From being forcibly dragged into the courtroom in the Extraordinary African Chambers in Dakar, Senegal, last July, to finally facing justice at the hands of Senegal the African Union, the journey to conviction of former Chadian leader Hissene Habré represents a “significant moment” for international criminal law.
On 30 May 2016, Habré was convicted by the Chamber of both war crimes and crimes against humanity in relation to his rule of Chad between 1982 and 1990. Following lengthy delays, and a sustained effort from victims and human rights groups, the Extraordinary African Chambers was created in 2013; it was a joint effort from Senegal, where Habré was living after the fall of his regime, and the African Union. Its purpose, as outlined by its constitutive instrument, is “to implement the decision of the African Union concerning the Republic of Senegal’s prosecution of international crimes committed in Chad between 7 June 1982 and 1 December 1990”. This time period spanned the entirety of Habré’s rule over the former French colony.
Following a nineteenth month investigation, Habré was charged with crimes against humanity, torture and war crimes. He was charged on the basis of individual criminal responsibility for the direct commission of rapes, as well as a member of a joint criminal enterprise which perpetrated crimes against humanity. He was also charged with war crimes on the basis of command responsibility.
The Chamber found that Habré, by virtue of his participation in a joint criminal enterprise, was guilty of crimes against humanity, consisting of the underlying crimes of murder, summary executions, forced disappearances, torture and cruel and inhuman acts (Le Parquet Général contre Hissein Habré (Summary of Judgment) (Extraordinary African Chambers) 30 May 2016, Part E) (please note that the summary of judgment is only available in French). Whilst noting that the crimes of rape, sexual violence and slavery fell outside the common criminal purpose of that enterprise, which was to repress any and all opposition to his rule, the Chamber nonetheless found that they constituted a foreseeable risk willingly undertaken by Habré. He was therefore found guilty of these crimes under the controversial ‘third category’ of joint criminal enterprise, where liability is based on the foreseeability and the voluntary taking of a risk that a crime outside the common enterprise will be carried out. The Chamber noted that his contribution to the enterprise was not only important, but essential and decisive (Summary of Judgment, ). He was further found guilty, through individual criminal responsibility, of ordering executions, as well as committing rape and torture against Khadija Hassan Zidane, a prisoner who was directly abused by Habré. These acts further comprised underlying acts of crimes against humanity.
The Chamber further concluded that Habré was liable through superior-subordinate relationship responsibility of war crimes, consisting of murder, cruel and inhumane treatment, illegal detention and torture.
In considering Habré’s sentence, the Chamber noted several extenuating circumstances, including Habré’s age and that he was a good father and family member. However, in light of the “extreme gravity and extent” of the crimes committed by Habré, his central role over the frameworks through which they were committed and the absolute contempt in which he held the Chamber, the Chamber (perhaps appropriately) noted the extremely limited weight to which it accorded these factors (Summary of Judgment, ).
The Extraordinary African Chambers were created through agreement by Senegal and the African Union, but are constituted and function within the Senegalese judiciary. The conviction therefore represents not only the first time a former Head of State has been tried and convicted in another State, but also the first universal jurisdiction case in Africa.
Universal jurisdiction allows domestic systems to prosecute crimes of sufficient gravity, even without any jurisdictional nexus to the accused, victims or geography of the crimes.
Whilst notable for its employment of the somewhat controversial doctrine of joint criminal enterprise, the judgment of the Chamber represents an important development for international criminal law. Specifically, it is an important development for African countries, being the first time a case based on universal jurisdiction has resulted in a trial. Human Rights Watch considers that:
[U]niversal jurisdiction is an important safety net to ensure that suspects of atrocities do not enjoy impunity in a third state when they cannot be prosecuted before the courts of the country where the crimes were allegedly committed or before an international court.
Australia, whilst recognising and strongly supporting universal jurisdiction as an “important complementary mechanism in our collective system of criminal justice”, has noted the primacy that territorial and national jurisdiction should take in relation to the prosecution of these crimes. Nonetheless, Australia has legislated to ensure universal jurisdiction over genocides, crimes against humanity and war crimes (Criminal Code Act 1995 (Cth), Division 268) (“Criminal Code”) and torture (Criminal Code, Division 274). All offences are subject to “unrestricted category D jurisdiction”, meaning they apply regardless of whether the offending conduct was committed in Australia (Criminal Code, section 15.4). Slavery is criminalised under Division 270 of the Criminal Code, and section 270.3 gives Australia jurisdiction over the offence regardless of the location of the perpetrator at the time of the offence. Piracy is criminalised under Part IV of the Crimes Act 1914 (Cth), regardless of any connection to Australia.
Notwithstanding the International Criminal Court’s lack of temporal jurisdiction over the atrocities committed in Chad, the successful prosecution of a former African leader within Africa for international crimes is also noteworthy considering the criticism that has been levelled at the ICC in relation to the inappropriate targeting of African countries.
Almost two weeks after the Chambers rendered its judgment, Habré’s lawyers filed an appeal against the former leader’s life sentence. Unfortunately, that appeal process is not expected to conclude until at least April 2017.
Regardless of the politics that inevitably follow the work of international criminal tribunals and courts, and the inherent length of international criminal trials, this first step towards successful prosecution of crimes on the basis of universal jurisdiction is a positive and historical step, both for Africa and the corpus of international criminal law. Most importantly, it represents a step towards justice for the victims of a horrific and inhumane political regime.
Alexis Hedger is Assistant Editor of the ILA Reporter.