The Habré trial: lessons, replicability and limitations

A case study by Fondemos

After a legal battle lasting more than twenty years, former dictator Hissène Habré was sentenced on May 30, 2016 to life imprisonment for crimes against humanity and torture, for rape and sexual slavery, as well as for war crimes, by the Extraordinary African Chambers. The verdict was confirmed on April 27, 2017 by an appeals chamber, which also ordered him to pay nearly 123 million euros in compensation to the victims. Although it was an individual procedure, it constitutes an example of both national and international mobilization, a strategic litigation conducted with method and endurance, from which lessons can be learned.

A new legal framework

The International Criminal Court (ICC) could not try Habré, because its mandate is limited to crimes committed after it came into force in 2002. However, the crimes of the Habré regime were perpetrated between 1982 and 1990, a period during which the ICC had no jurisdiction. This situation highlighted the need for African mechanisms of universal justice. The trial of Hissène Habré, held in Dakar under the aegis of the Extraordinary African Chambers , was thus a milestone for international justice in Africa. After being overthrown in 1990, Hissène Habré lived in exile in Senegal, where he lived freely for decades: the Senegalese authorities had initially not prosecuted him, despite a complaint filed in January 2000 by Chadian victims against him for torture. The Senegalese President, Abdoulaye Wade, maintained ambiguous ties with Habré, notably under pressure from the Mourides, an influential brotherhood that had protected him, and ignored these requests. In 2006, the African Union (AU) officially requested Senegal to prosecute Hissène Habré “ on behalf of Africa ,” following years of pressure from the international community and human rights organizations. Although Belgium had issued an arrest warrant against Habré for crimes against humanity, Senegal refused to extradite him, citing for years its commitment to organizing a trial on African soil, while the revolt of several African States against the International Criminal Court was growing .

At the African Union Summit in January 2006 in Khartoum, the AU also decided to set up a Committee of Eminent African Jurists appointed by the Chairperson of the African Union, in consultation with the Chairperson of the African Union Commission. As stated in the committee's first report, it was mandated "to consider all aspects and implications of the Hissène Habré case and the available options for his trial, taking into account the following elements: adherence to the principles of total rejection of impunity; respect for international standards of fair trial, including judicial independence and procedural impartiality; competent jurisdiction for the alleged crimes for which Mr. Habré should be tried; cost and time efficiency of the trial; access of alleged victims and witnesses to the trial; preference for an African mechanism " . The committee, a new body composed of seven jurists from different countries on the continent, thus made a legal solution to the Habré case possible. Senegal amended its legislation to allow prosecution while requesting international funding to cover the costs related to the trial. After three years of negotiations, a budget of 8.6 million euros was agreed in 2010 between Senegal and donor countries. During the same period, ECOWAS recommended that Habré be tried by a special ad hoc court of an international nature, a recommendation rejected in 2011 by Senegal, which withdrew from negotiations with the African Union on the creation of this court.

Relations between Senegal and the AU then deteriorated, and Senegal eventually also ruled out the option of trying Habré in the country, supporting his extradition to Belgium. In 2012, the International Court of Justice (ICJ) ruled that Senegal had failed to fulfill its obligations under the Convention against Torture and ordered that it prosecute Habré or extradite him without delay. It was only with the election of Macky Sall in March 2012 that the political will to try Habré materialized: unlike his predecessor, Macky Sall adopted a stance favorable to a national trial rather than extradition to Belgium. After discussions with the African Union, an agreement was reached to create the Extraordinary African Chambers within the Senegalese judicial system. On December 17, 2012, the Senegalese National Assembly adopted a law establishing these special Chambers, and they were officially inaugurated in Dakar on February 8, 2013. These Chambers had the exclusive mission of trying Hissène Habré for serious crimes committed during his regime. One of the typical challenges of any universal jurisdiction case was met: creating the necessary political will in the state where the procedure is to take place. Similar past cases, with the exception of the Pinochet case, had resulted in failure (e.g., Iraq or Ethiopia). And the fact that the judgment took place in Africa and not in a remote international court ultimately strengthened its legitimacy in the eyes of African populations.

Victims at the center

Lawyer Reed Brody recounts and analyzes this legal battle in his book The Trial of Hissène Habré . He particularly emphasizes the symbolic power of a procedure that shed light on the victims, giving special importance to numerous testimonies and granting them international media coverage. The judgment put an end to decades of impunity, delivering justice to the thousands of people tortured, executed, or disappeared under Habré's regime. The strategy focused on victim testimony bore fruit and brought forward figures who left a lasting impression on public opinion. Those directly involved and committed took personal steps that were more likely to convince politicians to pursue the legal battle despite obstacles. The perseverance of Chadian victims' associations, who carried out an unrelenting fight despite political and judicial obstacles, proved decisive. Among these associations, the Association of Victims of the Crimes of the Hissène Habré Regime (AVCRHH) played a central role. Led by Clément Abaïfouta, a former political prisoner of Habré, the association documented the abuses and brought the survivors’ voices to the international stage . Figures like Jacqueline Moudeina, lawyer for the victims, were also crucial. This human rights activist survived an assassination attempt in 2001 and continued her commitment lasting until Habré’s conviction. Her work has been recognized with many international awards.

Formation of a transnational coalition

The final characteristic of this historic trial lies in the transnational and multidimensional coalition formed to build the case and make the trial possible: the involvement of international organizations like Human Rights Watch was essential to document human rights violations, raise the necessary funds for a campaign and a long trial, train victims, and publicize the legal battle and testimonies. When the fight lost momentum, it was repeatedly necessary to conduct diplomatic campaigns in parallel with essential legal actions to re-engage the international community. Thus, the United Nations Committee against Torture, the African Union, the European Union, the European Parliament, and the United Nations High Commissioner for Human Rights all acted as spokespersons for this exceptional trial.

The current regime

However, the Habré trial also highlighted the difficulties of international justice work: while the investigation focused on victims, the trial also created strong tensions with and within the current regime. The attitude of the Chadian authorities fluctuated between inertia and active obstruction. Although the Chadian government officially supported the trial, notably by partially funding the Extraordinary African Chambers, it never launched internal prosecutions against former officials of Habré’s regime who were still in power. Trying a predecessor while the key figures of his government remain in power is indeed difficult. This partly explains the length of the trial and Chad’s difficulty in drawing conclusions: although Habré was judged, many of his regime’s leaders remain unpunished and still hold positions of power. Former President Idriss Déby Itno, for example, served under Habré as Commander-in-Chief of the armed forces during the period referred to as the “Black September,” marked by deadly repression aimed at integrating the South into the authority of the central government. Article 10 of the Chambers’ Statute, however, specifies that “the official capacity of an accused, whether as Head of State or Government, or a senior official, shall in no case exempt him from criminal responsibility […].”

The investigating judges thus had the necessary latitude to initiate proceedings against President Déby for international crimes allegedly committed between 1982 and 1990, but they did not do so. Most of the evidence of Habré’s crimes was not discovered by the Chadian judiciary, but by Reed Brody during a visit to the former offices of the Documentation and Security Directorate (DDS) in N'Djamena : he found documents proving arbitrary arrests, torture, and executions under Habré, which had been abandoned there without ever being subject to local judicial investigation. This inaction by the Chadian justice system highlights the limits of a genuine will for justice within the country.

The involvement of several Western countries that supported Habré's regime was not mentioned during the trial. Yet, as highlighted in two Human Rights Watch reports published in 2016, titled “Enabling a Dictator: The United States and Chad’s Hissène Habré 1982-1990” and “ France’s Ally, Africa’s Convict – The Relationship between France and Hissène Habré’s Chadian Regime (1982–1990), ” France and the United States provided decisive assistance to Habré in seizing power, despite being aware of his brutal methods. “ Both countries viewed Habré as a bulwark against the expansionist aims of Muammar Gaddafi’s Libya, whose forces were then occupying northern Chad. ” Mentioning these backers during the trial would have helped name one of the structural factors behind the former president’s long impunity.

Conviction and reparations

Although Habré was convicted, the issue of broader accountability remains. None of the high-ranking officials from his regime have been prosecuted, despite overwhelming evidence against several of them, notably Idriss Déby, who was army chief under Habré. While the conviction was handed down, the implementation of reparations to victims remains incomplete due to a lack of sufficient funds (mainly due to lack of political will) and the complexity of the mechanisms in place: judicial decisions not being followed by sufficiently binding enforcement, only one fifth of the required reparations have been paid. The African Union, tasked by the Dakar court with creating a trust fund to raise the necessary sums, has not done so to date. In any case, Chad could indefinitely refuse or delay the enforcement of the rulings by invoking financial or political difficulties or relying on complex internal procedures to stall their implementation.

The Habré case opened Pandora's box of decades of impunity in Chad — an impunity that still persists in the country. The treatment of Reed Brody in Chad in October 2024 is a symptom of the discomfort of current Chadian authorities with this issue: the Chadian army escorted the lawyer back to the airport upon arrival, preventing him from undertaking the planned trip to promote his latest book recounting the Habré trial. Several serious shortcomings have also limited the impact of the trial: the responsibility for mass killings ended with Habré, with no prosecution of other perpetrators, and the ordered reparations were neither raised nor distributed. This example of international justice can therefore be seen either as a partial victory or a partial failure, but it nonetheless illustrates the concrete results that can be achieved through the use of law—if and only if civil society’s commitment and persistence go hand in hand with determined international support.