The Extraordinary African Chambers, a special criminal court, opened on February 8, 2013 in the West African nation of Senegal to prepare a case against former Chadian president Hissène Habré. [NY Times] Habré has been accused of responsibility for the deaths of more than 40,000 people and the torture of more than 20,000 during his eight-year rule of Chad, from 1982 to 1990.
Habré has yet to be indicted by the Extraordinary African Chambers. However, his prosecution has been sought in connection with the serious human rights abuses committed by his government, which included politically- and ethnically-motivated extrajudicial killings and torture. [HRDAG] In particular, analysts have concluded that Habré was, at minimum, aware that the state security force was responsible for hundreds of prisoners’ deaths; government agents also killed and tortured thousands of political opponents. See Romesh Silva et al., State Coordinated Violence in Chad under Hissene Habre (2010). Habré has in the past been indicted on charges of torture and crimes against humanity in Belgium, Chad and Senegal. [HRW] Habré denies the charges against him.
Habré left Chad in 1990 after being deposed in a military coup and has spent more than two decades in exile in Senegal, where he has been under house arrest since 2005. [BBC] The Chambers’ opening marks a major milestone in a decades-long quest for justice waged by victims and advocates before national, regional and international courts, intergovernmental organizations, and human rights bodies.
The Extraordinary African Chambers
According to the Extraordinary Chambers’ Statute, it will prosecute “the person or persons most responsible” for crimes and grave violations of international law committed in Chad during Habré’s rule from 1982 to 1990. The Chambers’ jurisdiction is limited to four international crimes: genocide, crimes against humanity, war crimes, and torture. In Article 10, the Statute specifically rejects possible defenses on the grounds of official immunity, (lack of) command responsibility, and superior orders.
The Statute calls for the creation of separate chambers within the Senegalese judiciary to handle investigations, indictments, trials, and appeals in international criminal cases. The judges will be mostly Senegalese nationals, some appointed by the African Union Commission; however, a non-Senegalese judge from another African Union Member State will preside over both the trial and appeals chambers.
The Extraordinary Chambers’ Statute provides for the participation of victims at all stages of the proceedings as civil parties, represented by counsel, and states that the victims may also be awarded reparations. The Chambers’ budget allows for the recording of all proceedings as well as the establishment of an extensive outreach program so that the trial can have a positive and educational impact in Chad and elsewhere.
The first step in the proceedings is a fact-finding mission to gather evidence in Chad and from Belgium, which had undertaken its own investigation. If the evidentiary stage reveals serious breaches of international law, the prosecution will submit a preliminary indictment identifying specific charges. [allAfrica] After the fifteen-month pretrial investigation concludes, a seven-month trial and five-month appeals process will likely commence at the High Court of Justice in Senegal. [Voice of America; Bloomberg News] It is possible that Habré will be the only person tried before the tribunal. [HRW]
Victims’ Quest for Justice and Accountability
The recent establishment of the Extraordinary African Chambers in the courts of Senegal follows over two decades of advocacy to bring Habré, now 70, to justice.
Chad Truth Commission
In December 1990, the Chad government created the Commission of Inquiry on the Crimes and Misappropriations Committed by the ex-President Habré, his Accomplices and/or Accessories with jurisdiction to investigate, document and preserve evidence of arbitrary detentions, torture, killings, and other human rights violations, as well as illegal drug trafficking. [USIP] The Commission of Inquiry’s report, published in 1992, estimated that the Habré regime was responsible for 40,000 or more extrajudicial killings and the detention of more than 54,000 political prisoners. Report of the Commission of Inquiry into the Crimes and Misappropriations Committed by Ex-President Habre, His Accomplices and/or Accessories (1992), p. 81. Although the report named those responsible and made concrete recommendations to avoid impunity and repetition of the abuses, the Commission’s work did not lead directly to administrative or criminal sanction of Habré or other State agents, and its recommendations were generally not implemented. [USIP; TRIAL]
Indictment in Senegal
In 1999, a group of Chadian prison survivors and other activists filed a criminal complaint against Hissène Habré in Senegal. Although a Senegalese judge indicted Habré on charges of crimes against humanity, barbaric acts and torture, interference by the government of Senegal thwarted the proceeding, until it was dismissed in 2001; the Senegalese court found it lacked jurisdiction over torture committed outside Senegal. [HRW] At the time, the UN Special Rapporteurs on independence of judges and lawyers and on torture “expressed their concern to the Government of Senegal over the circumstances surrounding the dismissal of the charges.” [OHCHR]
Indictment in Belgium
In the year 2000, other victims filed a criminal complaint against Habré in Belgium, where universal jurisdiction laws allowed national courts to prosecute individuals for international crimes committed outside Belgium. A Belgian investigation led to Habré’s 2005 indictment on charges of torture, crimes against humanity and war crimes, and to repeated requests for Habré’s extradition. [HRW]
African Union Recommendation
Following the first Belgian extradition request, Senegalese authorities arrested Habré in November 2005 and asked the African Union to recommend how to try Habré. In response, the African Union established a Committee of Eminent Jurists to consider the case and make concrete recommendations for its resolution, giving priority to an African solution. In 2006, a Committee of Eminent African Jurists issued its report on the case, recommending that Senegal exercise jurisdiction, as a party to the Convention Against Torture, to try Habré with Chad’s cooperation. African Union, Report of the Committee of Eminent Jurists on the Case of Hissene Habre (2006).
The Committee of Eminent African Jurists also considered the establishment of an ad hoc internationalized criminal court. Finding the authority to create such a tribunal in Articles 3 and 4 of the Constitutive Act of the African Union, the committee recommended that any such body be composed of five judges from the highest courts of their countries. Id. at paras. 22-24. The jurists also recommended, in paragraph 35, that the African Court on Human and Peoples’ Rights be given competence to hear criminal cases – a discussion that is ongoing in Africa. [AfriqueJet]
Later in 2006, on the basis of the Committee’s report, the African Union directed Senegal to prosecute Habré. See African Union, Decision on the Hissene Habre Case and the Africa Union, Doc. Assembly/AU/3 (VII).
Committee Against Torture
In a 2006 decision regarding a complaint brought against Senegal by a victim of torture under the Habré regime, the UN Committee Against Torture (CAT) found that Senegal had failed to comply with its obligations under the articles 5(2) and 7 of Convention against Torture by failing to prosecute Habré and by refusing his extradition to Belgium. CAT, Guengueng et al. v. Senegal, Communication No. 181/2001, Decision of 19 May 2006. The Committee highlighted Senegal’s obligations, stating:
In accordance with article 5, paragraph 2, of the Convention, the State party is obliged to adopt the necessary measures, including legislative measures, to establish its jurisdiction over the acts referred to in the present communication. Moreover, under article 7 of the Convention, the State party is obliged to submit the present case to its competent authorities for the purpose of prosecution or, failing that, since Belgium has made an extradition request, to comply with that request, or, should the case arise, with any other extradition request made by another State, in accordance with the Convention.
Id., at para. 10.
European Parliament Resolution
Also in 2006, the European Parliament emitted a resolution, Impunity in Africa and in particular the case of Hissène Habré, calling on Senegal “to guarantee a fair trial to Hissène Habré, through is extradition to Belgium if there is not an African alternative, in accordance with the UN Convention against Torture” and calling on the African Union “to ensure that Senegal respects its international commitments as a State Party to the convention against torture.”
African Court on Human and Peoples’ Rights Decision
In 2009, the African Court on Human and Peoples’ Rights – in its first-ever ruling – held that it lacked jurisdiction to determine whether Senegal had violated its international obligations by adopting legislation allowing it to pursue the criminal charges against Habré. AfCHPR, Michelot Yogogombaye v. Senegal, App. No. 001/2008, Judgment of 15 December 2009. Senegal had not recognized the Court’s jurisdiction to receive individual complaints against it, as required by Article 34(6) of the Protocol establishing the Court.
ECOWAS Community Court of Justice Judgment
Habré turned to the Economic Community of Western African States (ECOWAS) Community Court of Justice to challenge the validity of Senegal’s ongoing interest in prosecuting him. In 2010, the ECOWAS Court held that Senegal’s prosecution of Habré in its ordinary courts would violate both the principle of non-retroactivity contained in Article 15 of the International Covenant on Civil and Political Rights and the Senegalese Constitution, because the Court found no basis in domestic law for Senegalese courts’ exercise of jurisdiction over international crimes. Hissein Habre v. Republic of Senegal, ECW/CCJ/JUD/06/10 of 18 November 2010 (original in French) (unofficial translation here). Rather, to avoid the problem of retroactivity, according to the court, Habré’s prosecution in Senegal would only be proper before a “special ad hoc procedure of an international character.” Id. The ECOWAS Court’s conclusion that Senegal lacked jurisdiction to prosecute acts of torture – which were already recognized as international crimes at the time of the Habré regime – has been criticized by legal scholars.
In 2011, the African Union picked up the ECOWAS Court’s recommendation, proposing the establishment of a special court; Senegal rejected the idea. [HRW] Following the election of President Macky Sall in March 2012, progress in the case – which had been stalled while Senegal both denied Habré’s extradition to Belgium and made no progress on his prosecution domestically – resumed.
Conviction in Chad
In 2008, Habré was convicted in absentia and sentenced to death in Chad. [Reuters; Jurist] The UN High Commissioner for Human Rights, among others, criticized the proceeding as failing to respect due process guarantees and urged Senegal not to return Habré to Chad for fear he would be tortured there. [OHCHR]
International Court of Justice Judgment
In July 2012, the International Court of Justice (ICJ) ordered Senegal to “take without further delay the necessary measures to submit the [criminal] case [against Habré for torture] to its competent authorities for the purpose of prosecution, if it does not extradite Mr. Habré.” ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, 20 July 2012, para. 121. In agreement with Belgium, the ICJ held that Senegal had breached the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by failing to pursue the charges against Mr. Habré, while also refusing to extradite him for prosecution. Questions Relating to the Obligation to Prosecute or Extradite, para. 106 et seq.
In August 2012, Senegal and the African Union entered into an agrement on the establishment of a special tribunal. [BBC; HRW] In December 2012, the Senegalese National Assembly adopted legislation creating the Extraordinary African Chambers. [HRW]
Comparison with other Internationalized Criminal Tribunals
Although the United Nations and a number of States have established special courts or chambers to prosecute individuals for crimes against humanity and other violations of international criminal law and international humanitarian law, the Extraordinary African Chambers is the first such body to be established within one State’s judiciary for the purpose of prosecuting another country’s former head of State, in exercise of its obligation to extradite or prosecute.
In the decades since the end of World War II, the international community has created various temporary criminal tribunals which have either been “international” in nature, or what is termed “internationalized” or “hybrid” courts – depending on whether they are stand-alone institutions or are incorporated into a State’s judiciary. These bodies are distinct from regular domestic courts in that they usually: are created by, or in cooperation with, an intergovernmental organization like the United Nations; exclusively apply international standards; and include judges from countries other than the one in which the court sits. Additionally, their jurisdiction is generally limited to a specific period of time corresponding to particularly intense periods of conflict or unrest involving widespread human rights abuses.
In some cases, such as in Senegal, Cambodia and Bosnia and Herzegovina, these tribunals have taken the form of special chambers within a State’s judiciary. In other instances, the United Nations has established international criminal tribunals that are independent of any domestic court system; these include the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone, and the Special Tribunal for Lebanon.
Unlike other international and hybrid courts, it is possible that the Extraordinary African Chambers may only prosecute a single individual: Hissène Habré.