jurisdiction. From his first appearance in 2000, it took another record of 16 years before his eventual conviction.

Ironically, it was the decision of an English court in a case involving former Chilean despot, Augusto Pinochet ( whom Habre had been nicknamed after ) that set in motion the series of event that brought Habre to justice. In the case of R v. Bow Street Magistrate Ex p Pinochet, Spain had requested the extradition of Pinochet from the United Kingdom to faces charges, inter alia, of torture and conspiracy to commit torture. The Privy Council held that “The jus cogens nature of the international crime of torture justifies States in taking universal jurisdiction over torture wherever committed”. The Council further noted that Pinochet in his capacity as former head of State was not entitled to immunity from prosecution as the “the implementation of torture as defined by the torture convention cannot be a State function”.

Buoyed by the decision of the English Court in the Pinochet Case, Chadian victims of Habre’s reign of terror nurtured the hope of a replication and application of the Pinochet standard to Habre. The victims operating under the aegis of the Chadian Association of Victims of Political Repression and Crime (hereinafter the AVPRC) filed a complaint against Habre in Senegal. The complaint with a civil-party application accused Habre of torture, barbarous acts and crimes against humanity. The charges against Habre were principally based on the UN Convention against Torture and other Cruel, Inhuman Treatment or Punishment [hereinafter the Torture Convention] which had been ratified by both Chad and Senegal.

On 3 February 2000, the investigating judge ordered Habre to appear before him and indicted him for having “aided or abetted … in the commission of crimes against humanity and acts of torture and barbarity”. Habre was further placed under house arrest. The indictment and arrest of Habre raised a political and legal storm that came to rage for more than 15 years.
Habre fought back on 18 February by filing an application with the Chambre d` accusation of Dakar’s Court of Appeal to dismiss the application against him. Habre in his application argued inter alia that the Senegalese Courts had no jurisdiction to try him. The appellate Court ruled in Habre’s favour, holding that the lower court lacked jurisdiction as the alleged crimes were committed outside the territory of Senegal and by a foreign national.

The victims appealed to the Cours de Cassation, which serves as Senegal’s Supreme Court. The apex Court upheld the decision dismissing the case against Habre, noting that Habre could not stand trials in Senegal for crimes allegedly committed elsewhere. The court further opined that Senegalese Courts had no jurisdiction to try a case of alleged torture as Senegal had not incorporated the provisions of the Torture Convention into its code of criminal procedure.

Determined and unfazed, the victims led by persons of dual Belgian Chadian nationality filed a complaint with civil-party application in Belgium. The complaint effectively accused Habre of serious violations of international humanitarian law, crimes of torture and the crime of genocide.

After four years of diligent investigation, Judge Daniel Fransen of the Brussels District Court issued an international warrant for the arrest of Habre to face charges of serious violations of international humanitarian law, torture, genocide, crimes against humanity and war crimes. Upon transmission of the arrest warrant to the Senegalese authorities, Belgium requested for Habre’s immediate extradition.
The victory of the victims at Brussels was short-lived. The Chambre d` accusation of the Dakar Court of Appeal in its ruling on the extradition request held that it had no jurisdiction to adjudicate on matters relating to the investigation or prosecution of Mr Habre for acts allegedly committed in the exercise of his official functions. The Court further held that Habre was imbued with jurisdictional immunity which survived the cessation of his duties president of Chad.

The authorities in Dakar having refused to extradite Habre to Belgium referred the matter to the African Union for direction. The AU in turn established the Committee of Eminent African Jurist on the Case of Hissene Habre (hereinafter the CEAJHH) with the mandate to submit a report to the union on the matter.

While the CEAJHH retired to deliberate, the United Nations Committee on Torture on the application of several victims ruled that Senegal had violated the Torture Convention. This violation according to the Committee was on account of the failure of Senegal to prosecute or extradite Mr Habre as stipulated by article 7 of the Torture Convention. The committee called on Senegal to “submit the case to its competent authorities for the purpose of prosecution or in the alternative, since Belgium had made a request for extradition, to comply with the request.

The prevarication of the Senegalese government was dealt a final blow in 2006 when the African Union Assembly of Heads of States acting on the report of the CEAJHH “mandated the Republic of Senegal to prosecute and ensure that Hissene Habre is tried, on behalf of Africa, by a competent Senegalese Court with guarantees for fair trial”.

Bowing to international pressure, Senegal implemented legislative reforms in order establish the necessary legal foundation to prosecute Habre. These reforms included an amendment of its penal code and its code of criminal procedure to proscribe the crimes of torture, genocide, and crimes against humanity, war crimes and other serious violations of international humanitarian law.

Senegal further amended its Constitution to provide an exception to the principle of non-retroactivity of its criminal law. The amended paragraph provided that “ nothing shall prejudice the prosecution, trial and punishment of any person for any act or omission which at the time when it was committed was defined as criminal under the rules of international law concerning acts of genocide, crimes against humanity and war crimes”.

The needed reforms having been secured, 14 victims filed a complaint with the public prosecutor of the Dakar Court of Appeal in 2008. The complaint accused Habre of torture and crimes against humanity. Mr Habre challenged the charges by filing an application at the Court of Justice of the Economic Community of West Africa (hereinafter ECOWAS Court). Habre prayed the ECOWAS Court to rule that his human rights would be violated by Senegal if proceedings were initiated or sustained against him.

The ECOWAS Court delivering judgment in Habre v. Republic of Senegal held that the constitutional and criminal procedure reforms undertaken by Senegal would violate Habre’s human right if proceedings were sustained against him on the strength of the said reforms. The ECOWAS Court reasoned that such proceedings would be in violation of article 7(2) of the African Charter on Human and Peoples Right, article 8 of the Universal Declaration of Human Rights and article 3(4) of the International Covenant on Civil and Political Rights.
The ECOWAS Court ordered Senegal to comply with the international law principle non-retroactivity of criminal legislations and terminate proceedings against Habre. The Court further stated that the AU mandate to Senegal was for the prosecution and trial of Habre within the strict framework ad hoc international tribunal.

Fed up by the refusal to extradite Habre after repeated request, Belgium dragged Senegal before the International Court of Justice (hereinafter the ICJ) to determine the issue of Senegal’s obligation to prosecute or extradite Habre. The ICJ ruled that the “ The Republic of Senegal by failing to make immediately a preliminary inquiry into facts relating to the crimes allegedly committed by Mr Habre has breached its obligation under article 6 paragraph 2 “ of the Torture Convention. The World Court further held that by failing to submit the case of Mr Habre to its competent authorities for the purpose of prosecution, Senegal had breached its obligation under Article 7 Para 1 of the Torture Convention. The ICJ unanimously ordered Senegal to submit Habre’s case to its competent authorities for the purpose of prosecution, if it does not extradite him.

The judicial soap opera with its attendant negative ratings on the principal characters climaxed in with the establishment of an ad hoc international criminal court. In 2013, the African Union and Senegal signed an agreement establishing the Extraordinary African Chambers within the Senegalese Judicial System (hereinafter the ECA). The ECA was established with the mandate to prosecute international crimes committed on the territory of the Republic of Chad during the period of Habre’s presidency.

The Legal Regime of the Extraordinary African Chambers
The Statute of the ECA and the Additional Agreement relating to the Statute formed the legal regime for the prosecution of Hissene Habre. The ECA by article 3 of its Statute had jurisdiction to prosecute and try the persons most responsible for crimes and serious violations of international law, customary international law and international conventions ratified by Chad during the presidency of Mr Habre.
With respect to crimes, article 4 of the Statute of the ECA provides that the ECA shall have jurisdiction to prosecute
a. the crimes of genocide;
b. Crimes against humanity;
c. War crimes;
d. Torture;
Article 8 of the Statute of the ECA incorporated article 1 of the Torture Convention in offering a statutory definition of torture. According to article 8 of the ECA, “the term ‘torture’ shall encompass any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or the instigation of or with the consent or acquiescence of a public official or other person acting in official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanction”.

Article 8 of the ECA improved on the definition of torture by providing that “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 justification for torture”. The Statute of the ECA in article 9 exempted the application of any statutory limitation to crimes within the jurisdiction of the ECA.
The ECA reflected the position of customary international law in many aspects. It took inspiration from previous international criminal tribunals, including the International Military Tribunal (Nuremberg), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court.

Article 10(3) which anticipated the plea of immunity provided that; “The official position of an accused, whether as head of state or government or a high ranking government official shall not relieve him or her of criminal responsibility,… nor shall it in and of itself constitute a ground for reduction of sentence”. Article 10(4) provided for the criminal responsibility of a commander or superior for acts committed by his or her subordinates while paragraph (5) of the same article rejected the defence of superior orders.
Article 20 of the Statute of the ECA stated that any regime of amnesty granted to any person within the jurisdiction of the ECA in respect of crimes referred to in its Statute shall not act as a bar to prosecution.

In line with the mandate of the African Union which called for a fair trial, article 21 of the Statute of the ECA provided for a number of rights and safeguards for the benefit of Habre. These included
• The right to be present during his trial
• Presumption of innocence
• The right to a public hearing
• Right to counsel and legal assistance
• The right to be tried with undue delay
• Right to examine and call witnesses
• Right to adequate time and facilities for preparation of defence
• Equality before the chambers
• Right to protection against self-incrimination

The Proceedings against Hissene Habre at the ECA
Habre was initially indicted on 2 July 2013 for crimes against humanity, torture and war crimes by the investigating Judges of the ECA who ordered that he should be placed in pre-trial detention.
What followed next was a 19-month thorough investigation by the Chamber. The Judges of the ECA relied on evidence collected after Habre’s overthrow. The Judges also had access to the file prepared Belgian authorities in the run up to their request for his extradition.

The investigating judges also embarked on four missions ( commissions rogatoires) to Chad between 2013 and 2014. During these missions, the judges obtained statements from 2500 and key witnesses, including former officials in Habre’s government.
The Judges were greatly aided by a dossier of DDS files that were recovered in 2001 by the Human Rights Watch. The files contained extensive list of prisoners, interrogation reports and death certificates of prisoners. These files revealed direct communication between Hissene and DDS directors and agents.
Upon completion of its investigation and furnished with sufficient evidence, the Judges of the ECA on February 2015 specifically charged Habre with;
a. The practice of murder, summary execution and kidnapping followed by enforced disappearance and torture, amounting to crimes against humanity, against the Hadjerai and the Zaghawa ethnic groups, the people of Southern Chad and political opponents.

b. The war crimes of murder, torture, unlawful transfer and unlawful confinement, violence to life and physical well-being.

The charges were brought against Habre on the basis of his membership of a “joint criminal enterprise” and his command responsibility.
Habre refused to recognize the authority of the ECA and instructed his lawyers to boycott the proceedings. The ECA appointed three Senegalese lawyers to defend Habre and adjourned proceedings for more than a month to enable them prepare his defence.
On the first day of his appearance after the adjournment, Habre was brought into the Chambers by force, screaming, kicking and disrupting proceedings. Habre equally refused to cooperate with his court-appointed lawyers, opting instead to remain silent, even when questioned by the prosecution.

The case against Habre lasted for 56 days. 93 witnesses, mostly victims testified during the trial. The trial Chambers also heard the testimonies of the Belgian Judge who previously indicted Habre and also carried out a four year investigation into the period of his presidency, the President of the 1992 Chadian Truth Commission, a French doctor who treated 581 tortured victims, four members of the DDS and forensic, statistical and hand-writing experts.

Habre’s Court-appointed lawyers, handicapped by his lack of cooperation lamely argued that Habre was not involved in the commission of the alleged crimes. They argued that the charges against Habre were part of a larger media and political campaign against him whom they argued was a patriot, committed to defending Chad against Libyan aggression and secessionist rebel.
At the close of the prosecution’s case, the Chief Prosecutor Mbacke Fall urged the Chamber to sentence Habre to life in prison. The prosecutor also requested the seizure of Habre’s properties.

After the closing statement by the defence on 11 February 2016, the Court adjourned the case for more than two months.
On 30 May 2016, the trial Chamber resumed sitting and in a historic moment the President of the trial Chamber Gberdao Gustave Kam addressed the accused thus; “Hissene Habre, this Court finds you guilty of crimes against humanity, rape, and forced slavery and kidnapping as well as war crimes”.

The guilt of the accused according to the Chamber was determined by Habre’s membership of a joint criminal enterprise and on the strength of the doctrine of command responsibility.

The Chamber further granted the prayer of the prosecution and sentenced Habre to life in prison with the right of appeal to be exercised within 15 days from the date of the judgment. As at the time of writing this article, Habre had lodged an appeal at the Appeal Chamber of the ECA.

Sporadic positive reactions trailed the decision of the Chamber. The African Union which played an influential role in the lead to the trial, expressed appreciation to the President, Government and the people of Senegal for accepting to host the trial. The AU further stated that the judgment “comes at a time when the AU is actively fighting impunity and promoting accountability for egregious wrongs”. According to the AU Chairperson, Dr Dlamini Zuma, the judgment in the Habre case is “significant, in that, it reinforces the AU’s principle of African solutions to African problems”.

The United States of America through its Secretary of the Department of State Mr John Kerry welcomed the judgment. The USA government stated that the “ruling is a landmark in the global fight against impunity for atrocities, including war crimes and crimes against humanity”.

The United States while commending the fair and balanced trial of Hissene Habre advised that the trial and conviction of Habre should serve as a “message to other perpetrators of mass atrocities, even those at the highest levels and including former heads of states that such actions will not be tolerated and they will be brought to justice”.

Conclusion
The pursuit to bring Habre to justice lasted a record of 16 years. The long but unwarranted journey reveals structural inadequacies of criminal justice system within continental Africa regime.
At the end, it was not the lukewarm commitment of African leaders but the resilience of the Belgian authorities and the tenacity of the victims that ensured that Habre will be spending the remainder of his life behind bars.
The conviction of Habre speaks to the past as well as the future. It comforts the victims by bringing to light the dark atrocities of the past. It also sounds a warning to present day African leaders who continue to be trapped in the self-induced illusion of absolute immunity and criminal omnipotence that : while it may take two decades or more, the long arm of justice is strong, patient and unforgiving.

By Anemuyem Akpan
Anemuyem is Convener of Nigerian League of International Lawyers
He can be reached on 08063624048 & anemaloy@gmail.com