پرسش و پاسخ در باره‌ی پرونده‌ی حسین حَبری

1. حسین حَبری کیست؟

2. چه اتهام‌هایی علیه او مطرح بود؟

3. محاکمه‌ی او چگونه پیش رفت؟

4. او به‌خاطر چه جرایمی محکوم شد و چه حکمی دریافت کرد؟

5. آیا به حکم اعتراض کرده، و اگر کرده چه فرایندی در پیش است؟

6. آیا قربانیان حق شرکت در محاکمه در ‌شعبه‌ها‌ی فوق‌العاده‌ی دادگاه آفریقا داشتند؟

7. به قربانیان غرامت اعطا شد؟

8. چرا دادگاه به جای چاد در سنگال برگزار می‌شود؟

9. چرا امکان محاکمه‌ی او در بلژیک وجود داشت؟

10. دادگاه در سنگال چه مراحل مختلفی را طی می‌کند؟

11. دیوان بین‌المللی دادگستری (ICJ) به چه ترتیبی در محاکمه دخالت کرد؟

12. چرا حسین حَبری در دادگاه بین‌المللی جزایی (ICC) محاکمه نمی‌شود؟

13. ‌شعبه‌ها‌ی فوق‌العاده‌ی دادگاه آفریقا چگونه عمل می‌کنند و حوزه‌ی صلاحیت‌شان چیست؟

14. آیا حسین حَبری تنها کسی است که در ‌شعبه‌ها‌ی فوق‌العاده‌ی دادگاه آفریقا محاکمه می‌شود؟

15. روند محاکمه در ‌شعبه‌ها‌ی فوق‌العاده‌ی دادگاه آفریقا چگونه در چاد منتشر می‌شود؟

16. بودجه‌ی ‌شعبه‌ها‌ی فوق‌العاده‌ی دادگاه آفریقا چگونه تأمین می‌شود؟

17. سازمان‌های غیردولتی چگونه به پیش‌رفت در پرونده‌ی حسین حَبری کمک کرده‌اند؟

1. Who is Hissène Habré?

Hissène Habré, born in 1942, was President of the Republic of Chad from 7 June 1982 until 1 December 1990. His single-party regime was characterised by numerous human rights violations, particularly against certain ethnic groups. He has been found to be responsible for thousands of political assassinations and systematic torture. Most of these crimes were committed by his secret police, the Documentation and Security Directorate (DDS). Because of the confidential nature of its activities, the DDS reported directly to him, as President of the Republic of Chad.

Pictures taken during an FIDH mission in Chad in 2001

2. What charges were brought against him?

Hissène Habré was brought before the Extraordinary African Chambers (EAC) within the Senegalese court system for crimes against humanity, war crimes and torture committed while he was president of Chad. On 5 February 2015, the EAC Prosecutor requested the indictment of Hissène Habré and referral of the case to the EAC Trial Chamber. On 13 February 2015, following nineteen months of examining the case, the investigating magistrates concluded that there was sufficient proof to try Hissène Habré for “crimes against humanity and torture as a joint criminal enterprise” and “war crimes as the superior authority.” [1]

The full charges brought against him were as follows:
 Culpable homicide, the widespread and systematic practice of summary executions and the kidnap of individuals and their subsequent disappearance and torture, constituting crimes against humanity perpetrated on civilian populations, the Hadjerai, the Zaghawa, opponents of the regime and the populations of southern Chad;
 Torture; and
 War crimes of culpable homicide, torture and inhuman treatment, illegal transfer and detention and threat to life and bodily harm.

3. How did the trial proceed?

The trial – which was governed by the Senegalese criminal procedure rules – lasted 56 days.

Habré and the three lawyers that he had selected to represent him refused to co-operate with the EAC and did not appear at the opening of the trial in July 2015, claiming that it was illegitimate. As a result, on the second day of the trial, the Trial Chamber assigned three court-appointed public defence lawyers to act as Habrés defence counsel during the trial. A 45-day recess was granted to allow the newly constituted defence team to prepare their arguments. When the trial re-opened in September 2015, Habré only attended when forced to do so by law enforcement officers, despite the fact that he was subject to a court order mandating his presence at the trial.

The presiding judge of the Trial Chamber was Mr. Gberdao Gustave Kam from Burkina Faso, a former judge with the International Criminal Tribunal for Rwanda (ICTR).

During the trial, 93 witnesses were heard. Witnesses testified on crimes committed in Chad at various periods of Habré’s reign, including attacks against the Hadjerai in 1987, the Zaghawa in 1989 and populations in the south of the country, as well as on the arrest and torture of political prisoners and the conditions and treatment that detainees and prisoners of war were subjected to. Expert witnesses also gave evidence on the historical and political context in Chad. A number of victims and survivors were heard, and their testimony can be seen as a decisive factor in the EAC Trial Chamber’s verdict. The testimony of one witness, a survivor of rape, was so powerful that it ultimately led to Habré’s conviction for crimes that he had personally committed.

The trial concluded after closing arguments were heard on 12 February 2016.

4. What crimes was he convicted of and what sentence did he receive?

On 30 May 2016, Hissène Habré was convicted of crimes against humanity, war crimes and torture by the EAC Trial Chamber. The conviction is broader than the initial indictment, and includes homicide, rape and sexual slavery, kidnapping and enforced disappearance, torture and cruel or inhuman treatment, as well as summary executions, which he either personally committed, or was found guilty of on the basis of command responsibility.

Habré was sentenced to life imprisonment. The EAC Trial Chamber determined this sentence by taking into account the gravity of the crimes, as well as his personal situation, and any aggravating or mitigating factors. [2]

5. Was the verdict appealed and, if so, what happens next?

On 10 June 2016, Habré’s court-appointed lawyers filed an appeal on his behalf, claiming that the length of the sentence was too severe as it failed to account for extenuating circumstances. The appeal trial, which was limited to points of law, started on 9 January 2017 and lasted four days. Habré was not present at all during the appeal trial. He is currently detained in a purpose built prison cell in Cape Manuel, Dakar.

The appeal verdict will be delivered by the EAC Appeals Chamber, presided by Wafi Ougadèye (a Malian magistrate), on 27 April 2017. On appeal, Habré’s conviction and sentence could be confirmed, reduced, or overturned. The decision of the Appeals Chamber will be definitive.

6. Were victims entitled to participate in the Extraordinary African Chambers proceedings?

NGOs, including FIDH, have conducted significant advocacy work to ensure a role for victims in the EAC proceedings. Victim participation in trials is a key aspect of the fight against impunity. Victims should play an effective role in the prosecution and conviction of the perpetrators of the crimes, so that court decisions have a real impact on the communities affected.

Article 14 of the EAC Statute allows victims to join the proceedings as civil parties and thus to participate in full, through a legal representative. The system of participation is therefore similar to that of the Extraordinary Chambers in the Courts of Cambodia. Victims who lack the resources to pay a legal representative were also able to benefit from legal aid. During the trial, there were two groups of victims, who were represented by a pool of lawyers from Senegal, Chad and other countries, including France. Each pool of lawyers received funding from the EAC, as did Habré’s court-appointed defence team.

7. Were victims granted any reparations?

Under Article 27 of the EAC Statute, victims may be granted “traditional” reparations (i.e. restitution, compensation and rehabilitation). Reparation may be awarded on an individual or collective basis, even if the victim has not participated directly in the proceedings. Article 28 of the EAC Statute envisages a Victims Reparations Fund, designed to finance reparations granted to the victims of crimes within the Chambers’ jurisdiction, and their beneficiaries. This fund should receive voluntary contributions from governments, international institutions, NGOs and others willing to support victims. However, for the moment, this fund has not been formally established and there is a lack of willingness to finance reparations.

On 29 July 2016, the EAC Trial Chamber granted the civil party victims reparations of up to 20 million West African Francs ($33,898) each. The victims’ have appealed the decision, particularly regarding the fact that their request for collective reparations was not granted, and that eligibility requirements for reparations for victims who have not directly participated in the trial were considered to be too stringent. The EAC Appeals Chamber will also issue a final decision on reparations on 27 April 2017.

8. Why are the proceedings taking place in Senegal instead of Chad?

In October 2000, together with the Association of Victims of Crimes and Political Repression in Chad (AVCRP), 17 victims lodged a complaint against Hissène Habré in Chad. The investigating judge rejected the complaint alleging the existence of an order stating that the case did not fall within jus commune. The civil parties challenged the constitutional status of this order. Despite a Constitutional Court ruling in 2001 that the order was unconstitutional, the case went no further because the investigating judge considered that he had insufficient information to continue his investigations.

When Idriss Déby came to power in 1990, Hissène Habré fled Chad and settled in Senegal, where he has lived ever since; as a result, legal action was launched against him in his new country of residence.
In August 2008, Habré was sentenced to death in absentia by a Chadian court following a summary trial for his alleged role in supporting rebels who had attempted to take N’Djamena and seize power in February 2008.

9. Why could he have been tried in Belgium?

In 2000, three complaints combined with claims for criminal indemnification were filed in Belgium against Hissène Habré for crimes against humanity, torture, barbaric acts and murder. The complaints were filed by Belgian nationals of Chadian origin and led to the opening of an investigation, on the basis of universal or extra-territorial jurisdiction enabling national courts to try the alleged perpetrators of serious crimes, irrespective of where the crime was committed and the nationality of the perpetrators or victims.

In 2005, following investigations conducted in Chad, the Belgian judge Fransen issued an international warrant for the arrest of Hissène Habré. An extradition request was sent to Senegal where Hissène Habré was living. Ten days after his arrest, the Dakar Court of Appeal declared on 25 November 2005 that it was not competent to rule on extradition request. Hissène Habré was then released. The Senegalese Foreign Minister nevertheless stated that he would be kept in Senegalese territory until the African Union decided which court was competent to deal with the case.

10. What are the various stages of the proceedings in Senegal?

There were three main stages in the proceedings.

Stage 1: On 25 January 2000, seven Chadian victims and the ACVRP filed a complaint against Hissène Habré with the Chief Investigating Judge of the Dakar Regional Court. After hearing the victims, the investigating judge decided to charge Hissène Habré with complicity of torture. On 18 February 2000, Hissène Habré’s lawyer requested that the proceedings be annulled on the basis that the court had no jurisdiction, as the crime of torture was not defined in the Senegalese Criminal Code. On 4 July 2000, the Court of Appeal declared the entire proceedings null and void for lack of competence. Following an appeal by the civil parties, asserting that torture is recognised as a universal crime by the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which has been ratified by Senegal, the Court of Cassation rejected the appeal and declared that the Senegalese courts had no jurisdiction.

Stage 2: Following pressure from the African Union, which asked Senegal to ensure it was in a position to try Hissène Habré, notably during its seventh ordinary session in July 2006, [3] the Senegalese National Assembly passed a law on 31 January 2007 making it possible to investigate cases of genocide, crimes against humanity and war crimes, even if committed abroad. The case against Hissène Habré could therefore resume. On 8 April 2008, the Senegalese Constitution was amended, introducing an exception to the principle of non-retroactivity of criminal law for the crime of genocide, crimes against humanity and war crimes, in accordance with the International Covenant on Civil and Political Rights. On 16 September 2008, 14 victims, supported by a group of lawyers including members of FIDH’s Legal Action Group (LAG), filed a new complaint with the Public Prosecutor at the Dakar Court of Appeal against Hissène Habré, for torture, crimes against humanity and complicity of such crimes.

Stage 3: In 2008, Hissène Habré asked the Community Court of Justice of the Economic Community of West African States (ECOWAS) to declare that Senegal had violated the principle of non-retroactivity of the criminal law and the principle of fair trial. In the meantime, while Senegal indicated a willingness to open an investigation, discussions about the budget of such proceedings, initiated by the African Union, the European Union, the United States and Senegal, halted all legal progress. On 18 November 2010, when the donors willing to finance the trial agreed the size of the budget, the ECOWAS Court of Justice decided that Hissène Habré must be tried by a special or ad hoc court of international nature.

The process of setting up the Extraordinary African Chambers took a new turn on 30 May 2011, when President Wade walked out of the negotiations between Senegal and the African Union on the finalisation of the Statute for the Chambers.

With the process again blocked, Belgium reiterated its extradition request, but received no response. Rwanda then announced that it was in a position to organize Hissène Habré’s trial, but this option was rejected, including by the African Union.

After the elections of Macky Sall as President of the Republic in April 2012, an agreement was finally reached on 22 August 2012 between the African Union and the Senegalese authorities, creating the Extraordinary African Chambers within the Senegalese courts, responsible for conducting trials involving crimes committed during the Habré regime in Chad.

11. In what way did the International Court of Justice (ICJ) intervene in the proceedings?

In 2009, Belgium asked the ICJ to consider the matter of Senegal’s obligation to prosecute or extradite Hissène Habré. While waiting for a decision on the merits and following President Wade’s announcement that Habré’s house arrest would be ended, Belgium asked the ICJ to direct Senegal, in the form of precautionary measures, to take the necessary steps to ensure that Hissène Habré remained in Senegalese territory. Following Senegal’s assurance that he would be kept within its territory, the Court decided that it should reject the request. On 20 July 2012, the Court handed down its ruling on the merits of the case, deciding unanimously that the Republic of Senegal had not fulfilled its international obligations and that it should: “without further delay refer the case of Mr Hissène Habré to its competent authorities for the purpose of prosecution, unless it extradites him”. [4] 

12. Why is Hissène Habré not being tried by the International Criminal Court?

Although Chad is a State Party to the Rome Statute, the International Criminal Court (ICC) is not competent to judge crimes committed before its Statute came into force, i.e. before 1 July 2002. As Chad ratified the Rome Statute on 1 November 2006, the ICC is competent to judge war crimes, crimes against humanity and genocide committed in its territory or by one of its citizens only after that date. The crimes committed under the Habré regime, between 1982 and 1990, do not therefore fall within its jurisdiction.

Furthermore, the ICC is complementary to the national courts, which have the priority for investigating and prosecuting perpetrators of war crimes, crimes against humanity and genocide committed on their territory (article 1 of the ICC Statute). The ICC has jurisdiction when a State Party has neither the capacity nor the willingness to investigate and prosecute such perpetrators.

13. How do the Extraordinary African Chambers operate and what is the scope of their jurisdiction?

Established on 22 August 2012 by an agreement between the African Union and the Senegalese authorities, the Extraordinary African Chambers within the Senegalese court system comprise an Extraordinary African Investigation Chamber within the Dakar Regional Court (Tribunal Régional Hors Classe), an Extraordinary African Indictments Chamber at the Dakar Court of Appeal, an Extraordinary African Assize Chamber at the Dakar Court of Appeal and an Extraordinary African Assize Appeal Chamber at the Dakar Court of Appeal.
The Investigation Chamber includes four investigating judges of Senegalese nationality and two deputies investigative judges. The Indictment Chamber comprises three judges of Senegalese nationality and two deputies. International judges sit at the level of the Assises Chamber and the Assises Appeal Chamber.

Each of them comprises two judges of Senegalese nationality, two deputies judges of Senegalese nationality and a Presiding Judge who is a national of another African Union member state. Finally, the Prosecutor-General and his two deputies are of Senegalese nationality. The Senegalese judges were elected on 22 January 2013 at the first meeting of the High Council of the Judiciary in Senegal.

The Extraordinary African Chambers have jurisdiction to prosecute and judge the main perpetrators of crimes and serious violations of international law, international custom and international conventions ratified by Chad, committed on Chadian territory between 7 June 1982 and 1 December 1990, particularly crimes of genocide, crimes against humanity, war crimes and torture. Under article 16 of the Statute, the Extraordinary African Chambers apply first the Statute and, for cases not covered, they apply Senegalese law.

14. Is Hissène Habré the only person who can be tried by Extraordinary African Chambers?

The competence of the Extraordinary African Chambers is not limited to Hissène Habré. It is only limited in terms of time and location. Their aim is to prosecute the main – or “most responsible” – perpetrators of the crimes over which they have jurisdiction. Thus, five other persons were charged on 2 July 2013: Saleh Younous and Guihini Korei, two former heads of the Documentation and Security Directorate; Mahamat Djibrine, known as “El Djonto”, one of the “most feared torturers in Chad”; Zakaria Berdei, former special security advisor to the presidency; and Abakar Torbo, former director of the prison service. However, these individuals were not brought before the EAC. Saleh Younous and Mahamat Djibrine were both convicted in March 2015 before the Chadian courts, in criminal proceedings resulting from complaints filed by victims in Chad. [5]

15. How are the Extraordinary African Chambers proceedings being communicated in Chad?

Article 15.3 of the Statute of the Extraordinary African Chambers stipulates that the Administrator responsible for non-judicial matters can agree to inform and raise the awareness of African and international public opinion of the work of the Chambers. The Statute also allows for hearings to be filmed, recorded and broadcast.

The entire trial was recorded, subject to some technical issues, and streamed live on the Internet. It was also broadcast on Chadian national television, despite statements from then current President of Chad that it would not be broadcast live on television.

To make the trial more accessible to the Chadian people, the EAC also undertook awareness-raising programmes in both Chad and Senegal. A consortium of Senegalese, Belgian and Chadian non-governmental organisations selected by the EAC has set up training and information workshops, organised public debates, trained journalists and developed communication tools, including a website and documents explaining the trial.

16. How are the Extraordinary African Chambers funded?

The Chambers’ funding has been the subject of much debate. The Extraordinary African Chambers have a budget of 7.4 million euros. The international donors are Chad (with a contribution of two billion CFA francs – around three million euros); the European Union (two million euros); the Netherlands (one million euros); the African Union (one million dollars); the United States (one million dollars); Germany (500 000 euros); Belgium (500 000 euros); France (300 000 euros); and Luxembourg (100 000 euros). The EAC’s total budget is considerably lower than any other ad hoc international criminal tribunal.

17. How have NGOs helped achieve progress on the Habré case?

NGOs, such as FIDH and its member organisations in Chad, the Chadian Human Rights League (LTDH),the Chadian Association for the Promotion and Defence of Human Rights (ATPDH), and in Senegal, the National Human Rights Organisation (ONDH),the African Assembly for the Defence of Human Rights (RADDHO), as well as other organisations like the Association of Victims of Crime and Political Repression in Chad (AVCRP), have been supporting the prosecution against Hissène Habré, from the very beginning. An international committee for the fair trial of Hissène Habré, comprising the aforementioned organisations and others, such as Human Rights Watch, was set up to coordinate efforts to combat impunity and support victims of the Habré regime.

Their support has come in various forms: missions of inquiry and evidence gathering in Chad, advocacy and awareness-raising missions, particularly in Chad and Senegal, legal representation of victims before the Senegalese and Belgian courts, support for victims before the ECOWAS Court of Justice, observation of proceedings at the International Court of Justice at the Hague, protection of Chadian human rights defenders, advocacy actions at the bodies of the United Nations, member states of the African Union, the European Union and other interested states.

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