An African Union-backed attempt to try former Chadian President Hissène Habré on charges of crimes against humanity had a rocky start after Habré and his lawyers refused to participate in the proceedings.
Habré, who came to power in 1982 and ruled with U.S. and French support, is accused of killing and torturing thousands of people during his eight years as Chad's president. He was ousted in 1990 and has lived in Senegal since then. But in 2013, after much stalling, Senegal indicted Habré, and he is being tried there on the principle of universal jurisdiction, which allows national courts to prosecute crimes committed abroad.
Dubbed the "event of the year in the field of international criminal law," it's the first time a case based on the principle of universal jurisdiction is being brought to trial in Africa, the culmination of two decades of campaigning by Habré's victims and human-rights groups to bring him to justice. But that campaign might have to wait at least a little longer.
Bringing African leaders accused of atrocities to trial outside the countries they led has been a legal and political challenge. The International Criminal Court, which was set up to handle circumstances such as these, has a checkered reputation on the continent, as David Graham has reported:
Opinion about the ICC has shifted in Africa since it was chartered in 1998. Initially, it had strong support—particularly in the aftermath of the Rwanda genocide, [Brookings Institution scholar John Mukum] Mbaku has written, when “there was an urgent need in Africa to squarely confront impunity and the mass violation of human rights.” Since then, some governments and thinkers have apparently revised their opinions.
One reason is that every indictment issued by the ICC has been in Africa. The court’s jurisdiction is somewhat hobbled by the non-participation or non-cooperation of many countries, most notably the United States. But the fact remains that Africa has been the focus of a court based in Europe, and given that memories of colonialism are in some places still fresh and very raw, that raises hackles.
Add to that the fact that while the court can mete out an abstract sort of justice, it has little power to make things right for victims. It’s all well and good to lock up a perpetrator, but it doesn’t do much to restore the damage. When those trials happen in The Hague, far away from where the crimes were committed, there may be little chance for many victims to take part in the proceedings anyway.
The trial of Hissène Habré has been held up as a model for how these challenges can be addressed. However, proceedings at the Extraordinary African Chambers, as the African Union-backed special court in Senegal is officially known, came to a halt last week, soon after they began on July 20. Habré, who is now 72, has called the court "illegitimate and illegal," and both he and his lawyers refused to participate. The next day, proceedings were suspended until September to give the former Chadian leader's court-appointed lawyers time to prepare for the trial, or, in the words of the chief prosecutor, to “defend the interests of justice.” But as Thierry Cruvellier wrote in The New York Times, "when court officials and lawyers invoke the interests of justice, it’s usually when they have run out of other arguments."
That view is challenged by Reed Brody, counsel and spokesman for Human Rights Watch, who said while the delay was "a disappointment for victims ... 45 days is really not going to change very much."
"It's complicated in the sense that Habré doesn't want these lawyers," said Brody, who initiated the case against the former Chadian leader. "And that puts us in sort of uncharted waters legally, because Habré will certainly refuse to talk to his lawyers, who in a sense will be acting contrary to his instructions. ... And, in a sense, it gives Habré two bites at the apple: He can continue his guerrilla attack on the court, while at the same time he will have experienced lawyers who will be representing him the right way and challenging the piece of evidence. In a sense, that is part of the game. This is the way trials happen."
But Cruvellier, who has covered war crimes tribunals in Cambodia, Rwanda, and other places, wrote in The New York Times that the Habré case "suffers from the same types of deficiencies that have plagued other international criminal trials." For example, he says, Idriss Déby, Chad's president since Habré's ouster, will not be judged in Senegal even though he was Habré's army commander in chief. Nor will France or the U.S., which backed the former Chadian leader. Chad, the U.S., and France are all funding the Senegalese court that is judging Habré.
"And so naturally," Cruvellier wrote, "Mr. Habré’s defense strategy rests on denouncing the court for being biased and partial, and calling it a front for Western governments and nongovernmental organizations."
It's unclear if that strategy will work. Brody says this case is different from past international trials of African leaders that have been met with skepticism.
"What is remarkable about this case is that the victims, the survivors have been the architects, the driving force behind this case, and people see that," he says. "In this case, the optics here, the way the case has been played out very publicly, particularly in French Africa ... people have been following the saga of the victims.
"These people are seen as the protagonists. It's widely seen as, these are the people who have brought Hissène Habré to court. And I think that creates in many people a very different way of looking at the case than when it is the Security Council or an international prosecutor. It makes it much harder for Hissène Habré to paint himself as a victim—though he's trying very hard—when you have real victims who are across from him."