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
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
Habré’s one-party state was characterised by widespread human rights violations and acts of ethnic cleansing. The longevity of his rule was due in part to support from France and the United States.
After a rebel offensive led by Idriss Déby, Habré fled to Cameroon, and the rebels entered N'Djamena on 2 December 1990. Habré subsequently went into exile in Senegal.
Déby won elections in 1996 and 2001. After term limits were eliminated, he won again in 2006, 2011, and 2016.
The Commission of Inquiry into the Crimes and Misappropriations Committed by Ex-President Habré, accuses Habré’s regime of approximately 40,000 political murders and systematic torture.
- Document: Chad: Report of the Commission of Inquiry into the Crimes and Misappropriations Committed by Ex-President Habre, His Accomplices and/or Accessories, 7 May 1992, reprinted in N.J. Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Vol. III (United States Institute of Peace, 1995)
The complaint asserted that Senegal had jurisdiction to bring Habré to trial based on the 1984 UN Convention against Torture, ratified by Senegal. The Convention obliges states to either prosecute or extradite alleged torturers who enter their territory.
- Document: 1984 UN Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment.
Habré is placed under house arrest and a Senegalese court charges him with torture and crimes against humanity.
The new president publicly states that Habré would not be tried in Senegal.
The magistrate who had indicted Habré and was pursuing the pretrial investigation was transferred from his post.
The court rules that Senegal had no competence to pursue acts of torture that were committed outside the country.
- Document: Hissène Habré case, Dakar Court of Appeal, 4 July 2000: "the Senegalese courts cannot take cognizance of acts of torture committed by a foreigner outside the Senegalese territory regardless nationalities of the victims. The wording of Article 669 of the Criminal Procedure Code excludes the jurisdiction of the Senegalese Courts”
HRW discovers files from Chad’s Habré-era secret police known as the DDS. The files contain tens of thousands of documents, including daily prisoners lists and details of deaths in detention, interrogation reports, surveillance reports, and death certificates. Most significantly, the files detail Habré’s direct authority over the DDS and personal involvement in hundreds of the crimes documented, including 1,265 direct communications from Habré to the DDS about 898 different detainees. In total, the files named 12,321 victims of abuse, 1,208 of whom died in detention.
Senegal's highest court (Cour de cassation) upheld the decision of the Dakar Court of Appeal barring criminal proceedings against Habré. The decision was based on the absence of legislation establishing jurisdiction to prosecute foreign residents who had allegedly committed acts of torture outside Senegal.
- Document: Hissène Habré case, Court of Cassation, 20 March 2001 Decision
A coalition of Chadian victims lodged a complaint against Senegal with the UN Committee against Torture (CAT).
- Document: Souleymane Guengueng et Autres C/ Sénégal, Communication Presented before the Committee Against Torture (Article 22 of the Convention), for violation of Articles 5 and 7 of the Convention
CAT intervenes in Habré expulsion from Senegal
President Wade declares publicly that Habré has one month to leave Senegal. In a preliminary ruling, CAT calls on Senegal to “take all necessary measures to prevent Hissène Habré from leaving the territory of Senegal except pursuant to an extradition demand”.
- Document: Letter from Hamid Gaham, chief, Support Services Branch, Office of the UN High Commissioner for Human Rights, to Human Rights Watch, April 27, 2001
A group of Hissène Habré’s victims files a case against him as a step towards his extradition. Belgian law expressly included the principle of universal jurisdiction, meaning Habré could be tried for international crimes within its territory (the law was repealed in 2003, by which time the case had already moved to Senegal).
Chad’s justice minister, Djimnain Koudj-Gaou, writes to Judge Fransen of Belgium confirming that Chad would waive any immunity that Habré might seek to assert.
Belgian Judge Fransen issues an international arrest warrant against Hissène Habré. The same day Belgium asks for Habré’s extradition from Senegal.
Senegalese authorities arrest Hissène Habré.
The Indicting Chamber of the Court of Appeals of Dakar rules that it lacks jurisdiction to rule on an extradition request against a former head of state. Under Senegalese law, the decision thus went directly to President Wade.
The day after the court decision, the interior minister of Senegal issued an order placing Hissène Habré “at the disposition of the President of the African Union.” Stating that after forty-eight hours Hissène Habré would be expelled to Nigeria. The foreign minister of Senegal, Cheikh Tidiane Gadio, announced in a communiqué that: The State of Senegal would “abstain from any act which could permit Hissène Habré to not face justice” and considered “it is up to the African Union summit to indicate the jurisdiction which is competent to try this matter”.
The CEAJ is established to consider the options available for Hissène Habré’s trial. Their priority considerations are ensuring, “fair trial standards,” “efficiency in terms of cost and time of trial,” “accessibility to the trial by alleged victims as well as witnesses,” and “priority for an African mechanism”. Ultimately the CEAJ rules that, as a State party to the Convention Against Torture, “Senegal is under an obligation to comply with all its provisions.” Citing the CAT ruling, it added that “[i]t is therefore incumbent on Senegal in accordance with its international obligations, to take steps, not only to adapt its legislation, but also to bring Habré to trial.”
The Committee against Torture ruled that Senegal violated UN CAT and determined that Habré must either be prosecuted in Senegal or extradited to a country where he would face trial. The Committee also noted Senegal’s obligation to “adopt the necessary measures, including legislative measures, to establish its jurisdiction” over Hissène Habré’s alleged crimes.
President Wade declares Senegal’s accession to the request.
- Document: African Union decision that Habré be tried in Senegal
Senegalese government spokesman El Hadji Amadou Sall says that Senegal would establish a governmental commission under the Minister of Justice to oversee the legal changes, make contact with Chad, create a witness protection program, and raise money to carry out the investigation and trial.
- Document: Communiqué
- Document : Communiqué
The President of Senegal promulgated the Law No. 2007-05 amending the Code of Criminal Procedure relating to the implementation of the Rome Statute. Law No. 2007-05 allows for the trial of suspects based on the principle of universal jurisdiction and provides that offences codified in the Rome Statute would not be subject to any statute of limitations.
Habré is condemned to death along with 12 others for planning to overthrow the government after a trial in N'Djamena.
Habré files a case arguing that Senegal passed the laws necessary to assert jurisdiction over his alleged international crimes only after he committed them, violating his right under Article 15 of the International Covenant on Civil and Political Rights (ICCPR) to not be retroactively prosecuted.
The ECOWAS Court partially grants Habré’s application, finding Senegal would violate the prohibition against adopting retroactive criminal legislation should Habré stand trial for international crimes committed abroad in its domestic courts. ECOWAS thus determined that Senegal could only try Habré before a judicial body with an international character.
- Document: Hissene Habré v Republique du Senegal, judgment of18 November 2010, No. ECW/CCJ/JUD/06/10
The ICJ rules on the Belgian application instituting proceedings against Senegal regarding the application of CAT provisions requiring state parties to prosecute or extradite alleged torturers. The ICJ judges hold that if Senegal did not try the alleged torturer or extradite him to Belgium, it could be held responsible for a breach of its obligations, pursuant to Article 7(1) of the Convention against Torture.
- Document: Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), judgment of 20 July 2012, (www.icj-cij.org)
The ad hoc tribunal is established with jurisdiction to try Hissene Habré. The EAC Statute is integrated into the agreement. The agreement incorporates the EAC into Senegal’s judicial system and vests it with jurisdiction over the international crimes committed in Chad for the period in which Habré was in power (7 June 1982 until 1 December 1990).
- Documents: Statute of the Extraordinary African Chambers (August 22, 2012)
- Documents: other legal texts at www.chambresafricaines.org
The agreement grants the EAC jurisdiction to conduct investigations in Chad, as if it were Senegal. The agreement includes the right to travel throughout the country, question witnesses and visit former prisons.
Habré was arrested in Dakar and placed in police custody.
A Chadian criminal court convicts 20 Habré-era security agents on charges of murder, torture, kidnapping, and arbitrary detention. The court also awards 75 billion CFA francs (approximately USD 140 million) in reparations to 7,000 victims, ordering the government to pay half and the convicted agents the other half.
Habré is convicted of crimes against humanity, war crimes, and torture, including sexual violence and rape, and sentenced to life in prison.
- Document : Ministère Public c. Hissein Habré, Chambres africaines extraordinaires, arrêt du 30 mai 2016.
Appellate court confirms the conviction in April 2017, awards 82 billion CFA francs (USD 153 million) to 7,396 named victims, and mandates an African Union Trust Fund to raise the money by searching for Habré’s assets and soliciting contributions.
- Decision The Prosecutor v Hissein Habré 27 April 2017.
Seven thousand victims of the Habré regime file a human rights complaint against the Government of Chad before the African Commission on Human and Peoples’ Rights. The complaint accuses Chad of failing to comply with a judgement of the Special Criminal Court of N’Djamena of 25 March 2015. The Court awarded approximately USD 125 million in compensation to 7,000 victims who participated in the proceedings as civil parties.
Chad's government is yet to provide reparations ordered by its court in 2015 to 7,000 victims of grave crimes under Habré’s rule.
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
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.
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
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
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
11: Celeste Hicks (2018) “How Survivors of Sexual Assault helped Bring Chad’s Former Dictator to Justice” World Politics Review.
12: Kim Thuy Seelinger (2017) “Hissene Habre’s rape acquittal must not be quietly airbrushed from history” The Guardian.
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.
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.
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.