Now to make this extraordinary court, ordinary
11 February 2016
The Extraordinary African Chambers (EAC) are aptly named. This court was created by the African Union (AU) and Senegal in 2012, specifically to try former Chadian president Hissène Habré and his cronies for atrocities allegedly committed during his time in office between 1982 and 1990.
When he was dragged into the dock last July – very much against his will, because he does not acknowledge the court’s jurisdiction – Habré became the first former (not to mention incumbent) African head of state to go on trial for international crimes before an AU court.
The Habré case has been broadcast live on Senegalese TV and beyond. In about 60 days of hearings so far, Senegal, Chad, other African countries and the world have gained a vivid insight into the gruesome modus operandi of a nasty African dictator – and by extrapolation perhaps, of many others, whose exploits have never been exposed to such glaring light and will probably never be.
Habré stands accused of war crimes, crimes against humanity and torture. He is believed to have killed about 40 000 Chadians during his eight years in office. Some 40 000 surviving victims are being directly represented in court and 92 witnesses and experts have recounted his fierce repression.
Their lawyers have invoked the ghosts of Adolf Hitler and Pol Pot to try to capture the essence of Habré’s reign of terror. Apart from mass murder and torture, often in several secret prisons around the country, his regime also sexually abused women. Four of them have testified that they were sent to the desert north of Chad in 1988 as sexual slaves for Habré’s army. Witnesses have also described how corpses were kept rotting in jail. Forensic experts confirmed the existence of mass graves.
The main problem in convicting heads of state (past and present) for such crimes is to prove their personal complicity. The task of Habré’s prosecutors was considerably simplified by a treasure trove of evidence that the American law professor Reed Brody – now also legal counsel for Human Rights Watch – stumbled across in 2001.
He visited a former detention centre of Habré’s feared secret political police force – the Direction de la Documentation et de la Sécurité (DDS) – in N’Djamena and found thousands of documents that conclusively showed that the DDS reported directly to Habré.
In 1984, for example, the International Committee of the Red Cross (ICRC) called for release of Libyan prisoners (Libya was then at war with Chad) who were being treated in a hospital in Chad.
Habré himself annotated this demand, according to a handwriting analysis commissioned by Swiss lawyer Alain Werner, among those representing the victims. ‘Now no prisoner of war may leave the prison, except for death,’ Habré chillingly ordered.
Whatever the verdict of the judges, expected to be delivered in May – and it is hard to see how they can avoid conviction and the life sentence that the prosecutors demand – the Habré case has been hailed as a milestone, or even a turning point, for justice in Africa.
Apart from the uniqueness in the AU bringing one of its own to trial for the worst atrocities, the Habré case has been remarkable in giving victims their day in court. This has been very clearly a case of victims’ justice. It was their agitation through African civil society – strongly supported by Brody and Human Rights Watch – which focused pressure on the AU and on Senegal to put Habré in the dock.
Very symbolically, the victims’ lead lawyer, Jacqueline Moudeïna, still has shrapnel in her leg from 2001, when one of Habré's security bosses, appointed police chief in Déby’s post-Habré government, had a grenade thrown at her. Moudeïna’s team represents 4 435 civil parties here, and has an equal voice in the trial to the prosecution and the defence.
Though it took a long time to respond to the growing international pressure to mount this trial, the AU is now showcasing it enthusiastically as an icon of Africa’s commitment to justice for all; built on finding African solutions to African problems.
It has presented the case as a counter to suggestions that its vociferous opposition to the International Criminal Court’s (ICC’s) indictments of incumbent Presidents Omar al-Bashir of Sudan and Uhuru Kenyatta of Kenya, was meant to put African heads of state beyond the reach of criminal law.
The AU has offered this trial as an alternative model of how to mete justice for heads of state in Africa – that is, only after they have left office. Presumably, though, the AU would intend such justice to be generally swifter than it has been in Habré’s case.
After being toppled by his army chief Idriss Déby in 1990, he lived for over 20 years as a free man and a guest of the Senegalese government. He was only put under house arrest in 2005, where he remained until his formal pre-trial detention by the EAC in 2013. Had it not been for Senegal’s new president, Macky Sall, who decided to respond to the growing international pressure and arrest him, this trial would likely not have happened.
Werner, the Swiss lawyer, said the EAC was a ‘UFO’ when it first emerged: no one knew what it was or what to make of it. Now, after many months of testimony, it has been identified as an instrument that has undoubtedly brought some justice to one corner of the continent. But has it also demonstrated that this concept has wider application and that the arm of criminal justice in Africa is long enough to deter future atrocities? Given the considerable attention it has received, other Habrés or potential Habrés, in other African capitals, have presumably taken note.
And, ironically, though the AU has, as mentioned, offered the EAC as a better model of justice than the ICC, it theoretically presents a greater threat to some leaders. That is because the jurisdiction of the ICC only stretches back to its founding in 2002, whereas, as we have seen, the EAC has reached back as far as 1982.
So it is possible to imagine a similar court, for instance, probing the Gukurahundi massacres in Matabeleland by the Zimbabwe government during that same period.
Which is probably why those who have committed such crimes, will surely resolve even more strongly, now, to remain in office until they die. Zimbabwe’s Robert Mugabe himself told the AU summit last month; ‘I will still be there until God says come…’
And his long-time guest, Mengistu Haile Mariam of Ethiopia, is presumably hoping that if God does not call him first, Mugabe’s successor will be equally hospitable and will not send him home to face trial. The ICC, though, offers more of a deterrent than the EAC model, at least in theory, since its indictees face the prospect of being arrested while in office.
Presidency-for-life surely remains the best strategy, though, and al-Bashir also seems to have embarked upon it, at least judging by his dubious re-election last year, which even the AU could not bring itself to endorse.
Jemima Njeri, an international criminal law expert at the Institute for Security Studies (ISS), agrees the ICC is theoretically a better deterrent. 'But under the circumstances and given that the AU is pursuing the immunity clause, this court [the EAC] sends a message to heads of states that it could happen to them once [they’re] out of power. I think it’s a good thing that the AU established this court, despite the many years that lapsed since the crimes were committed. It sends a message to persons like al-Bashir that however long they stay in office, the long arm of justice may catch up with them at some point.'
So, if the EAC trial has undoubtedly been a victory for justice in Africa, it might be too soon to call it a milestone or turning point. For that to be true, the AU and the continent need to take up the cause of justice much more vigorously in whatever court: whether international, continental or national.
The demand for such justice clearly still exceeds the supply, to put it mildly. Many leaders still have much blood on their hands. But even if these leaders never get their day in court, perhaps the stirrings of international criminal justice represented by the EAC, will be some deterrent to those who have yet to commit their crimes.
This article first appeared in ISS Weekly, the online newsletter of the Institute for Security Studies.