Africa Can Do Justice Too

On Monday May 30th, former Chadian military ruler Hissene Habré was convicted of rape, war crimes, torture and crimes against humanity committed during his rule from 1982 to 1990 and sentenced to life in prison at an historical trial in Senegal. But his conviction, to which his defense has 15 days to appeal, comes after a long road for justice. This landmark decision comes after yet another historical conviction on 27 May, of Argentina’s last dictator for his part in running Operation Condor in 1970s and 80s.

Habré fled to Senegal in 1990 after being deposed by the current Chadian president, Idriss Déby Itno. According to the Chadian Truth Commission of 1992, Habré’s government was suspected of killing more than 40,000 and torturing 20,000 people during his rule. Habré was indicted in Senegal in 2000, however the case was dropped on appeal on grounds of lack of jurisdiction over crimes committed abroad. Although Senegal is in fact the first State party to have ratified the Rome Statute, the founding Treaty of the International Criminal Court, ICC jurisdiction could not be triggered retroactively since its temporal competence is limited to events that took place after its establishment on 1 July 2002.

In 2001, Human Rights Watch lawyer Reed Brody found a large quantity of incriminating official documents in an abandoned building in Chad. These files listed 12,321 abuse victims, of whom 1,208 were recorded as having died in detention, and also established that Habré knew what was happening at the time and had given the orders. Armed with this information, other victims, among them three Belgian citizens, then filed a case in Belgium, known for its strong universal jurisdiction legislation, and then indicted Habré and sought his extradition in September 2005 after a four year investigation. However, after denying extradition also on the basis of lack of jurisdiction, the Senegalese government referred the Habré case to the African Union to decide his fate. The AU then formed a Committee of Eminent African Jurists and, on its recommendation, asked Senegal in July 2006 to prosecute Habré “on behalf of Africa.” Senegal accepted the AU mandate and subsequently amended its legislation to give its courts extraterritorial jurisdiction over international crimes, but the trial suffered numerous obstacles.

At the same time, Belgium filed an application against Senegal at the International Court of Justice in February 2009 after Senegal failed to extradite Habré and continued to stall on his trial. On July 20, 2012, the International Court of Justice in an historic judgment declared that Senegal was in breach of Article 7 of the 1987 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, that obliges states parties to either prosecute alleged perpetrators or extradite them to another country with jurisdiction to prosecute. This decision was significant because the ICJ has rarely decided upon obligations established by international human rights treaties. This ICJ decision created greater pressure on Senegal to prosecute or extradite Habré to Belgium. In the meantime, a court in Chad sentenced him to death in absentia in 2013 for crimes against humanity.

Unabated, Senegal continued the national proceedings following the principle of universal jurisdiction as enshrined in Articles 5 and 7 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984. However, on 18 November 2010, the Court of Justice of the Economic Community of West African States (ECOWAS) handed down a judgment barring Senegal from trying Habré in its own courts, and requiring the creation of an international court. This situation put Senegal in an awkward position, having to reconcile these two seemingly contradictory obligations under international law. Following the ECOWAS Court of Justice decision and the conclusions of a Donors Round Table held in Dakar on 24 November 2010 for the funding of the Habré trial, The African Union at its sixteenth ordinary session in Addis Ababa on 30 and 31 January 2011, confirmed the mandate given to Senegal for the establishment of a special Tribunal of an international character in Senegal. Senegal accepted the AU mandate and subsequently amended its legislation to give its courts extraterritorial jurisdiction over international crimes.

After a long road to justice, the trial began in the Extraordinary African Chambers in Dakar, Senegal on July 20, 2015 and ended on February 11, 2016, following testimony from 93 witnesses. The three-judge panel, with two judges from Senegal and one from Burkina Faso, used Senegalese law to reach the verdict. The documents found by Human Rights Watch, together with the testimony of victims, were fundamental to the prosecution’s case. The conviction of 30th May not only made history for being the first trial ever to hold a former leader from one country accountable for serious human rights crimes in a court of another country, but it was also the first universal jurisdiction case in Africa that made it through trial. Of particular relevance is the fact that Habré himself is also the first head of state ever to be personally convicted of rape.

This case has shown that when victims have the courage and determination to fight for justice, with sustained support from civil society, states, international and regional organizations, even high-level perpetrators can be held accountable.

Further Reading

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