- 12. How will the Extraordinary African Chambers make sure that the proceedings are well known in Chad?
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 is thought to have been responsible for thousands of political assassinations and systematic torture. Most of these crimes are said to have been 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 are being brought against him?
On 2 July 2013, Hissène Habré was brought before the Extraordinary African Chambers (EAC) within the Senegalese Courts for crimes against humanity, war crimes and torture, allegedly committed while he was president of Chad.
On 5 February 2015, the Office Public Prosecutor before the of the EAC requested the indictment of Hissène Habré and referral of the case to the Trail Chamber of the EAC. 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.” 
The full charges brought against him are 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 limb.
3. Why is he being tried 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.
4. 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.
5. 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 , 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.
6. 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”. 
7. 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.
8. How do the Extraordinary African Chambers function and what is the realm of their competences?
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 are competent 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.
9. 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 perpetrators of the crimes for which they have competence. 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.
10. Are victims entitled to participate in the Extraordinary African Chamber proceedings?
NGOs, including FIDH, have done significant advocacy work to ensure that the victims have a specific role and can participate in the proceedings of the Extraordinary African Chambers. 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 Chambers’ Statute enables victims to join the proceedings as civil parties and thus to participate in full through a legal representative. The participation regime is therefore similar to that of the Extraordinary Chambers in the Courts of Cambodia3.
The Chambers may decide, in the interests of justice, to organize groups of victims represented by one or more lawyers. The victims may also benefit from legal aid, if they do not have the resources to pay a legal representative.
11. Can victim obtain reparations?
Before the Extraordinary African Chambers, victims may have access to the traditional forms of reparation, ie restitution, compensation and rehabilitation, as provided for under article 27 of the Statute. Article 28 set up a fund for victims of crimes within the Chambers’ jurisdiction, and their beneficiaries. This fund should receive voluntary contributions from governments, international institutions, NGOs and other willing to support victims. Reparation may be awarded on an individual or collective basis, even if the victim has not participated directly in the proceedings.
12. How will the Extraordinary African Chambers make sure that the proceedings are well known 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. Furthermore, in November 2013, the Chadian and Senegalese ministers of justice expressed their common wish that the hearing be broadcast on radio and television. 
In April 2014, however, the National Audiovisual Regulatory Council for Senegal (Conseil national de régulation audiovisuelle du Sénégal) declared that, in accordance with Senegalese law, the trial would not be televised. The Chadian President, Idriss Déby Itno, also let it be known last October that the trial would not be broadcast live in Chad. Yet this is the first time that a former head of state has been tried by an inter-African court and FIDH cannot but regret that this historic trial is not being broadcast in Chad, Senegal and more widely across Africa. In particular, the occasion would have offered the Chadian people the opportunity to follow the hearings live and would have sent a strong message, to Africa, of support to the fight against impunity for the most serious crimes. Apparently, only excerpts of the trial will be broadcast via news media.
To make the trial accessible to the Chadian people, the Extraordinary African Chambers have nevertheless undertaken 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.
13. 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).
14. How will the NGOs help 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.
15. What sentence may be handed down to Hissène Habré?
The sentences established in article 24 of the Chambers’ Statute may not exceed the term of 30 years ’emprisonment or a term of life imprisonment if justified by the seriousness of the crimes and the personal situation of the convict. In addition, there is the possibility of a fine and confiscation of profits, goods and assets derived directly or indirectly from the crimes committed.
16. When will the trial of Hissène Habré start?
On 5 February 2015, after nineteen months of judicial investigation, the Public Prosecutor’s Office attached to the Extraordinary African Chambers requested the indictment of Hissène Habré and referral to the Trial Chamber of the Extraordinary African Chambers. On 13 February 2015, the examining magistrates concluded that there was sufficient proof to try the former dictator for war crimes, crimes against humanity and torture. The trial date was announced on 13 May 2015 by the Extraordinary African Chambers and hearings will commence on 20 July 2015 in Dakar. The EAC estimates that the trial will last 7 months, including deliberations. The presiding judge of the Trial Chamber of the Extraordinary African Chamber will be Mr. Gberdao Gustave Kam from Burkina Faso, a former judge with the International Criminal Tribunal for Rwanda (ICTR).