The trial of Hissène Habré at the Extraordinary African Chambers in Senegal

Hissène Habré was President of the Republic of Chad from 1982 to 1990. In 2015, he was tried for international crimes in Dakar by the Extraordinary African Chambers (EAC), a special court created by Senegal and the African Union. This is the first time that an African head of state has been brought to justice in another African country, and the first time that an African court has operated under the principle of universal jurisdiction, a principle recognised in international law.

On 7 June 1982 Hissène Habré took power by ousting the allied forces of former Chadian President Goukouni Oueddei and Libyan leader Colonel Muammar Qaddafi. After a decade leading rebel forces in a protracted civil war from the remote north, Habré finally emerged as victor in the capital of N’Djamena thanks to millions of dollars in military support from the United States.1 

Widespread human rights violations characterised Habré’s rule. His regime is alleged to have ordered the extra-judicial execution of thousands of political and military opponents, and his security forces tortured thousands of detainees.2He also ordered multiple ethnic cleansing campaigns, notably in 1987 against the Hadjeraï, in 1989 against the Zaghawas, and during the ‘Septembre Noir” massacres in 1984. 

Despite widespread outcry among human rights groups over these crimes, Habré remained in power throughout the 1980s, due in part to his central importance to US efforts to undermine Colonel Qaddafi.3 The full extent of the crimes committed under his command remains unknown. In his security headquarters alone, investigators uncovered documentation relating to 12,321 instances of gross human rights violations, much of it directly implicating Habré. The Chadian Truth Commission estimated that at least 40,000 people were killed by the regime. 

In November 1990, Habré lost power to a rebel group led by his former chief military advisor, Idriss Déby. The deposed president went into exile in Dakar, bringing with him an estimated 3.32 billion CFA (6.62 million US dollars) pilfered from his country’s coffers. The following morning, hundreds of prisoners were freed from Chadian detention centres, including former accountant Souleymane Guengueng. In the years immediately after Habré’s overthrow, Guengueng collected 792 testimonies from fellow prison survivors. These documents would serve as the first piece in a twenty-three year campaign to bring Habré to trial, a goal finally achieved through the creation of the Extraordinary African Chambers (EAC) in Senegal.

Citations & References

1: Michael Bronner (2014) “Our Man in Africa”, Foreign Policy.

2: Human Rights Watch (2011) “The Plain of the Dead: Account of Habré repression based on victim’s testimonies” 

3: Bonner 2014. 

Commentary & Reports

Human Rights Watch “The Plain of the Dead: Account of Habré repression based on victims’ testimonies” (2011)

This report provides detailed summaries of extensive investigations conducted by Human Rights Watch into the grave human rights violations ordered by Habré. The document was compiled for the use of the prosecutor of the Extraordinary African Chambers (EAC).

Michael Bronner “Our Man in Africa”  (Foreign Policy: 2014) 

This article gives a detailed overview of Habré’s rise to power through US military support, as well as the early years of the national civil society and Human Rights Watch campaign to bring him to justice.  

Human Rights Watch “Q&A: The Case of Hissene Habre before the Extraordinary Africa Court in Senegal” (2016) 

In the weeks before the Extraordinary African Chambers (EAC) delivered their verdict in the Habré case, HRW released this question-and-answer document, providing detailed explanations of key facts of the case, explaining how the court was established, and addressing controversies surrounding the case.  

Accountability for Hissène Habré

The prosecution of the former President of Chad by the Extraordinary African Chambers

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Challenges and priorities for domestic accountability in Chad and a hybrid solution in Senegal

In 2015, Hissène Habré was tried in Dakar by the Extraordinary African Chambers (EAC) in Senegalese courts, for international crimes committed in Chad. How was this hybrid solution implemented?

A domestic trial in Chad was ruled out by Senegalese and African Union (AU) authorities as a viable option for bringing Habré to justice. The Chadian government did not request his extradition, and had it done so, the request might have been rejected on the grounds that Habré would not receive a fair trial in Chad. A domestic trial could also have put victims, witnesses and judicial actors at risk.  During the years of campaigning that preceded the EAC, Chadian victims’ groups and investigators involved in collecting evidence and statements faced threats and attack.4 Habré still had supporters in Chad, and the country’s political and economic elite included influential former officials of the dictator’s regime, many with an interest in keeping details of the past hidden. 

In the absence of a domestic option, the EAC was a wholly African solution. A former African Head of State responsible for international crimes was brought to trial in an African judiciary, facing predominantly African magistrates, and supported by the AU, in a court designed in line with the ruling of the ECOWAS Court.5  

The Extraordinary African Chambers took the form of an internationalised court located within the domestic court system of Senegal. Under the terms of an agreement between Senegal and the African Union, the EAC was established as a hybrid court empowered to apply international customary law in order to prosecute offences committed during a period before international crimes were incorporated into Senegalese legislation. Under the principle of universal jurisdiction, the court was empowered to prosecute crimes committed outside its borders by and against non-nationals. Habré rejected the jurisdiction of the court and, though forced to attend, never spoke a word during the proceedings. The former president was represented by court-appointed Senegalese lawyers after his own counsel refused to appear in court.

The EAC originally intended to prosecute other high-level officials from Habré’s regime. In 2013, the chief prosecutor requested that five additional senior officials be indicted for their alleged role in international crimes but Chad refused to transfer the accused men.6 In March 2015, just months before Habré’s trial began at the EAC, a Chadian court convicted 20 senior security agents from Habré regime of torture, murder and other related crimes. Four others were acquitted. The court further ordered that US$125million be paid in reparations to 7,000 victims, half to be funded by the assets of those convicted and half by the state.  

Citations & References

4: Ibid.

5: Marie Gibert (2016) “The Habré trial: a triumph for victims and civil society”, South African Institute of International Affairs.

6: Human Rights Watch (2014) “Senegal: Chad’s Inaction Won’t Prevent Habré Trials”.

Establishing a legal framework for prosecuting international crimes 

In 2012, twelve years after a coalition of Chadian victims had filed a complaint against Habré in a Senegalese court, Senegal faced conflicting international obligations when attempting to bring the Chadian dictator to trial. Upon taking office in 2012, Senegal’s President Macky Sall committed to ensuring that Habré faced prosecution. These efforts were frustrated, however, by an ECOWAS Court decision which ruled that Senegal lacked jurisdiction to try international crimes. Though legal scholars both then and now contest the decision, ECOWAS judges ruled that only an international court could try the former Head of State (see ‘Hybrid Courts’ in the Accountability section for further details). 

Faced with this impasse, Senegal requested that the African Union determine the best way to proceed. In its deliberations, the AU sought an option which would give a new tribunal jurisdiction to prosecute international crimes in line with international fair trial standards, allow Chadians access to the proceedings, and be both efficient and affordable. The EAC were created to address all these criteria. Domestic judges and officials were preeminent in the trial process, with international judges serving alongside Senegalese magistrates in the Trial Chamber and Appeals Chamber. 

Among the court’s unique features, the Statute of the Extraordinary African Chambers specifically listed the crime of torture in addition to the three core international crimes, namely, genocide, war crimes and crimes against humanity. The EAC offered a unique and powerful combination of victim participation with judicial ‘serenity’, by being situated in the African region, yet still distant enough from the national context to ensure the security of witnesses and court officials.7 

Citations & References

7: Gibert 2016.

Commentary & Reports

Open Society Justice Initiative “Senegal Extraordinary African Chambers” in Options for Justice: A Handbook for Designing Accountability Mechanisms for Grave Crimes (2018) 

This handbook section provides an overview of the EAC and explains the source of its jurisdiction. It further discusses the unique features of the court, as the first tribunal of its kind to prosecute an African Head of State on the African continent.. 

Sharon Weill, Kim Thuy Seelinger and Kerstin Bree Carlson “The President on Trial: Prosecuting Hissène Habré” (Oxford University Press: 2020) 

This book offers a detailed history and analysis of the EAC and its impact, particularly looking at how the Habré trial has shaped international criminal justice. The book is based on first-person accounts by actors directly involved in the EAC, combined with analysis by field experts. 

Marie Gibert “The Habré trial: a triumph for victims and civil society” (South African Institute of International Affairs: 2016)  

Chadian victims’ associations “knocked on all doors” during the long process leading to the trial of Hissène Habré. This piece highlights the importance of a multi-faceted approach to seeking international criminal justice, as a major lesson learnt from the Habré trial.  

Outreach

The EAC, a victim-driven court, is notable for the significant steps taken to engage the victim communities as well as society, in Senegal and Chad alike. An NGO Outreach Consortium, contracted by the court’s administrator, actively built community-level networks in Chad, Senegal and Belgium. Through those networks, the consortium organised events and screenings of the trial, both at a community level in Chad and Senegal, and for global viewers online. Years of frustrated efforts to achieve justice meant that many victims and members of the wider Chadian population initially felt suspicious of the court.8 

The NGO consortium helped ensure that credible information about the trial reached those still sceptical of the process, and brought feedback from the community level back to court officials. The outreach consortium is credited with ensuring that the first inter-African tribunal was not only understood by but also engaged the communities and individuals most affected by Habré’s crimes. 

The tribunal delegated the task of outreach to the consortium, whose members had specific expertise in the area and were considered credible by communities at the local level.9 As an important lesson from the EAC’s remarkable achievement in this area, the court included citizen’s engagement as a priority from the outset. Of particular note, the EAC was the first internationalised court to include outreach activities in its budget and make outreach an official part of its design.10 

Play Video

International Criminal Justice in West Africa

Roland Adjovi, International Law Advisor for the Global Maritime Crime Programme in West Africa at UNODC, analyses the interplay between national, regional and international judicial mechanisms and their application in West Africa. He also discusses various legal instruments, tools and mechanisms, such as the Malabo Protocol, the African Court on Human and Peoples’ Rights, the International Criminal Court and hybrid courts.

Citations & References

8: Frank Petit (2017) “Outreach in the Hissène Habré trial was an exercise in winning hearts and minds”, Justice Hub

9: Ibid.

10: Open Society Justice Initiative (2018) “Senegal Extraordinary African Chambers” in Options for Justice: A Handbook for Designing Accountability Mechanisms for Grave Crimes

 

Commentary & Reports

Franck Petit “An Extraordinary Experience: Outreach for the EAC” in The President on Trial: Prosecuting Hissene Habré (Oxford University Press: 2020)

This article examines the innovative approach of the EAC to include outreach as a core part of the court operations

Frank Petit “Outreach in the Hissène Habré trial was an exercise in winning hearts and minds” (Justice Hub: 2017) 

In this interview, Frank Petit, former team leader of the EAC’s Outreach Consortium, discusses the consortium’s communication strategy and gives details on how the group coordinated across Chad, Senegal and Belgium. 

Jeanne Elone The Extraordinary African Chambers: A New Approach to Victim Participation in International Criminal Tribunals (International Justice Monitor: 2015) 

Anchoring the EAC in the civil law system created the opportunity for its ground-breaking approach to participation by victims, both as civil parties bringing the case to trial, and through their participation in proceedings.  

Prosecuting sexual violence 

The original charges against Habré did not include any mention of sexual violence. Once the trial began, some of the most significant moments in the proceedings involved the testimony of women who claimed that they had been raped and held as sex slaves by Habré’s security forces and by the former president himself. Four women gave testimony about their time in detention at Ouadi Doum military base in 1988, describing repeated sexual assaults. In a powerful statement, Khadidja Zidane confronted Habré, who sat in the courtroom, for raping her when she was held in detention. 

The initial omission of sexual violence from the charges against Habré drew heavy criticism from civil society and victims’ groups, resulting in a requalification of charges to include rape and sexual assault. EAC officials had not prioritised sexual violence during their investigations, and the women who came forward did not receive any specialised support: indeed, those who took the stand endured insensitive treatment from lawyers and harassment from Habré supporters waiting outside the courtroom.11  

Habré was ultimately convicted of sexual violence but was acquitted of the rape of Khadidja Zidane. According to the judges, this was due to a procedural issue, in that her statement had come too late to be included in the charges. The acquittal reveals persistent challenges when prosecuting sexual crimes. Gender biases and discrimination that endure in investigative and judicial procedures often make it difficult for survivors of sexual violence to come forward and have their complaints heard in a secure and timely manner. As was originally the case at the EAC, these dynamics can lead to the exclusion of sexual violence survivors from international tribunals.12 

 

Citations & References

Commentary & Reports

Kim Thuy Seelinger “Hissene Habre’s rape acquittal must not be quietly airbrushed from history” (The Guardian: 2017) 

This article recounts Khadidja Zidane’s testimony and explains the implications of Habré’s acquittal for rape. The piece emphasises that ensuring justice for sexual violence crimes requires addressing the gender biases in investigations and judicial systems which make it difficult for women to be heard by investigators and at tribunals. 

Celeste Hicks “How Survivors of Sexual Assault helped Bring Chad’s Former Dictator to Justice” (World Politics Review: 2018)

This piece documents the central role that the testimony of sexual violence survivors had in the Habré trial. Hicks recounts the prejudices survivors endured as witnesses and the advocacy efforts that led to requalifying the charges against Habré to include sexual violence.  

Challenges and priorities of the Extraordinary African Chambers in the Senegalese Courts

The EAC was designed to conform to the competing normative obligations imposed by two separate treaty bodies of equal jurisprudential influence and level. Whereas the Committee for the Convention Against Torture argued that Habré should be tried or extradited under Senegal’s commitment to the Convention Against Torture, the ECOWAS Court ruled that Habré could not be tried under a law that did not exist when the crime was committed, citing the principle of non-retroactivity of laws.

In seeking a way forward, the African Union and civil society groups all felt that priority should be given to an African mechanism.13 The creation of the Extraordinary African Chambers was a ground-breaking solution. This was the first time that an African Head of State faced justice in another African country, and the first occasion that an African court operated under the principle of universal jurisdiction, a recognised principle under international law.

Citations & References

13: Gibert 2016. 

Hybrid courts

Under the terms of its Statute, the EAC was created as a judicial organ able to honour multiple international convention commitments.14 In May 2006, the Committee for the Convention Against Torture declared that Senegal was obliged to take criminal legal action against Habré, under Article 7(1) of the Convention Against Torture to which Senegal was a signatory. Facing the prospect of being tried in a Senegalese court, Habré brought a complaint to the ECOWAS Court claiming that Senegal was charging him for international crimes on the basis of legislation that was adopted years after those crimes had allegedly been committed.

In November 2010, the ECOWAS court issued a decision, partly upholding Habré’s position. The ruling found that charging Habré with international crimes in Senegal would violate the ban on retroactive criminal laws, pursuant to Article 15 of the International Covenant on Civil and Political Rights (ICCPR), to which Senegal was also a signatory. The ECOWAS Court concluded that international custom required that international crimes be tried in internationalised tribunals, and a national court could only exercise jurisdiction in a case where international crimes had already been incorporated into national law before the offences were committed.15

Faced with these competing normative obligations under international law, the Senegalese government left it to the African Union to decide on a solution for bringing Hissene Habré to trial. Since the establishment of a new ad hoc African tribunal would have been extremely costly and required enormous effort and political will, the AU instead called on Senegal to try Habré through universal jurisdiction “on behalf of the African continent”.

The EAC thus afforded a regional solution: an internationalised court created within a domestic legal system. To many observers, this represented a shift towards the regionalisation of international criminal justice in Africa. As a mixed criminal tribunal, the EAC was physically and legally located relatively near the crimes being prosecuted, yet still far enough from Chad to minimise political interference and protect the safety of witnesses and victims.

 

Citations & References

14: Emanuele Cimiotta (2015) “The First Steps of the Extraordinary African Chambers: A New Mixed Criminal Tribunal”, Journal of International Criminal Justice, Vol. 13, No. 1, P. 177-197. 

15: J.A. Hessbruegge (2010) “ECOWAS Court Judgment in Habré v. Senegal Complicates Prosecution in the Name of Africa”, ASIL Insights.

Commentary & Reports

Emanuele Cimiotta “The First Steps of the Extraordinary African Chambers: A New Mixed Criminal Tribunal” (Journal of International Criminal Justice, Vol. 13, No. 1, P. 177-197, 2015)

The EAC constitutes a novel type of adjudicatory body. This new body grew from an effort to reconcile conflicting obligations under international conventions which faced Senegal when the country first attempted to put Habré on trial.

Human Rights Watch “Submission to the Committee of Eminent African Jurists: Options for Hissène Habré to Face Justice” (2006) 

This report by Human Rights Watch was written as a set of recommendations to the Eminent African Jurists, tasked by the African Union with determining the best way forward in the Habré case. The report explains Senegal’s legal obligations and lays out options for bringing Habré to justice. The report concludes that trying Habré in Senegal would be the preeminent African option.

J.A. Hessbruegge, “ECOWAS Court Judgment in Habre v. Senegal Complicates Prosecution in the Name of Africa” (ASIL Insights, 3 February 2010) 

ECOWAS concluded that only an international court could charge Habré. Hessbruegge challenges this interpretation of the ICCPR, arguing that the ruling is difficult to reconcile with the wording of the Covenant and with other precedents where national courts have prosecuted international crimes within a domestic system 

Universal jurisdiction

The Habré trial was the first in which a court in Africa prosecuted a suspect under universal jurisdiction, creating a precedent for universal competence and for future prosecutions of international crimes in African courts. Incorporating universal jurisdiction into national law allows a state to exercise jurisdiction over persons accused of certain especially egregious crimes, regardless of where they were committed or the nationality of the accused and the victims. The principle derives from the claim that certain crimes are so grave –crimes against humanity, genocide, war crimes, torture and the like– as to be deemed offences against the humankind. Applying this logic, the universally egregious nature of the harm done would necessarily impose a moral duty on all states to prosecute the perpetrators, while the universally felt nature of the harm would vest all states with a shared source of judicial authority to bring such prosecutions. 

The principle of universal jurisdiction was introduced into Senegalese law in February 2012 (Act No. 2007- 05), thus amending the Code of Criminal Procedure to allow the prosecution in a domestic court of any foreign national accused of committing certain specified grave crimes outside Senegalese territory. The Act goes beyond genocide, crimes against humanity and war crimes extends to include acts of torture and crimes against the security of the state, such as terrorism, attacks, plots and other related offences. 

Adopting the principle of universal jurisdiction allowed Senegal’s courts to exercise jurisdiction in the Habré trial, despite his being a foreign national whose crimes had been committed outside the country’s borders. In addition to refusing to recognise this jurisdiction, Habré’s counsel voiced the further objection that his client could not be charged with crimes that had not existed under Senegalese law at the time they had been committed. The Senegalese Constitution, however, provides that any international treaty ratified by Senegal can be directly applied in its domestic courts. Since Senegal had ratified various instruments of international customary law which defined Habré’s alleged offences as international crimes before they had been committed, these instruments were applicable at the EAC. These included the Torture Convention, the four Geneva Conventions and the Genocide Convention, among others.16 The authority to prosecute Habré thus came from applying international customary law, as permitted by the Constitution, in a case established under the principle of universal jurisdiction, thereby giving Senegal the right to try Habré despite his crimes having been committed elsewhere. 

Universal jurisdiction offered a path to justice in the Hissène Habré case. It should nonetheless be recalled that establishing the EAC and securing his conviction took fifteen years of advocacy, investigation, litigation and persistence. In that regard, the Habré case is also a lesson in just how difficult it is to bring powerful officials to justice through universal jurisdiction. To the extent that the case can be seen as a model for future prosecutions of international crimes on the African continent, the Habré trial also illustrates that an affordable and efficient regional option, capable of replacing the International Criminal Court, is still a long way off.17

Citations & References

16: Ministry of Justice (2017) “Information and observation on the scope and application of universal jurisdiction” Submission to UN General Assembly, 17-08094E (Republic of Senegal)

17: Elise Keppler, Human Rights Watch (2016) “This is What the Conviction of Chad’s Former Dictator Means for African Human Rights”, Washington Post.

Commentary & Reports

Elise Keppler, Human Rights Watch “This is What the Conviction of Chad’s Former Dictator Means for African Human Rights” (Washington Post: 10 June 2016) 

This report describes the implications of the Habré case for the use of “universal jurisdiction” in future prosecutions of international crimes in African courts. The piece highlights both the successes and the complexities of adopting universal jurisdiction in the Habré case and suggests caution when reflecting on the case as a model approach.

 

Celeste Hicks “The Trial of Hissène Habré: How the People of Chad brought a tyrant to justice” (Chicago University Press: 2017)

This book recounts the many years of advocacy and legal action leading to the Habré trial, as well as the trial itself. Hicks explains the trial’s legal implications, its role within international human rights legislation, and the precedents set by the trial for future international tribunals.

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