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III. The Challenges Ahead

The decision by the African Union to request that Senegal hold the trial of Hissène Habré, and President Wade’s commitment to do so, mark a potential turning point in the long effort to bring Habré to justice. If fair and transparent, this trial would be a milestone in the fight to hold perpetrators of atrocities responsible for their crimes.

But the commencement of a case, the investigation of the charges, the collection of evidence—particularly in Chad—and the trial itself, in addition to the possible execution of sentence, will pose serious ethical, legal, political, and of course material and practical problems.

Senegal is not the first country to confront the difficulties of such a procedure. States such as Israel (in the 1960s with the Eichmann case), and later the United Kingdom, the Netherlands, Denmark, Norway, Spain and Belgium, to name just a few, have had to face the challenge of trying foreigners on their soil for serious international crimes committed against foreigners abroad.¹⁵ But Senegal does appear to be the first developing country to accept such a challenge.

It is critical the trial be conducted “as soon as possible.” Hissène Habré’s victims have been fighting for 16 years to achieve their right to justice. Many of the survivors of Habré’s regime have died in that time, including two of the victims who participated in the initial complaint in Senegal in 2000. The longer the case against Hissène Habré is delayed, the fewer of his victims will be alive when the trial is held, which would be an additional injustice.

Financial and Logistical Challenges

The trial of Hissène Habré will inevitably involve hundreds of witnesses and millions of dollars. The difficulties of proving crimes committed in another country over 15 years ago are considerable. As an example, the recent trial in London of Afghan warlord Faryadi Zardad was estimated to have cost over £3 million ($5.2 million).¹⁶

Even before any trial, of course, the principal cost will be in completing the investigation. The Belgian judge and a team of police officers who deal exclusively with international crimes spent several years conducting their inquiry into Habré‘s alleged crimes, including their February-March 2002 visit to Chad (see above). It is estimated that the Belgian police spent four person/years on the investigation,¹⁷ with much more work still to be done.

Assuming that the Senegalese investigating authorities obtain access to the Belgian file though mutual legal assistance, there will still be more work to do, including visits to Chad to take evidence, and further analysis of the thousands of DDS documents.

There will be a number of logistical challenges. Dozens, if not hundreds of witnesses for the prosecution and defense, as well as other experts, will have to give testimony, particularly those who were not heard during the investigation phase. The vast majority of these witnesses will come from Chad, but some will come from other places in the world. Their transportation, housing, security and other costs will have to be borne.¹⁸ For those unable to come to Dakar, the possibility of testifying by video-link might be considered.¹⁹

Personnel and Training

One obstacle to the successful investigation and prosecution of international crimes is the relative lack of familiarity with investigating and prosecuting such cases among domestic law enforcement agencies, whose work principally involves domestic offenses. Prosecutions for crimes against humanity are daunting and resource-intensive for a variety of reasons: they involve not only criminal offenses with which domestic prosecutors have little experience, but also the prospect of extraterritorial investigations, language barriers,²⁰ the need to understand the historical and political context in which the alleged crimes occurred, and the gathering of evidence to prove elements of crimes of a type never adjudicated in a country’s domestic courts.

A number of European countries, such as Denmark, the Netherlands, Norway, Belgium, and to a lesser extent the UK, have responded to these challenges by creating units within police and prosecutorial authorities that specialize in the investigation and prosecution of trans-national crimes. These units include not only investigators and prosecutors, but also translators, military analysts, historians, and anthropologists, on an as-needed basis.²¹

The Belgian investigation into Hissène Habré’s alleged crimes was carried out by a special police unit that was created in 1998 to deal exclusively with international crimes. The unit now includes six experienced investigators and is part of the crime section of the judicial police of the arrondissement judiciaire Bruxelles. So far the unit has investigated international crimes committed in a number of countries, including Rwanda, Guatemala, Burma, as well as Chad.

In Senegal police and prosecuting authorities have no background or training in international crimes. Until now (and pending the promised law revisions) Senegal’s code of criminal procedure does not provide for the prosecution of most extraterritorial crimes, and crimes against humanity are not part of the criminal code. It will be necessary to seek special training for those who will investigate and prosecute the Habré case. That training might include managing complex investigations; investigative techniques for proving violations of international humanitarian law; evidentiary standards unique to international humanitarian law (for example, “command responsibility”); collecting and processing forensic evidence; interviewing witnesses to mass crimes (including dealing with sensitive and traumatized witnesses); and evidence handling procedures (including maintaining a chain of custody).

In addition, Senegalese judges have not had the opportunity (with the exception of those sitting in the benches of international courts) to deal with crimes against humanity or massive crimes. As in Iraq, Sierra Leone, Rwanda, Timor-Leste and elsewhere, they could greatly benefit from training by specialists in that field.  This training could include:

The applicable substantive international criminal law as it will be incorporated in Senegalese legislation (in particular crimes against humanity and war crimes).

Complex case/trial best practices with respect to, for example,

(a) courtroom management (for trial and appeal judges and court support staff, including translators and interpreters);

(b) case file management (for prosecutors and investigating judges);

(c) victim and witness participation, protection, and support measures, including psychological support and possible relocation;

(d) case materials filing and archiving;

(e) cooperation with other Senegalese authorities with respect to matters such as the speedy arrangement of visas for witnesses from Chad and the protection of vulnerable witnesses; and

(f) outreach (including broadcasting of proceedings).

There are a number of organizations that specialize in providing technical training, advice and support to investigative personnel and to judges.²²

Incorporating the Results of the Belgian Investigation

As described above, the Belgian authorities—the investigating judge and a special unit of experienced investigators who deal exclusively with international crimes—spent years putting together evidence in this case before issuing the indictment. If the fruits of that investigation—police reports, witness interviews, and in particular the thousands of DDS documents and the analysis of those documents—could be used by the Senegalese courts, this would not only reduce the cost involved, but would eliminate the long delay that would be caused by starting from scratch, and would allow the Senegalese teams to concentrate on new and additional elements. In addition, many witnesses interviewed by the Belgian authorities have since died. Respect for those, especially the victims, who gave their testimony to the Belgian judge (often at great sacrifice—see below) also demands that this evidence be put to its best possible use. Given how long the victims have had to wait for justice, it would be cruel to add years to the case by starting all over.

The Belgian authorities have told Human Rights Watch that they are ready to turn over that information to Senegalese investigators, if the latter are serious about prosecuting Hissène Habré. By means of letters rogatory, the Senegalese judge can ask his or her Belgian colleague to provide the file, and the Belgian judge and the police investigators can be called as witnesses.  

Accessibility

One of the major challenges to maximizing the impact of Hissène Habré’s trial will be to ensure accessibility of the proceedings to the Chadian people, who are the most interested and affected. Even when a trial is held domestically, this issue is of utmost importance. The Special Court for Sierra Leone, for instance, is implementing outreach programs to make the court accessible to the Sierra Leonean population, and may be considered a model. Video summaries are prepared twice a month and audio summaries once a week, and these summaries are distributed to radio and TV stations. Holding Habré’s trial thousands of miles away from his victims and the scenes of his alleged crimes creates significant challenges to maintaining the accessibility of the proceedings. It will be difficult, if not impossible, for many Chadians to attend proceedings in Dakar.

Arrangements should be made to have the proceedings televised and recorded, if possible, or at least summarized for broadcast in Chad. Journalists and representatives of Chadian civil society, especially human rights groups, should be present in Dakar to follow the trial.

Witness Protection

In a case as politically charged as this, where testifying either for or against Hissène Habré may endanger witnesses and their families, witness protection must be a top priority. Hissène Habré has enemies and supporters in both Chad and Senegal. In particular, as noted above Habré has reportedly used money allegedly stolen from the Chadian treasury to create a network of support in Senegal. This has created an atmosphere of intimidation in prior proceedings.

In January 2000 Daniel Bekoutou, a Chadian journalist working in Dakar and covering Habré’s prosecution, received repeated death threats, was physically harassed, and was eventually forced to flee Senegal. During the court hearings in 2005 Habré’s supporters bullied victims who came from Chad to attend the proceedings. Habré’s lawyers went as far as to characterize a staff member of Human Rights Watch working with the victims as a “hateful Jew” who was “anti-Islam.”

In Chad, as well, the victims and their supporters have been the target of intimidation and even attacks from Hissène Habré’s supporters, many of whom still hold key posts in the country’s security apparatus. The victims’ Chadian lawyer, Jacqueline Moudeina, was severely injured by shrapnel from a grenade thrown at her by security forces commanded by one of Habré’s accused henchmen. A number of victims have been threatened or have lost their jobs.²³

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The African Union and international donors should assist Senegal in meeting these challenges. In fact, the African Union gave a mandate to “the Chairperson of the Union, in consultation with the Chairperson of the Commission, to provide Senegal with the necessary assistance for the effective conduct of the trial,” and called upon “the International Community to avail its support to the Government of Senegal.”

In a communique dated November 2, 2006, the Senegalese government complained that Senegal had not received “one euro or one dollar” to help with the trial.²⁴ But there is no evidence that Senegal has approached any potential funders. Senegal should present to the African Union and potential international donors a detailed plan, budget, and timetable for the investigation and trial. The budget should include an estimate of the costs of the investigation (including the training of police in the investigation of international crimes, and missions to Chad and Belgium) and the trial (including witness protection and access for Chadians). While judicial investigations will naturally be subject to unforeseen developments, a timetable will serve as an important yardstick to measure progress, and a budget will allow the donor community to appreciate the costs involved.

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