The conviction of Hissène Habré by the Extraordinary African Chambers in the Senegalese Courts: Bringing justice in cases of serious human rights violations in Africa

Author: Juan Pablo Pérez-León-Acevedo
Vice-Chancellor Postdoctoral Fellow, Centre for Human Rights, Faculty of Law, University of Pretoria

Background

On 30 May 2016, the Extraordinary African Chambers in Senegal (EAC) found the former Chadian dictator Hissène Habré criminally responsible for crimes against humanity, war crimes and torture. The EAC condemned Hissène Habré to life in prison. The EAC indicated that the defence would have 15 days to appeal the conviction. Accordingly, the defence lawyers proceeded to appeal the conviction on 10 June 2016. During the trial that started on 20 July 2015 and ended on 11 February 2016, 96 witnesses, victims and experts participated, and 5600 transcript pages and over 56 exhibits were examined. The trial concerned crimes committed in Chad between 7 June 1982 and 1 December 1990, which corresponded to Habré’s rule. The EAC Trial Chamber convicted Habré, as a member of a joint criminal enterprise (involving, among others, directors of his political police aka the Direction de la documentation et de la sécurité (Documentation and Security Directorate (DSS)), of crimes against humanity of rape, sexual slavery, murder, summary execution, kidnapping followed by enforced disappearance, torture and inhumane acts committed against the Hadjerai and Zaghawa ethnic groups, the inhabitants of southern Chad and political opponents. As a member of a joint criminal enterprise, Habré was also convicted of torture. Additionally, the Chamber convicted Habré, under the modality of superior or command liability, of the war crimes of murder, torture, inhumane treatment and unlawful confinement committed against prisoners of war (international armed conflict), and of the war crimes of murder, torture and cruel treatment (non-international armed conflict). War crimes were examined, on the one hand, in the context of the non-international armed conflict between the Forces Armées Nationales du Tchad (National Armed Forces of Chad (FANT)) and the Gouvernment d’Union Nationale de Transition (Transitional Government of National Unity (GUNT)), and, on the other one, in the context of the international armed conflict between Libya, allied to the GUNT, and Chad supported by France and the United States. Nevertheless, the Chamber acquitted Habré of the war crime of unlawful transfer.

The following section presents and discusses some of the most outstanding legal points related to the conviction of Habré.

Importance of the conviction of Hissène Habré

The trial of Hissène Habré, in general, and his conviction, in particular, is an important and promising example of zero tolerance to impunity in Africa and also bring justice to victims of serious human rights violations constitutive of international crimes. The trial and the conviction arguably provide renewed hope for the capability of African regional and national mechanisms of criminal justice to deal with massive or systematic serious human rights abuses. This is particularly significant bearing in mind the international criminal justice landscape marked by the tense and even antagonistic relationship between the International Criminal Court (ICC) and the Africa Union (AU) in recent years. The following features make the case against and the conviction of Hissène Habré stand out in the criminalization of serious human rights abuses both in Africa and worldwide.

First, this trial was the first in the world at which domestic courts of one country found guilty a former Head of State of another country for serious human rights violations. Concerning international crimes perpetrated in Africa, the International Criminal Tribunal for Rwanda (ICTR) found former Rwandan Primer Minister Jean Kambanda guilty of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity (murder and extermination) to which he had pled guilty.

In turn, the Special Court for Sierra Leone (SCSL) convicted former Liberian President Charles Taylor of international crimes perpetrated in Sierra Leone. Thus, Taylor was convicted of war crimes of acts of terrorism, violence to life, health and physical or mental well-being of persons, particularly, murder, outrages upon personal dignity, violence to life, health and physical or mental well-being of persons, particularly, cruel treatment, and pillage. Taylor was also convicted of conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities as serious violations of international humanitarian law. Moreover, Taylor was convicted of the crimes against humanity of murder, rape, sexual slavery and any other former of sexual violence, other inhumane acts and enslavement. It should be remembered that Taylor was surrendered to the SCSL by Nigeria upon request by Ellen Johnson Sirleaf, the then newly elected President of Liberia in 2006. Taylor was condemned to 50 years in prison to be served in the United Kingdom.

Having said so, unlike the EAC’s conviction of Hissène Habré, the conviction of Jean Kambanda was rendered by a purely international criminal court, i.e., the ICTR, set up by the United Nations Security Council. In turn, although the SCSL falls into the category of hybrid criminal courts, unlike the EAC imbedded in a national judiciary, i.e., the Senegalese Courts, the SCSL was institutionally conceived, designed and structured as an autonomous international organization. National prosecution, trial and sanction of international crimes reinforce the principle according to which national criminal jurisdictions, either alone or with international institutional back-up, should be the first and main judicial fora. This precisely underlies the principle of complementarity that governs the relationship between the ICC and domestic criminal systems.

Second, the trial and conviction of Hissène Habré constituted the first example of universal jurisdiction in Africa, i.e., the prosecution and trial by national courts regardless of the place of commission of the crimes, nationality of the perpetrators or nationality of the victims. There have been some previous examples of trials and convictions of former Presidents concerning serious international crimes at the domestic level in Africa and elsewhere. For example, in 2008, the Ethiopian Supreme Court sentenced former Ethiopian dictator Mengistu Haile Mariam in abstentia to death on charges of genocide, homicide, illegal imprisonment, and illegal property seizure. This in abstentia conviction corresponded to Mengistu’s exile in Zimbabwe and this country’s refusal of extraditing him to Ethiopia. In turn, in 2009, the Peruvian Supreme Court found the former Peruvian President Alberto Fujimori guilty, as an indirect perpetrator in control of an apparatus of power, of aggravated murder, serious bodily injury, and serious kidnapping, constitutive of crimes against humanity perpetrated against civilians regarded as members of subversive groups. Fujimori is currently serving his 25-year imprisonment sentence in Lima, Peru. However, the case against and conviction of Hissène Habré differs from the convictions of Mengistu and Fujimori. Whereas the latter cases involved the exercise of national criminal jurisdiction based upon traditional jurisdictional links, the exercise of universal jurisdiction was put into motion only in the case against Hissène Habré.

Third, Hissène Habré is the first former Head of State of any country to be convicted of personally raping someone. When national and international cases involve former Presidents or Heads of States, these are normally accused and/or convicted of ordering, planning, or knowingly/recklessly neglecting the widespread and/or systematic human rights violations, sexual and gender crimes included, committed by their subordinates. For example, the ICC Trial Chamber III found Jean-Pierre Bemba Gombo, a former Vice-President of the Democratic Republic of Congo, guilty under the modality of military commander as he knowingly failed to prevent and sanction (or submit the matter to the competent authorities) inter alia war crimes and crimes against humanity of rape committed by his subordinates. Thus, these crimes were a consequence of Bemba’s failure to exercise control properly. For these, among other crimes, he was recently sentenced to 18 years of imprisonment. Thus, unlike Habré, it is not common that the most senior defendants be convicted by having personally committed sexual and gender crimes.

Fourth, the conviction, which finalized the trial of Hissène Habré, was rendered by the first internationalized criminal court set up with the involvement of the AU. This took place in a context where the ICC could not exercise its jurisdiction as the crimes in question had been committed prior to the entry into force of the ICC Statute (1 July 2002) and, specifically, prior to the entry into force of the ICC Statute for Chad and Senegal, which respectively occurred on 1 January 2007 and 1 July 2002. The hybrid nature of the EAC corresponds to its creation inside the existing Senegalese court structure and its applicable law consisting in its Statute—international criminal law—and the Senegalese Code of Criminal Procedure. Prior to the EAC, hybrid courts had been mainly established via agreements between the United Nations and a particular country. For example, the above-mentioned SCSL which inter alia convicted the former Liberian President Charles Taylor of international crimes perpetrated in Sierra Leone.

Fifth, as criminal case-based reparations against the accused are conditioned to the conviction of the defendant, victims who were registered as civil parties—over 4000—may receive reparations ordered by the Chambers against Habré. This will become a certainty if the conviction of Habré is confirmed on appeals. Those reparations can be paid into a victims’ fund which may also receive voluntary contributions by other States, international institutions as well as NGOs. However, the EAC Trial Chamber did not order the confiscation of Habré’s seized property. This should be criticized as that property could have potentially been used to contribute towards financing reparations for victims of the crimes for which Habré was convicted. In any event, the Chamber paid close attention to, inter alia, the gravity of the crimes, the large number of victims who still suffer the harm caused by the crimes committed by Habré as well as the targeting of vulnerable victims as aggravating circumstances. These circumstances certainly influenced the sentence of Habré to life in prison. Provision of meaningful reparations to victims will add an important quota of restorative justice.

Final thoughts

The conviction of Hissène Habré is a remarkable example of internationally backed-up domestic efforts in Africa to punish those who committed multiple and prolonged atrocities against their own people. In the case against Habré, victims who have waited in some cases over thirty years have finally been able to receive justice. This must be complemented with appropriate redress of their harm suffered. As an implementation of the general principle of universal jurisdiction, the trial and conviction of Habré demonstrates that investigation, prosecution, trial and punishment of crimes against humanity, war crimes and torture are part and parcel of a common responsibility and an obligation shared by each and every state member of the international community. The most serious offences not only shock the conscience of the communities and societies where those atrocities take place but also demand some reaction from other states.

The conviction and trial of Habré brings hope regarding the combined efforts of the AU and African domestic criminal systems with regards to the prosecution of those most responsible for serious human rights violations. Having said so, attention should be drawn to the next steps to be adopted by the AU and its states members concerning the ICC. With regard to the envisioned International Criminal Law Section of the future African Court of Justice and Human Rights, the so-called Protocol of Malabo (not yet in force) is especially controversial as this instrument grants immunity to sitting Heads of States and other senior state agents from international and regional criminal prosecution for international crimes. Bearing in mind that this provision was adopted amidst the AU’s backlash against the ICC’s cases against sitting Sudanese President Omar Al Bashir, Kenyan President and Vice-President Uhuru Kenyatta and William Ruto respectively (cases now closed), and former Ivorian President Laurent Gbagbo, the legitimacy of the Protocol can be contested.

In the end, international, regional and domestic initiatives and transitional justice mechanisms should complement each other to prosecute and try the most senior perpetrators of international crimes. Regional and national justice efforts dealing with international crimes in Africa are completely legitimate and necessary provided that they are truly committed to the fight against impunity and are not politically—or otherwise—manipulated. This can be achieved in Africa as the conviction of Hissène Habré clearly shows.

About the Author:

Dr. Juan Pablo Pérez-León-Acevedo (PhD Åbo Akademi University-Finland, LLM Columbia University, LLB Catholic University of Peru) is a Vice-Chancellor Postdoctoral Researcher at the Centre for Human Rights, Faculty of Law of the University of Pretoria (South Africa). He has served in diverse capacities at, among others, the International Criminal Court, International Criminal Tribunal for the Former Yugoslavia, United Nations, and Åbo Akademi University.