Reed Brody: Hissène Habré Trial Shows Power of Victims’ and Civil Society’s Agency

7/2/2015

This summer, Hissène Habré, the former dictator of Chad, will finally stand trial before the Extraordinary African Chambers in Senegal for crimes against humanity, torture, and war crimes. While Habré was indicted in July 2013, it was only after a 19-month long investigation, that the judges found sufficient evidence to bring Habré to trial. The trial, set to begin July 20, 2015, marks a huge turning point in the victims' long, determined fight for justice.

Habré's trial is unprecedented as the first in which the courts of one country (Senegal) will prosecute the former ruler of another country (Chad). In addition, Habré's prosecution will the first in Africa to be under universal jurisdiction. Universal jurisdiction ensures that suspects of human rights abuses are not granted impunity by a third state, as national courts can prosecute serious crimes committed by a foreigner or against foreign victims.

The Extraordinary African Chambers, inaugurated in February 2013 by the Senegal court and the African Union, is set to prosecute crimes committed during Habré's rule, from June 7, 1982 to December 1, 1990. Created within the Senegalese court system, the chambers follows the Senegalese Code of Criminal Procedure and have four levels: an Investigation Chambers, an Indicting Chambers, a Trial Chambers, and an Appeals Chambers. The president of the Trial Chambers is Gberdao Gustave Kam of Burkina Faso, and he will sit with two senior Senegalese judges, Amady Diouf and Moustapha Ba.

This trial has the potential to reverberate across Africa when it comes to the efforts to achieve accountability for international crimes and help the victims of such crimes achieve a sense of justice.

In a conversation with Reed Brody, counsel and spokesperson of Human Rights Watch, who has worked with Hissène Habré’s victims since 1999, we discussed the potential impact of the trial on Chad and its broader significance for the struggle against impunity in Africa.

What is, in your view, the most significant aspect of the Hissène Habré trial?

The role of the survivors as protagonists is very significant, not just in terms of their filing the complaint against Habré in Senegal in 2000, but in their endless campaigning to bring him to trial. Chadian victims and NGOs went to Senegal time and again to plead their case to the public, the press, and politicians, including opposition leader Macky Sall, who became president in 2012 and set the trial in motion. After the case had been first thrown out in Senegal in 2001 and the victims went to Belgium under its universal jurisdiction law, it was the victims’ personal appeals to Belgian politicians that won a “grandfather clause” to survive the repeal of the law. Those appeals created a reservoir of support in Belgium that spurred the government to take the matter to the International Court of Justice (ICJ), which in 2012 ordered Senegal to prosecute Habré if it did not extradite him.

The visibility of the victims makes it much more difficult for Habré to present himself as the victim, which is now his principal strategy. For instance, after Habré was arrested in 2013, his wife wrote a teary open letter to President Sall complaining that their family life had been disrupted. Two days later, Khaltouma Daba, a Chadian widow, responded that her family life had been shattered when her husband was taken away by Habré’s political police, and that at least Mrs Habré knew where her husband was. Daba’s picture was all over the Senegalese press. Last month, when Habré’s lawyers announced that he did not want to appear in court (the judge can require him to do so), the founder of the victims’ association Souleymane Guengueng mocked Habré in the Senegalese press, asking if the once-omnipotent dictator was now afraid to look the survivors in the eyes and listen to their testimony.

I think this dynamic is very different from that at international tribunals where the prosecutor or the “international community,” not the victims, is seen as the driving force. In Senegal and Chad, the Habré case is associated with survivors like Guengueng and Clement Abaifouta the president of the victims’ association who had to bury his cellmates in mass graves; prison martyrs like Rose Lokissim; and the victims’ courageous lawyer, Jacqueline Moudeina, who survived an assassination attempt and has won many international prizes. In the most recent episode, with Sudanese President Omar al-Bashir escaping arrest in South Africa, it could have been interesting to see Darfuri victims face off with Bashir.

The victim’s role also has implications for how the case is structured. From the very beginning, victims have insisted that the dossier include crimes committed against each of Chad’s victimized ethnic groups. While ultimately it was the Chambers’ prosecutor and investigating judges who determined the contours of the trial, they relied on the victims’ narrative, which was built over 15 years. Human Rights Watch discovered the abandoned files of Habré’s political police in 2001. Victims’ associations spent months sorting through them. Even the choice among the many survivors of who would testify at the trial was made in informal consultation with victims’ associations. That is a far cry from an ICC prosecutor who narrowly tailors a prosecution to secure a conviction, as happened, for instance, in the DRC cases, or where the usefulness of survivors is limited to their roles as witnesses. And, of course, many of the victims will participate in the Habré trial itself, as full civil parties, with their lawyers questioning witnesses and asking for reparations.

This dynamic has also meant giving equal weight to victims’ claims for justice at home in Chad. In March, a court in Ndjaména convicted 21 of Habré’s accomplices and ordered $125 million in reparations for victims, the building of a memorial, and transformation of the former political police headquarters into a museum.

I just came back from Chad where the main victims association was swarming with international journalists preparing background stories on survivors who had brought the dictator and his henchmen to justice. There is a real and deserved sense of accomplishment and satisfaction. It is very similar to what I saw in Guatemala, where the indigenous communities and the NGOs could rightly say that they were the architects of the trial of former dictator Efrain Ríos Montt. There, too, the survivors and their supporters mobilized to bring Ríos Montt to justice, defined the narrative, and framed the trial itself. In fact, I showed some clips of the Ríos Montt trial, to Chadian victims, who saw in those images exactly what they were trying to do.

What has it taken to bring Habré to trial 25 years after he was deposed by Idriss Déby Itno, Chad’s current president?

Habré was deposed in 1990 and fled to Senegal. The case didn’t get underway, though, until 1999, when Chadian NGOs, inspired by the arrest of former Chilean President Augusto Pinochet for crimes against humanity in London for torture under a Spanish arrest warrant [based on that country’s universal jurisdiction law]. They reached out to us to help the victims file a complaint in Senegal. Habré was first indicted by a Senegalese judge in 2000, but for the next 12 years former Senegalese President Abdoulaye Wade subjected victims to what Desmond Tutu described as an “interminable political and legal soap opera.” It was only in 2012, when Macky Sall became president and the ICJ ordered Senegal to prosecute or extradite Habré, that progress was made toward bringing him to the trial.

In a case that looked dead so many times, the victims made it clear that they were just never going away. When the case was thrown out in Senegal, they filed a complaint in Belgium. When Wade threatened to expel Habré from Senegal, they got a ruling from the UN Committee against Torture preventing Habré from leaving Senegal. When the ICJ handed Belgium and its universal jurisdiction law a stinging defeat in the Arrest Warrant case, and even suggested that former rulers, like Habré, enjoyed immunity for non-private acts, Chadian NGOs convinced their government formally to waive Habré’s immunity, which allowed the Belgian probe to continue, and so forth.

Although the Chadian government has supported Habré’s prosecution and even helped to finance the Senegalese court, lately it appears as though their support for the Chambers may have diminished. Can you explain why this is so, and discuss the impact that the Habré case will have in Chad?

In addition to financing the Chambers, the government of Chad had taken a number of steps — lifting Habré’s immunity, inviting Belgian and Senegalese judges — without which the case would have been impossible. Around November 2013, when the Chambers began to look past Habré to others who were “most responsible,” the Chadian government seemed to get cold feet. President Déby, who had been Habré’s military chief during a particularly bloody episode – “Black September” 1984 – was said to fear that he or those around him would be implicated. He sacked his cooperative Minister of Justice, refused to transfer two key DDS suspects to the Chambers and, perhaps to justify that refusal, rushed them to trial in Chad without a proper pre-trial investigation.

Even now, on the eve of the Habré trial, it is not clear whether those convicted in Chad will be allowed to testify and whether Chad will live up to its agreement to broadcast the trial at home. In addition to the potential implication of current officials, I think that Chad’s authoritarian government feels threatened by the victory achieved by civil society in bringing a former ruler to justice and wants to limit its contagious effect. So, Chad’s cooperation is clearly the Chamber’s weak link.

How does the establishment of the Extraordinary African Chambers in Senegal and the Habré trial relate to the current crisis between the African Union and the ICC? Is this a sign of a resurgence of ad hoc tribunals amidst the ICC’s so-called "African crisis"?

When Senegal “referred” the case to the African Union in 2005, we were all worried that the likes of Bashir, Zimbabwean President Robert Mugabe, and Obiang would ensure the case went nowhere. But the AU legal office under Ben Kioko played a key role in ensuring a legal, rather than a political, response, appointing a committee of jurists who told Senegal it had to prosecute Habré. The AU saw that it couldn’t object to abusive leaders being sent to The Hague if it couldn’t show that they could be tried in Africa. So the AU became a key ally in pressing Senegal to move forward. The Chambers are also remarkably “low-cost,” at about $10 million. A Habré-type solution would seem to fit the situation of the former Ethiopian dictator Haile Mengistu, now living in Zimbabwe. A hybrid tribunal has just been established in the CAR, though it is dozens, if not hundreds, of times more costly than the Senegalese Chambers.

Under Senegalese law, Habré's trial cannot be televised, which may hamper victims in Chad (and elsewhere) from following the trial. What are the plans for outreach around the trial, so that victims can stay informed? Beyond Chad, how will the trial’s coverage (or lack thereof) affect the international justice debate in Africa in the long run?**

The Chambers’ Statute provides for filming and recording trial proceedings for broadcasting purposes, as with other internationalized trials. The Judicial Cooperation Agreement between the countries commits Chad to broadcast the recordings of proceedings on public radio and television and to allow private media entities to do the same. With the trial only two weeks away, however, we still don’t know what the final arrangements are. The Chambers, through a consortium of NGOs from Senegal, Belgium, and Chad that received a contract from the court, have undertaken outreach programs in both Chad and Senegal, training journalists in both countries, organizing public debates, creating a website, and producing audio-visual materials to explain the trial.

To me, coverage of the trial proceedings and, equally important, of the victims campaign, is essential to its value. Habré’s victims were inspired to seek justice by the arrest of Pinochet, which showed that justice was possible even where it seemed out of reach. The Habré case shows that it is possible for a victim-NGO coalition, with tenacity and imagination, to create the political conditions for a successful universal jurisdiction prosecution, even against a former head of state. Our hope is that the Habré campaign will, likewise, inspire others to pursue justice and continue in the face of obstacles.


PHOTO: Reed Brody (in dark blue shirt) with members of the Association of Victims of the Crimes of the Hissène Habré Regime (AVCRHH), Ndjaména, June 2015 (photo credit Alfredo Cadiz)