Analysis: Ex-dictator Habre’s trial is landmark for international jurisprudence

By Simon Allison 4 July 2013

Hissene Habre’s bloody rule in Chad ended 22 years ago. Since then, he’s been laying low in Dakar, Senegal, while calls for him to be held accountable have grown louder and more insistent. Finally, those calls have been answered and Habre was arrested this week. He’ll be tried in a special court under a revolutionary legal principle in what will be a pioneering and likely precedent-setting case. By SIMON ALLISON.

The detention and trial of Hissene Habre is not getting the attention it deserves. It may be 22 years too late, but the former Chadian dictator was finally arrested earlier this week by a Senegalese paramilitary unit (slight overkill, perhaps, given that he’s an old man in a foreign country whose whereabouts were never in doubt), and will have to answer for the gross human rights violations and mass executions that were documented during his reign.

The wheels of justice may turn slowly, but turn they do – and his trial represents a major landmark in international jurisprudence. For the first time in history, a former head of state will be prosecuted for serious human rights violations by domestic courts in another country.

Legally, this whole concept is revolutionary. Domestic, or national, courts are usually bound by very specific jurisdictions, able to prosecute only certain types of crimes that happen in certain areas. This makes sense. Why should a South African judge, for example, prosecute someone for crimes committed in Azerbaijan under Azerbaijani law? That, surely, should be a matter for the Azerbaijani judiciary.

But there are some crimes that are so grave that they really deserve to be prosecuted anywhere that they can be. This is the guiding principle of the International Criminal Court, which, under specific parameters and with a few checks and balances in place, gives itself the right to try anyone accused of genocide, war crimes or crimes against humanity.

This is also the principle behind the concept of “universal jurisdiction” – a legal notion adopted in a very few countries which “allows national courts to try cases of the gravest crimes against humanity, even if these crimes are not committed in the national territory and even if they are committed by government leaders of other states” (definition as per the Global Policy Forum).

Senegal, although not the first country to adopt universal jurisdiction for its courts (that was Spain), will be the first to use it in a trial – and Hissene Habre is its first target.

It couldn’t happen to a more deserving man. Habre’s reign in Chad was relatively brief. He came to power in a coup 1982, and was deposed in a coup in 1990, but his eight years in charge were exceptionally bloody. In 1992, a Chadian truth commission estimated that his government had murdered around 40,000 people in a bid to maintain control. This figure should be treated with some caution, as Chad’s new rulers had a strong incentive to make the old regime look bad, but there’s no question that Habre’s victims numbered in the thousands. In 2001, Human Rights Watch discovered files abandoned by Habre’s notorious political police force which revealed the names of 1,208 people who were executed or died in prison, as well as 12,321 victims of gross human rights violations. Habre’s men were particularly inventive when it came to torture – one of their trademarks was to force a prisoner’s mouth around a vehicle exhaust, and then fire up the engine.

But regardless of all this, Habre has been sitting pretty in exile for the last 22 years (he was seen as “discreet, pious and generous” by his neighbours, according to AFP). And he may have done so forever were it not for a long, draining and often seemingly hopeless campaign to bring him to justice launched by victims’ groups and supported by international rights organisations, particularly Human Rights Watch – and for the new-fangled concept of universal jurisdiction, which allowed Senegal’s new government to find a legally and politically acceptable way to prosecute him.

Previous Senegalese governments have been more accommodating of Habre. It was President Abdou Diouf who granted Habre safe harbour in Dakar, and President Abdoulaye Wade who consistently frustrated international attempts to either extradite him or facilitate a prosecution in exile. But when Wade lost power to Macky Sall, Habre lost his principal protector – and Sall has wasted little time in complying with African Union demands to resolve the situation.

Sall established the Extraordinary African Chambers, a special, one-off criminal court whose sole mandate is to investigate and prosecute Hissene Habre. There’s a chance that the court’s prosecution could extend to some of Habre’s chief lieutenants, but it’s a slim one: this is essentially an entire judicial body dedicated to the trial of one man. The judges will be mostly Senegalese, with some appointed by the African Union Commission; the presiding judge, however, will be from another African state.

Preliminary investigations by the new court revealed that there’s more than enough evidence to lay charges and detain Habre, a task duly completed by that paramilitary unit. At this point, Habre is expected to stay in custody for the duration of the predicted 15-month pretrial investigation, the seven-month trial, and the five-month appeals process.

If he’s convicted, Habre will spend the rest of his life in prison – and universal jurisdiction will have claimed its first major scalp. It could be the first of many. DM

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Photo: Former Chad President Hissene Habre (R) raises his fist in the air as he leaves a court in Dakar escorted by a Senegalese policeman November 25, 2005. Senegal’s Appeals Court declined to decide whether Habre should be sent to Belgium to face torture and political killings charges during his rule, saying it was “not competent” to do so. REUTERS/Aliou Mbaye


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