Five years ago, I wrote, “It is unlikely that Habré will ever have his day in court because of the unwillingness to speed up the process of his trial, and due to the African Union’s reluctance to set up a precedent in transnational justice involving a former head of state.” Since then, the winds of accountability for past crimes have blown stronger across the Sahel-Sahara landscape, like the harmattan.
For the first time in history, a former head of an African state will stand trial in Africa, before an internationalized tribunal, the Extraordinary African Chambers in Senegalese Courts. The EAC is an ad hoc court which is set up by the African Union under the principle of universal jurisdiction. It focuses solely on crimes of genocide, war crimes, torture, and crimes against humanity committed in Chad between 1982 and 1990. That happens to be the period of Habré’s tenure. The Chambers are made of judges of Senegalese nationality, nominated by Senegal’s Minister of Justice and appointed by the AU Chairperson.
If all goes as planned, the Habré’s trial will start in Dakar, this summer. Habré stands accused of crimes against humanity and torture during his rule in Chad in the 1980s. His reign was brutal, but he was literally “our man in Africa,” eager and willing to do for the CIA and the Reagan administration what no one else would.
A few of years ago, such a trial was highly improbable. The man that the Human Rights Imperium often refers to as the “African Pinochet” has been at the center of a saga that spans over two decades of political intrigues, international disputes, and court battles.
Habré fled to Senegal in 1990, after having been deposed by the current Chadian president Idriss Déby Itno. In Dakar, the former dictator-warrior reinvented himself as a discreet and pious grand-fatherly figure amidst the Senegalese upper-class, and sought to be forgotten by history. Following the Pinochet Effect, and with the help of Human Rights Watch, Chadian victims brought charges against Habré before Senegalese domestic courts in 2000. But the cases were dismissed, partly due to Senegalese domestic political maneuvering.
In fact, Dakar’s Regional Court indicted Habré on torture charges and placed him under house arrest in February 2000. The petitioners invoked Senegal’s ratification of the UN Convention against Torture. But an appeals court dismissed the charges a few months later, declaring Senegalese courts incompetent. The arrival of Abdoulaye Wade in power in Senegal in April 2000 played a role in the dismissal of the case, given that Habré’s lawyers were members of Wade’s inner circle, including the former Minister of Justice.
When Wade asked Habré to leave Senegal in 2001, the UN Committee against Torture asked Senegal not to allow him to leave, and Wade then agreed to let him stay, until an extradition request was introduced by a third party. But the extradition request came from Brussels, which raised a whole set of questions on the selective application of universal jurisdiction between former colonial powers and African states.
In the face of Senegal’s refusal, Belgium took the matter to the International Court of Justice, which ruled that Senegal has to either try Habré or extradite him. In addition to the obscenity of the idea of sending Habré to Brussels, African leaders wanted also to put the brakes on universal jurisdiction, which could be used by any “small European judge” to go after them.
Senegal then referred the matter to the AU, which recommended that Habré should be tried by an African court, and asked Senegal to bring Habré to justice, “in the name of Africa.” Subsequently, Senegal changed its law to give its domestic courts universal jurisdiction over crimes against humanity.
However, Senegal still dragged its feet after it received the AU mandate, asking for a budget of $88 million that would include building a new courthouse. After many months of negotiations, the budget was reduced to about $10 million, funded by international donors, including the Chadian government – which provided $3 million, as well as the AU, the EU, the Netherlands and the United States.
The role of the Chadian government in Habré’s proceedings has been ambivalent: it has gone from being the main funder, to seeking to be a civil party in the trial – claiming a “victim” status, to refusing to fulfill the EAC’s demand for cooperation with the investigation. Furthermore, Déby was the commander of Habré’s forces during the period under investigation. Technically, the EAC can also pursue him for crimes that fall under its jurisdiction, although that is very unlikely to happen.
In any case, the wheels of justice for — or against — Habré are turning fast, and he will have his day in court in a few months. Whatever the outcome of these proceedings, they have already made history and will certainly alter the future of head of state immunity in Africa. In a continent where deposed presidents-cum-dictators often seek refuge in a friendly state and fade away in history, the Habré case is a reminder that command responsibility for atrocious crimes will no longer be confined to rebels and militia leaders.