Originally published on the CGS blog on July 27, 2015.
The trial of Hissène Habré, former President of Chad, which opened in Dakar, Senegal, on July 20 marks a new step in trans-national law. Habré will be tried in a specially constituted court created by a treaty between the African Union and the State of Senegal. The court is modeled on the statues of the International Criminal Court (ICC), but is to deal only with cases concerning Africans. It will be important to see if this new African court will be a one-time institution for the Habré trial or if it becomes a permanent institution of world law.
The ICC has been criticized by some African leaders as being overly focused on Africans. Arrests and arrest warrants have been issued nearly exclusively against Africans. However, Africa is the only continent where state institutions have totally disappeared (Somalia, Central African Republic, Libya) or where vast areas of a State are not under the control of the central government (the eastern provinces of the Democratic Republic of Congo and the northeast areas of Nigeria). In addition, there are a good number of African States where the court system is so under the control of the executive that “fair trials” are out of question.
Thus, if African leaders were reluctant to see the ICC take on new African cases, an “all-African” alternative had to be created, even if it is nearly identical in the types of crimes to be judged and the way that evidence is to be collected. The judges in Dakar have already interviewed some 2,500 persons even before the trial started.
Hissène Habré is a sad case of an intelligent man blinded by his quest for power and then for holding on to power. In this process, he destroyed large segments of ethnic groups he suspected of wanting power. He also had killed any potential rivals, even those who had shown no opposition. It is estimated that in his eight years of power, some 40,000 persons were killed, some in the military campaigns against ethnic groups, but also some 4,000 political figures killed individually in jails and specially-designed torture centers.
In his very last days in power in December 1990 as the forces of his general Idriss Deby were moving to overthrow him, he had 300 persons in jail killed as a last gesture. His very last gesture, however, was to take all the money available in the Treasury with him into exile in Senegal—money which has allowed him to live well and to contribute to the well being of Senegal political figures.
By 1990, one of Habré’s generals, Idriss Deby said, “Why not me?” and with some troops loyal to him overthrew Hissène Habré. Deby is still President of Chad and his troops are the most battle-tested of African armies, now busy helping the Nigerian army against Boko Haram on the Nigeria-Chad frontier.
Since 1990, Habré has lived a comfortable but low-profile life in Dakar. However, victims and their families from his years of rule have cried for revenge (or at least justice). Different avenues to bring Habré to trial have been used, especially a universal jurisdiction law of Belgium, which held that persons accused of certain crimes such as crimes against humanity, war crimes, systematic torture—no matter where committed—could be tried in a Belgium court. This Belgium law has since been revoked, but not before evidence on the Chadian case could be presented to the Belgium judges.
Evidence concerning torture and the killing of potential opponents by Habré’s security forces was carefully collected under the driving energy of Reed Brody of Human Rights Watch. Habré had friends among the governing elite of then President of Senegal Abdoulaye Wade, who protected him so that no trial could take place. However, with new President Macky Sall in power and the accumulation of evidence, the African Union and Senegal felt that something had to be done. Thus the special court was created and the trial began.
It is unlikely that new facts will be uncovered. Habré’s government was fairly open in its repression. The degree of active support of France and the US will probably be pushed under the rug. Nevertheless, the trial merits watching. There are other African dictators, some retired, some still in power. What impact will the trial and the court have on the rule of world law?
