Africa Against Global Justice? Stakes for Building a Political Sociology on the Future of International Criminal Justice

This chapter challenges current debates in global justice and the fight against impunity. Shifting the lens from the symbolism of global justice towards the structural conditions that have shaped international criminal justice as a field over time can help reposition the Habré success story not simply as an anomaly in a context of wider backlash against the International Criminal Court (ICC), but rather as a reflection of the structure of global justice as a weak field. The chapter then discusses the need to study systematically the evolution of legal markets on the African continent. In this, the project to institute a criminal chamber within the African Court of Justice and Human Rights has perhaps been too promptly dismissed as overly ambitious due to the lack of resources and state support within the African Union (AU). Interestingly, this project includes not only the crimes under the purview of the ICC, but also various other trans-border crimes such as trafficking, corruption, and the illicit exploitation of resources. The prominence taken in recent years by Africa as a new ‘mining frontier’—and with it, as a new haven for US and UK multinational corporate firms—underscores the timeliness of opening research paths on these ongoing transformations across the continent.

Covering Habré

This chapter explores Senegalese journalist Ngoundji Dieng's coverage of the Hissène Habré trial for the Dakar daily Le Quotidien, discussing her process of reporting on Habré, including her travels to Chad to observe fact-finding efforts there. Dieng began to follow the Hissène Habré case when the lawyers of the victims came to Dakar and organized press conferences with elements of Senegalese civil society—notably, the Rencontre Africaine pour la Défense des Droits de l'Homme (RADDHO)—to demand justice. At the time, the Senegalese were not interested in the case, but she continued to cover on a regular basis, challenging a narrative that this was a case driven by international activists. The coverage of the trial exposed Le Quotidien to criticism from the Habré camp. The lawyers for the defence who had made the decision not to collaborate with the EAC had also decided to declare war on them, refusing to talk to their paper despite multiple requests on the Le Quotidien's part. Nevertheless, the paper maintained their neutrality during the hearings, of which Dieng wrote accounts.

A Donor’s Perspective

This chapter addresses the challenges of providing necessary, but politically sensitive, Western support to a tribunal overtly designed to be an African mechanism. Two principal elements motivated Switzerland's actions in Senegal: Switzerland's commitment to promoting international criminal justice and its longstanding engagement with Chad. It is within this context of strong and active engagement in Chad, along with the direct repercussions for the people of Chad of the trial of Hissène Habré, that it became apparent that Switzerland should actively engage with the Extraordinary African Chambers (EAC). Concretely, this engagement entailed making a range of technical assistance available and facilitating relations and communications among the various stakeholders, rather than financing the EAC as a donor. This choice was made in light of the ongoing concern of ensuring that actions in Senegal could also have a positive impact for Chad. Switzerland additionally participated in the Steering Committee for the financing of the EAC as an observer.

The Habré Appeals Judgment

This chapter looks at the appeals decision of the Extraordinary African Chambers (EAC) in the Hissène Habré trial. The Appeals Chamber of the EAC issued its appeals decision on April 27, 2017. Upon appeal, the judges upheld Hissène Habré's life sentence for crimes against humanity, war crimes, and torture. However, Hissène Habré was acquitted of one of the sexual violence-related charges: the direct commission of rape of Khadija Hassan Zidane. With regard to reparations, the judges clarified Hissène Habré's sentence to pay financial compensation to 7,396 victims. The grounds of appeal that may be invoked before the Appeals Chamber include errors of procedure, errors of fact, and/or errors of law. It should be proven that those errors led to a denial of justice and that the error was a decisive factor in the outcome. The chapter then summarizes all the grounds of appeals—of the Defence and the civil parties—and the Appeals Court's corresponding decisions.

Can We Be Friends? Offering an Amicus Curiae Brief on Sexual Violence to the EAC

This chapter details the preparation and submission of the amicus curiae brief on sexual violence to the Extraordinary African Chambers (EAC). The amicus curiae brief offered by over a dozen experts on the prosecution of sexual violence under international law may have been a game changer for the Hissène Habré trial, both in terms of its relevance as a mechanism of international criminal justice, as well as in highlighting the EAC's power to address crimes of sexual violence despite their omission from original charges. Among other international crimes, Habré had been convicted of rape and sexual slavery as a crime against humanity and as a form of torture. The affirmation of Habré's life sentence for massive sexual violence committed by his Documentation and Security Directorate (DDS) agents was hailed as a tremendous victory for international criminal justice and the rights of sexual violence survivors. However, the conviction for sexual crimes was not complete and its path was not linear.

From Victim to Witness and the Challenges of Sexual Violence Testimony

This chapter discusses how Jacqueline Moudeïna, the first woman to practice law in Chad, became connected to Hissène Habré's victims, as well as how she organized and prepared them for trial. Moudeïna coordinated the team of lawyers who represented nearly 4,000 victims in the trial of the former Chadian President Hissène Habré before the Extraordinary African Chambers (EAC). The preparation of the victims was a long term undertaking and a day-to-day effort. It was very difficult for the victims to testify, but the majority stood their ground. The chapter then looks at how Moudeïna convinced the victims of sexual violence to testify. It also considers the lessons learned with respect to enabling disclosure of sexual testimony, which became central to the trial. It should be noted that the amicus curiae brief on crimes of sexual violence was of great importance as background information. It helped clarify rape as an international crime in itself.

Investigations in Senegal and Chad

This chapter discusses the start of the work of the Extraordinary African Chambers (EAC) on investigating the case against Hissène Habré and others. The role of the Investigative Chamber was to undertake pre-trial preparation by performing whatever acts are necessary to uncover the truth and by looking for both incriminating and exonerating evidence to determine whether the trial should occur. Initially planned to take fifteen months, the investigating phase ended up taking nearly two years, from July of 2013 through February of 2015. At the end of the investigation, the investigating judges drafted the indictment that the Prosecutor then proceeded to present to the court. Judge Jean Kandé was one of the Senegalese investigative judges for the EAC. Their investigation resulted in the indictment of Habré and five of his subordinates. The chapter then describes the investigation phase, the challenges of securing Chad's cooperation with in situ fact-finding, and the benefits of working across international borders with other local actors.

The Belgian Investigation of the Habré Regime

This chapter focuses on Belgium, which initiated pursuit of Hissène Habré under universal jurisdiction laws. Under Belgium's universal jurisdiction statute, Belgian investigative judge Daniel Fransen led the investigation into crimes committed by Habré's regime. In connection with this investigation, he spent ten to twelve days in Chad in 2004 and testified about this experience before the Extraordinary African Chambers (EAC). Judge Fransen explains that ‘all investigative acts were carried out by the Chadian investigative judge or Chadian investigating officers, with the presence and assistance of the Belgian staff’. These investigative materials were transmitted to the EAC Prosecutor in April of 2013. The chapter then presents an excerpt of Judge Fransen's testimony before the EAC, in which he answered questions from Habré's court-appointed lawyer, Mounir Ballal.

The ‘Archives of Terror’

This chapter discusses the unlikely discovery of the abandoned archives documenting crimes of Hissène Habré and his regime by members of a Human Rights Watch (HRW) team. These were the lost archives of Habré's former political police, the Documentation and Security Directorate (DDS). It was a trove of evidence that would prove critical in Habré's eventual prosecution. The victims of Hissène Habré's regime started a criminal case against their former dictator in 1999–2000 based on hundreds of detailed testimonies, data gathered by the victims' organization and the conclusions of the 1992 Chadian Truth Commission. The recovery of the DDS archives proved to be decisive for the case. These archives corroborated the statements made in court and shed new light on the scale, pattern, and systematic organization of Habré's political police and ‘machine of repression’. The archives also helped to establish Hissène Habré's personal criminal responsibility. The DDS was directly subordinated to Habré, who was in total control over its structure and agents.

The African Pinochet? Universal Jurisdiction and the Habré Case

This chapter addresses the potential for a broad, African application of universal jurisdiction—the normative approach which enabled the Hissène Habré trial—in other African courts. For all the excitement generated by the concept of universal jurisdiction, there have been very few instances of prosecutions on the basis of universal jurisdiction in Africa. Even in Europe, the heartland of universal jurisdiction, the application of this form of jurisdiction has been on a sharp decline—in spite of ambitious universal jurisdiction legislation adopted in countries such as Belgium and Germany. In this landscape, the ‘successful’ prosecution of the Hissène Habré case is of particular significance, especially given the highly contested field of international criminal justice in Africa. The chapter then examines the requirements for a successful universal jurisdiction prosecution in the African context. It also explores what ‘Habré effect’ people might be seeing in the wake of the Habré case.