Kerstin Carlson
Sierra Leone Telegraph: 25 March 2017
On May 30, 2016 an ad hoc tribunal in Dakar found the former Chadian head of state Hissène Habré guilty of crimes against humanity, war crimes, and torture. Part domestic, part international, the hybrid Chambres Africaines Extraordinaires sentenced him to life in prison.
Habré’s trial was a momentous event. It represented the culmination of 20 years of struggle by his victims and rewarded the efforts of human rights proponents who had long sought to have the former president tried for atrocities committed during his 1982 – 1990 reign.
The former president had successfully eluded many attempts to bring him to justice before the eventual creation of the extraordinary trial chamber.
The preliminary question of exercising jurisdiction over him was heard by courts in Senegal, Chad and Belgium as well as the transnational courts of the Economic Community of West African States (Ecowas), African Court of Human and Peoples Rights and the International Court of Justice.
The trial and its outcome represented a significant political and legal achievement, not just for African jurisprudence. It stands for the universality of international humanitarian law and challenges sovereign impunity.
The trial also moves Africa from object to subject. African jurists interpreting international criminal law added to the growing body of global jurisprudence.
In doing so, the Habré trial offers a compromise to the growing dissonance between the African Union and proponents of international criminal justice. It’s a compromise that perhaps suggests a path for future institutional and ideological growth.
The trial’s successes
One of the biggest milestones established by the trial is the fact that it was such a collaborative endeavour. It was the product of cooperation between Chad and Senegal, and a treaty between Senegal and the African Union.
Both Senegalese procedure and international criminal law were applied. The fact that the trial chamber convicted a former head of state in the African theatre is also highly significant given that sovereign immunity almost always resists challenges.
Other significant successes included the fact that the trial ran smoothly and in many ways set a standard for potential future international criminal justice institutions in Africa. There were no significant delays and no witnesses dead or disappeared, a not insignificant accomplishment.
It was also cost-effective. The operating budget was a modest 8.6 million euros, equivalent to about $9.2 million. This covered the entire cost of the trial, from investigation through appeals over four years. By comparison, the International Criminal Court’s annual budget in 2015 was $130 million.
Just as important was the fact that the trial avoided the endemic “hijacking” so often seen in international justice where parties press their interests in ways that obstruct institutional process. This was achieved in a variety of ways:
- when Habré’s defence refused to enter the courtroom for trial, the trial chamber appointed defence lawyers. And when Habré continued tophysically resist appearing in court, the trial chambers ordered the courtroom emptied every morning. This ensured that the violence of physically restraining the defendant would not become the story,
- the prosecutors moved ahead with the case even when Chad’s promised cooperation transformed into resistance,
- investigating judges curtailed the scope of their investigations even though Habré did not act alone, and
- when the written judgment was not finalised on the appointed date, the trial chamber improvised and read a “summary” aloud.
Habré’s appeal was heard in January and the final judgment is expected on April 27, 2017.
Some short comings
Despite all its successes, the initial satisfaction of the tidy operation of the Habré trial is not beyond reproach. Elements of the judgment point to some of the procedural discrepancies which marred the process. These are arguably the product of its hybrid legal construction.
Habré was found guilty of both direct and indirect commissions of war crimes, crimes against humanity and torture. For indirect guilt, the chamber applied international criminal law jurisprudence that permits guilt to be assigned where a defendant can “foresee” criminal violations arising from his acts.
This loose and permissive standard taken from International Criminal Tribunal for the former Yugoslavia jurisprudence has been widely criticised by commentators.
The approach is under review in the ongoing Yugoslav tribunal judgments and has been formally declined by the International Criminal Court.
The trial chamber also applied more recognisable criminal standards. This it did by simultaneously finding that Habré had personally committed acts falling in each legal category where it found indirect responsibility. This included Habré’s conviction for rape.
This was based on the surprise testimony of a witness who said Habré had raped her four times. The charge emerged for the first time during the oral trial proceedings but came to dominate the trial chamber judgment and its reception.
Thus international human rights advocates herald the judgment for its progressive advancement of a jurisprudence addressing sexual violence. But work-a-day procedural questions abound about the rights of the defence in relation to these charges.
The questions include the specificity required in, and permissibility of alterations to, criminal indictments, as well as standards of evidence.
Moment of truth for Habré
What should observers look for in the final verdict?
For the 72-year-old Hisséne Habré, there’s possibly little distinction between a life sentence and other imagined sentences. International sentencing is notoriously inconsistent and irregular. While life sentences have proved rare, sentences of a decade or more are common, and probably equal the same thing for the ageing ex-president.
Yet life sentences are perceived as violating human rights in many jurisdictions. Moreover, officials in Senegal have mentioned the possibility of a pardon, and the current president has issued pardons in other high-profile political cases in Senegal.
Following its finding of guilt, the trial chamber also ruled that Habré must pay $90 million in compensation to Chadian victims. At present, however, the total of Habré’s assets seized in Senegal amount to less than $1 million.
The judgment thus risks adding to the paper fortune that Chadian victims are owed by their own government. And while international NGOs are pressing the African Union to assist in growing a compensation fund or victims, there’s still no resolution.
The impending appeals judgment will finalise the process against Habré in juridical terms. There will certainly be implications for the significance of the hybrid trial in relation to respect for core human rights, rule of law and challenges to sovereign immunity in Africa.
But many other issues, from victims’ compensation through to the final dispensation of Habré himself, will remain open.
About the author
Kerstin Carlson is an Assistant Professor in International Law at the American University of Paris, University of Southern Denmark, writing in theconversation.com
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