Background Briefing

Comments on the Senegalese Proposal

Human Rights Watch has examined the unpublished Sow Report and the Financial Report on which the Senegalese request is based. They represent very positive steps forward, and contribute to an understanding of the challenges facing Senegal. In particular, the Sow Report found that:

  • In light of article 5(2) and 6(1) of the UN Convention Against Torture, Senegal should “immediately take the administrative measures (house arrest, ban on leaving the country) to assure Hissène Habré’s presence in Senegal;”8

  • Senegal should ask Belgium for legal assistance in accordance with article 9 of the UN Convention Against Torture to take possession of the fruits of the years of Belgian investigation;9

  • Habré’s prosecution in Senegal is not barred by the fact that courts lacked competence to try him (2001) or extradite him (2005), as these were not decisions based on the merits of the charges against Habré;  

  • Training of judges in international criminal law will be necessary;

  • A strong witness protection program will be necessary;

  • Liaison offices in Belgium and Chad will be necessary;

  • The trial must be made accessible to the Chadian people.

  • At the same time, the Sow Report and the Financial Report were prepared without the benefit of decisions as to the scope of the prosecution or the prosecution strategy, or of an in-depth knowledge of the facts of the case, the evidence which exists, or the work that has already been carried out by Belgian authorities.

    This is readily admitted in the Financial Report, which found it difficult to propose a precise plan with so many “uncertainties,” including the number of witnesses, the accessibility of evidence, etc.

    The following sections look at the three key issues fundamental to the success of any trial of Habré: prosecution scope and strategy, outreach to the Chadian population, and independent monitoring of the trial.

    A Circumscribed Prosecution Strategy Based on the Evidence

    Senegal must make critical decisions as to the scope and nature of the investigation and trial. The size of the case needs to be spelled out very early in the process, as it will govern everything that follows.

    In the Special Court for Sierra Leone (SCSL), for instance, the decision that the SCSL would prosecute only those “who bear the greatest responsibility for serious violations of international humanitarian law” and that this in effect meant that a dozen or so people would be tried, was made prior to the establishment of a working budget for the SCSL.

    A decision to prosecute Habré for all the alleged crimes of his regime (as was done, say, in the case against Slobodon Milosovic before the International Criminal Tribunal for the former Yugoslavia) would have one implication for the length of the trial and the budget. A decision to select representative sampling of the gravest crimes for which there is the strongest evidentiary basis, as recommended by Human Rights Watch, would have a different implication. Until a decision on the scope of the trial is made, it will be difficult to determine the size of the assistance needed.

    The Financial Report is based on an assumption that 500 victims will be called to testify, and that they will testify for several days each. While it will, of course, be important for victims to testify, this assumption betrays a misunderstanding about what will be required to prove Hissène Habré’s guilt. More important to the trial than repetitious evidence of the crimes themselves (the “crime base”) will be evidence of Hissène Habré’s own participation in and responsibility for the crimes chosen for examination.

    In addition, there is very strong documentary evidence of political murders, acts of torture, etc., by the Habré regime in the documents of Habré’s political police. Among the tens of thousands of DDS documents recovered, which are now part of the Belgian judicial file, were daily lists of prisoners and of deaths in detention, interrogation reports, surveillance reports, and death certificates. The documents alone reveal the names of 1,208 persons who died and mention a total of 12,321 victims of different forms of abuse. In these files alone, Hissène Habré received 1,265 direct communications from the DDS about the status of 898 detainees.

    Another important determinant of the work to be done by the Senegalese examiners to investigate Habré’s crimes is the work that has already been done by the Belgian judicial authorities. The Belgian case-file, assembled over several years by an investigating judge and a special unit of experienced investigators who deal exclusively with international crimes, includes police reports, witness interviews, and in particular the thousands of DDS documents and the analysis of those documents.

    The Belgian authorities have stated that they are ready to turn over that information to Senegalese investigators. 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.

    For these reasons, the assertion in the Sow Report, that “between Chad and Belgium principally, there are an estimated … 20,000-40,000 witnesses and victims,” an estimate repeated in the Financial Report and finally in the invitation letter from President Wade to the donors’ conference (the trial would involve “thousands of victims and witnesses, mostly living abroad”)10 seems misplaced.

    Many of Habré’s victims and the Chadian people would no doubt like to see all of Habré’s alleged crimes brought up in court. Those whose crimes are not evoked will feel slighted. But experience now dictates that for reasons of cost and efficacy, a selection of specific crimes should be made. That selection must reflect the severity and the wide scope of the crimes committed by the Habré regime, respecting, in particular, the crimes carried out against several of the major ethnic groups in Chad.

    It is suggested, that to do justice to Chad’s different victims, the prosecution would need to choose specific incidents relating to at least the following crimes:

  • The massacres in the south of Chad from 1982 to 1984, including Septembre Noir 1984

  • The persecution of the Hadjerais in 1987

  • The persecution of the Zaghawas in 1989-90

  • The persecution of Chadian Arabs

  • The mistreatment of Libyan and Chadian prisoners of war

  • Systematic torture and mistreatment of detainees by the DDS

  • Outreach

    One of the major challenges to maximising 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.  Holding Habré’s trial thousands of miles away from his victims and the country which he ruled will require a significant outreach program to ensure that a trial in Dakar is accessible to them, understood by them and stimulates their own understanding of the past and search for justice.

    The Special Court for Sierra Leone is implementing outreach programs to make the court accessible to the Sierra Leonean population, and may be considered an appropriate model to follow. The International Criminal Court is also developing such programs.

    Outreach techniques employed by the Sierra Leone Court have included:11

  • The production and distribution of printed materials, including illustrated booklets, posters and other public court records;

  • The holding of consultation meetings with specific groups, such as civil society groups and international nongovernmental organizations (NGOs) to channel their concerns directly to the Special Court;

  • Holding targeted programs for socially disempowered groups, potentially destabilized groups, law enforcement agencies and influential civil society leaders.

  • The Public Affairs Unit of the Registry of the Special Court also produces audio and video summaries of court proceedings. Video summaries of court proceedings are prepared twice a month, with Krio versions of the summaries being screened throughout Sierra Leone.12 Audio summaries of court proceedings, in English and Krio, are prepared once a week, and played on ten different radio stations throughout the country, including the government broadcasting service.13

    For the trial of Charles Taylor in the Hague, the Special Court is video-streaming proceedings from the Hague to its ordinary premises in Freetown, and is bringing West African journalists to the Netherlands to observe the court proceedings.

    The Trial of Hissène Habré poses particular challenges to the implementation of a successful outreach program, not faced in Sierra Leone, however. Firstly, the trial is taking place in Senegal rather than Chad itself. Thus, court proceedings in the Habré trial will be far away from the Chadian people. Secondly, the trial of Hissène Habré is taking place in a national court and not an international tribunal and thus the court itself is not the right agency to conduct outreach, though it may be required to supervise it for reasons of coherency. It is suggested that an agency or NGO not involved in the case carry out the outreach, in cooperation with the Senegalese court. And finally, while the government of Chad is fully supportive of the trial, Chad does not present as “permissive” an environment as Sierra Leone, in the sense that conditions for a full and open discussion of transitional justice issues are not as well developed in Chad.

    At the very least, arrangements should be made to:
     

  • hold consultation meetings with civil society groups in Chad to design outreach strategy and programs;

  • hold outreach training programs in Chad targeting members of specific ethnic groups;

  • televise and record the court proceedings;

  • prepare video and audio summaries of the proceedings for broadcast in Chad;

  • prepare written summaries of proceedings;

  • hold screenings of proceedings and interactive dialogues in local communities in Chad;

  • bring journalists and representatives of Chadian civil society, especially human rights groups, to Dakar to follow the trial;

  • Independent Monitoring by Senegalese and African Civil Society and the African Union

    The African Union mandated“the Republic of Senegal to prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for fair trial.”

    Human Rights Watch believes that one way to encourage a fair, thorough, and independent investigation and trial is to promote monitoring of the trial by Senegalese, Chadian, and African civil society. A Senegalese-led trial-monitoring effort will also raise awareness of the trial in Senegal and Africa in general.

    The generally recognized objectives of trial observation are to:

  • Encourage the tribunal to provide a fair trial. The presence of an observer at a trial indicates that the tribunal is under scrutiny and, in this way, may positively influence the tribunal’s conduct;

  • Bring international attention to the proceedings; and

  • Provide observer organizations with first-hand information necessary to encourage the government to provide fair trials.14

  • In addition, because the trial is being carried out also “on behalf of Africa” under a mandate from the African Union, it would seem imperative to have an AU monitoring effort as well, under the supervision, perhaps, of the AU envoy to the trial, Robert Dossou.



    8 Article 6.1 of the Convention against Torture stipulates that “any State Party in whose territory a person alleged to have committed any [acts of torture] is present, shall take him into custody or take other legal measures to ensure his presence.”

    9 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987. Article 9 of the Convention against Torture says that “States Parties shall afford one another the greatest measure of assistance in connection with civil proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.

    10 Letter from President Abdoualye Wade to Reed Brody of Human Rights Watch, November 29, 2007 (“des milliers de victimes et témoins résidant pour l’essentiel à l’étranger”).

    11 Special Court for Sierra Leone, Special Court Outreach Report 2003-2005, published 2007.

    12 Sierra Leone Special Court, Video Productions http://www.sc-sl.org/video.html, 7 September 2007.

    13 Sierra Leone Special Court, Audio Segments http://www.sc-sl.org/audio.html, 7 September 2007; Human Rights Watch, Bringing Justice: The Special Court for Sierra Leone, Accomplishments, Shortcomings, and Needed Support, http://hrw.org/reports/2004/sierraleone
    0904/8.htm#_Toc81830592, September 2004.

    14 The International Commission of Jurists, Trial Observation Manual, http://www.hrea.org/erc/Library/monitoring/icj02.pdf, June 2002.