By Thijs B. Bouwknegt
From July 20th 2015, the former Chadian dictator, Hissène Habré, will stand in the dock on charges of crimes against humanity, torture and war crimes before the Extraordinary African Chambers (EAC) in the Senegalese court system. His trial will be Africa’s first to proceed to trial under the guise of ‘universal jurisdiction’ – the principle that international crimes have no borders.
Its decisive start signals a judicial rendezvous with the ghosts of Chad’s brutal past and will bring to a close a protracted legal drama, meandering through a myriad of jurisdictions. Next to being a catalysing forum for witness testimony, the Habré trial will above all be a litmus test for ‘Pan-African’ justice.
Glacial venture
“Je ne reconnais pas les faits qui me sont reprochés. Je n’ai jamais commis de tels actes.” This renunciation was the single utterance that Habré wished to share with his litigant, Demba Kandji.
It was late afternoon on 3rd February 2000. In a courtroom in Dakar’s Regional Court, the Senegalese Investigating Judge had just charged Habré as an accessory to torture and crimes against humanity and placed him under virtual house arrest. Hopes for justice were rising among seven Chadians who, in the days before, had testified before Kandji about political killings, torment, disappearances and arbitrary arrests under their former President’s repressive rule. Kandji had moved fast.
Fearing Habré’s flight, the Senegalese magistrate had summoned the survivors to recount their plight during two days of closed-door hearings. Only two days after the Chadians, supported by international human rights groups, had filed a criminal complaint against Habré for his “barbarous acts”.
Finally, hearings for historic atrocity seemed set on the horizon. But attaining universal justice for old crimes is a glacial venture. It demands uncompromising determination. But above all, it requires endless patience (in Habré’s case another fifteen-and-a-half years.)
Timing and venue had appeared to be perfect to pursue the ‘Desert Fox’ into a legal hole. The spirit of international justice filled the air in the late 1990s. Balkan war criminals and Rwandan génocidaires were being served judgements at the UN’s ad hoc tribunals (ICTY & ICTR) in The Hague and Arusha. In Rome, in July 1998, 120 states endorsed the conception of the International Criminal Court (ICC), the world’s first permanent court to pursue supposed criminals against humanity. Only a couple of months later, in London Bridge Hospital, the former Chilean martinet Augusto Pinochet was detained, based on a Spanish arrest warrant listing 95 counts of torture.
Senegal seemed an arena of imminent opportunity. The West African nation was an early subscriber to international law and human rights treaties. In February 1999, Dakar was the first state to ratify the Rome Statute. Back in 1985 it was among the first countries to sign the UN’s Convention Against Torture, well ahead of a clique of western establishments. There was no better place to test the waters of universal jurisdiction than coastal Senegal. Its guinea pig was the exiled Habré, who had lived in Dakar since 1990, owning two mansions in the Ouakam and Mamelles neighbourhoods.
But the tide was ebbing. Politics eroded justice and Habré, who was soon dubbed ‘Africa’s Pinochet’, was manoeuvred back into luxurious impunity. The gruesome victims’ testimonies about torture in Habré’s secret prisons – including ‘Arbatachar’, in which a prisoner’s arms and legs were tied together behind the back – and how they had been forced to dig mass graves to bury Habré’s opponents, rapidly eclipsed during Senegal’s hotly contested elections.
While the zealous Kandji had started hearing further witnesses and was anticipating amassing more testimony and evidence in Chad, Dakar’s appeal panels ruled out jurisdiction over the more than a decade old crimes, perpetrated roughly 4,500 km away. A month later, Abdoulaye Wade took office as Senegal’s new President. But one of his closest judicial advisors was Madické Niang, who also happened to be Habré’s lawyer. In June, Judge Demba Kandji was removed from the Habré investigation, followed by further dubious reshuffles in the judiciary. On 20 March 2001, flexibly framed legal reasoning shipwrecked the case at Senegal’s highest court, the Cour de Cassation. Habré’s prosecution in Senegal was played out: his tormenting phantoms were chased out of the courtrooms and footnoted into the annals of history.
Chad’s gloomy past
The current Chadian President Idriss Déby Itno unseated Habré in December 1990, ending an eight-year saga of state repression, political assassinations, ethnic strife and deadly persecution of southerners, Chadian Arabs, the Hadjerai and the Zaghawa.
Three hundred political prisoners were reportedly assassinated before Habré escaped to Senegal, via Cameroon, reportedly with his bags filled with the former French colony’s entire treasury. In return he left behind a catalogue of horror with its details registered in his own secret archives of tyranny. Human Rights Watch (HRW) advocates rediscovered them in 2001. Strewn on the timeworn floors at the former headquarters of the Direction de la Documentation et de la Sécurité (DDS) lay some 49,000 documents including old magazines, photographs, radio transcripts and official state files and memoranda.
Among the records of Habré’s dreaded Gestapo-like secret police service were also prisoner lists, arrest and interrogation reports, death certificates and spying reports t. Pieced together, they form the threads of clandestine prisons and torture cells that were the tapestry of Habré’s police state, including its emblematic Piscine; an old colonial swimming pool transformed into an oubliette holding 10 cells, right next door to the USAID office in central N’Djamena.
As the doors of these torture chambers swung open after Habrés’s ousting in 1990, hundreds of political prisoners were freed; the Piscine and other buildings were left abandoned. Thirteen months later, after some hasty reconstruction work, prosecutor Mohamat Hassan Abakar set up office in the loathsome DDS main offices. His truth commission avant la lettre was to investigate “crimes and misappropriations” by Habré and his inner circles.
Abakar’s investigators stumbled upon the detailed reports of executions, destruction of villages and a massacre in the DDS files. And over the next 17 months, they exhumed three mass gravesites and collected 1726 witness statements of former detainees, victims’ relatives, prisoners of war, DDS agents and senior officials. From these sources, the commission counted some 54,000 detainees in Habré’s prisons and 3,806 people dead. It loosely extrapolated that the total casualty number of what it regarded a ‘veritable genocide’ and crimes against humanity between 1982 and 1990 could reach up to 40,000 deaths.
Besides naming the 14 most notorious torturers and publishing their pictures, the Commission of Inquiry revealed in its report that the United States of America (USA) was the principal supplier of financial, military and technical aid to the DDS and Habré, maintaining an anti-terrorist bulwark against Libya’s Muammar Gaddafi. But Deby’s government – of which many officials and the president himself were involved in Habré’s misdeeds – did not pursue any justice and even locked away the truth commission’s records.
Universal jurisdiction
The truth commission account, alongside a report by a French medical team, which treated 581 torture victims in the mid-1980s, composed the documentary core of what became the first step in what has been portrayed by observers as an “interminable political and legal soap opera – one that requires tabulated chronologies to navigate the labyrinths of international law.” It was supported by the invaluable witness testimonies treasured by one of the plaintiffs, Souleymane Guengueng.
Walking out of prison in December 1990, the former accountant became a free man but, in his own words, looked like a skeleton; shattered by his three-year captivity where he witnessed hundreds of his fellow inmates perish from brutality and general ill-treatment. Throughout his imprisonment he swore to fight for justice. In the immediate years following Habré’s downfall he accrued 792 witness accounts from fellow survivors.
The accounts, which he hid underneath his mud-brick house for years, detailed 97 political killings, 142 cases of torture, 100 “disappearances” and 736 arbitrary arrests, most carried out by the DDS. But Guengueng’s optimism for justice in Senegal was short-lived. Nevertheless his perseverance outlasted despair. A little more than a year after the case was dropped, Guengueng was back in his former prison, but this time exhibiting them in front of a Belgian judge.
From the early 2000’s, civil complaints about serious human rights abuses had been piling up in the offices of a special investigative unit at the arrondissement judiciaire Bruxelles. Belgium’s broad but internationally controversial universal jurisdiction law – the ‘genocide law’, in local parlance – permitted judges to look into allegations of international crimes outside of its borders. The list quickly swelled: Rwanda, Israel, Palestine, Burma, China, Cambodia, Guatemala, Congo (Brazzaville), Iran, Chile, Cuba, Iraq, Côte d’Ivoire, Central African Republic, Mauretania.
Brussels became pivotal in the Habré case. Daniel Fransen, one of the investigating magistrates, received a first complaint late November 2000, filed by a Belgian citizen of Chadian descent. Two dozen comparable civil-party applications followed in the subsequent months. Fransen found that the acts complained of — extermination, torture, persecution and enforced disappearances — could be characterised as “crimes against humanity” and traveled with a prosecutor, four police officers and a court clerk to Chad on 26 February 2001.
Armed with computers, camcorders, cameras and police equipment; he met with the 54-year old Guengueng and other witnesses who had lined up for hours to tell their stories. They took the Belgian team to their old prisons, gravesites and to the DDS archives. On returning on 8 March, Fransen took the copies of Habré’s political police, received the disclosed truth commission dossiers and compiled 27 binder files of evidence.
After a four-and-a-half-year review of the material, Judge Fransen issued an international arrest warrant in absentia for Habré in September 2005. He charged the former President as the perpetrator or co-perpetrator of “serious violations of international humanitarian law, torture, genocide, crimes against humanity and war crimes.” But instead of extraditing Habré, Senegal set in motion a further legal rollercoaster. President Wade took the matter into his own hands and addressed it to the African Union (AU), which after mounting pressure from the European Union and a ruling by the UN Committee against Torture requested Senegal to prosecute Habré “on behalf of Africa.”
From 2007, Dakar grudgingly prepared for trial, reconfiguring its laws, lobbying with donors, amending the constitution and reviewing fourteen new victim complaints. So the wheels of justice were grinding, but the political will was against the grain, still. A surprise judgement emerged in Chad in August 2008: Chad convicted and sentenced Habré to death in absentia for allegedly helping Sudanese-backed rebels, who tried to overthrow Déby in 2008. Senegal’s Justice Minister – who was closely connected to Habré’s defence – was quick to state that with this judgement he can no longer be tried in any other jurisdiction.
Extraordinary – ‘Pan-African’ justice
Frustrated by Wade’s endeavours to thwart or derail a Habré prosecution, in 2009 Belgium sought an order from the UN’s highest tribunal – the International Court of Justice (ICJ) – to order Senegal to try Habré or to extradite him, based on Fransen’s warrant. The chorus of pressure was then joined by yet another court, a year later. This time the Court of Justice of the Economic Community of West African States (ECOWAS) ruled that Habré should be tried before a “special ad hoc procedure of an international character.”
In response, the African Union proposed a plan for special chambers within the Senegalese justice system with some foreign judges on the bench. But again, Wade’s administration ruled out holding Habré’s trial in Senegal. When Macky Sall was elected president in 2012, however, the table was turned and progress towards a trial snowballed. Sall quickly answered to the ICJ’s instruction to prosecute Habré “without further delay” if it did not extradite him; within half a year, he agreed with the AU to set up the Extraordinary African Chambers (EAC) in August 2012.
Similar to the ICC, the international criminal tribunals and countries with broad universal jurisdiction laws, the extraordinary chambers have jurisdiction over the international crimes of genocide, crimes against humanity, war crimes and torture. Its temporal focus is historic and covers the exact period of Habré’s rule – stretching between 7 June 1982 and 1 December 1990 – while its geographical scope is limited to Chad.
Inaugurated in February 2013 and structured within the existing Senegalese court system, the EAC has four levels: an Investigative Chamber with four Senegalese investigative judges, an Indicting Chamber of three Senegalese judges, a Trial Chamber and an Appeals Chamber. The Trial Chamber and the Appeals Chamber each have two Senegalese judges and a president from another African country. Mbacké Fall was appointed Prosecutor. On Mbacke’s request, Habré – alongside 5 other Chadians – was indicted on 2 July 2013. The former president was put in pre-trial detention while the court issued international arrest warrants for the others.
Investigations were launched immediately. Belgium transmitted its binders to Dakar and the judges took copies of the DDS files that Human Rights Watch unveiled in 2001. They were a springboard from where the investigative judges commenced their thorough 19-month inquiry, including four ‘rogatory’ missions to Chad. Mohamat Hassan Abakar, the truth commissions’ president, was one of the first witnesses interviewed. His statement adds up to the 2500 testimonies that were gathered from a range of Chadians: direct and indirect victims and key witnesses, including former officials of the Habré government. A notorious DDS agent, Bandjim Bandoum, testified for two days in France in early 2014.
Experts were appointed to conduct data analysis, decipher Habré’s handwriting on communications, detail the historical context of his rule and outline the functioning and command structure of the military. On the ground, the Argentine Forensic Anthropology Team carried out exhumations at mass grave sites, locating and uncovering bodies of people killed in massacres. Altogether, the fact-finding judges found they had sufficient evidence for Habré to face charges of crimes against humanity and torture as a member of a “joint criminal enterprise” and of war crimes on the basis of his superior responsibility. Specifically, in a detailed 196-page indictment, Habré was charged with: (1) the systematic practice of murder, summary executions, kidnapping followed by enforced disappearance and torture, amounting to crimes against humanity, against the Hadjerai and Zaghawa ethnic groups, the people of southern Chad and political opponents; (2) torture; and (3) the war crimes of murder, torture, unlawful transfer and unlawful confinement, and violence to life and physical well-being.
Habré’s co-accused – Saleh Younous, Guihini Korei, Abakar Torbo, Mahamat Djibrine, and Zakaria Berdei – remain outside the reach of the EAC. In March this year, Younous and Djibrine, alongside 18 other former Habré-era officials, were convicted in Chad on charges of murder, torture, kidnapping and arbitrary detention, based on complaints filed by victims. Berdei is also believed to be in Chad, though he is not in custody. Torbo and Korei’s whereabouts are currently unknown. Habré will thus stand trial alone. Contrasting the years that it took to bring him to the dock, the trial, which will be publicly broadcasted in Senegal and Chad, will be relatively short; it is scheduled to be finalised in seven months, including writing and delivering a judgement. Presiding judge Bgerdao Gustave Kam from Burkina Faso (who formerly worked at the ICTR) and his two Senegalese colleagues – Amady Diouf and Moustapha Ba – will spend extensive time examining the 100 witnesses who are lined up to testify in Dakar.
Rendezvous with history
Victims, who have spearheaded and lobbied for Habré’s prosecution from the start, will be represented by their lawyers, but only a small number will have a forum to relate their traumatic experiences. “I want to look Hissène Habré in the face and ask him why I was kept rotting in jail for three years, why my friends were tortured and killed,” said Souleymane Guengueng. Jacqueline Moudeina, a Chadian civil parties lawyer, who has been spearheading the victims’ case against Habré since 2000, wrote that when she found herself facing Habré, alongside two victims and in front of the investigating magistrates for a confrontational hearing during the investigations, she “took full measure of my role as giving a voice to these innumerable people who do not have one.”
“This trial is Chad’s rendezvous with history,” commented HRW’s Reed Brody: “For the first time, after 24 years, victims are getting their day in court as the abuses of the Habré government are being presented for all to hear.” True, the inquisitorial style of the proceedings will catalyse unique vive voce historical narratives, revelations and confessions about atrocities committed in the 1980s. Yet, they are not testimonies from the past; the histories being told and written in Dakar will be in retrospect, enticed by judges, prosecutors, victims’ representatives and defence lawyers and perceived through the lens of judicial proceedings. Moreover, trials can prove to be uncomfortable platforms for confronting the past. As evidenced by his website, Habré, who has always denied any wrongdoing and protested against his prosecution, is keen to introduce a counter-narrative.
Also, we only get to know Habré as a suspect in the courtroom and prisoner in his cell, not in his alleged criminal state, ruling Chad two decades ago; in the way his victims would remember him. Media-shy, the only image of the now 73-years old Habré has transpired in court documents. The investigating judges profiled Habré in their inquiry as a calm, courteous and helpful family man, married to two wives and father to six children and an adopted son. A devoted Muslim, he spends his prison days reading the Quran, walking and seeing his family and lawyers. His jail life reveals a pious and spiritual personality, yet, observed an expert, he manifests an oversized ego. Before his judges he will play down his acts and mute their impressions in order to appear a plain, colourless and ‘ordinary man’, centrifuged through the machinery of international justice. In all, the most challenging task for the judges of this newbie court, is to separate facts from fictions, see through emotions and politics and rule on Habré’s culpability for the specific charges spelled out against him, based on the evidence and ‘beyond any reasonable doubt’. Only that will make the first ‘Pan-African’ trial a vitalising specimen for the future of (international) criminal justice after mass atrocity in Africa.
Thijs B. Bouwknegt is a Trial Monitor, International Justice & Universal Jurisdiction and Ph.D. Researcher at the NIOD Institute for War, Holocaust and Genocide Studies in Amsterdam.
