The Hissène Habré trial: a triumph for victims and civil society

This post was contributed by Marie Gibert, an associate lecturer in Birkbeck’s Department of Geography, Environment and Development Studies. This post was originally published by the South African Institute of International Affairs.

Nearly 26 years after he was forced out of power, former Chadian president Hissène Habré has been found guilty of crimes against humanity, torture (including sexual violence) and crimes of war committed under his rule from 1982 to 1990. He has been condemned to life imprisonment by the judges of theExtraordinary African Chambers (EACs), a court specially created by Senegal upon the request of the African Union (AU). This was the first trial of its kind on the continent and years of lobbying were necessary to convince the AU and Senegal to proceed with it. In pushing Africa to bring Habré to justice, the victims and the international coalition of non-governmental organisations that have supported them have shown that Africa’s relationship to international criminal justice is far more open than the statements of some African leaders might suggest. Africa’s people demand such justice, and will pull all the necessary levers to obtain it.

The years that have passed seem to have reinforced the determination of the surviving victims, the victims’ families and the civil society organisations (CSOs) that have accompanied them – from the Chadian Association of Victims of Crimes and Political Repression (AVCRP) to the Chadian Association for the Promotion and Defence of Human Rights (ATPDH) to the Dakar-based based African Assembly for the Defence of Human Rights (RADDHO) to the international Human Rights Watch (HRW) and International Federation for Human Rights (FIDH). In the absence of a straightforward legal path – it was evident from early on that the Chadian justice system would not request Habré’s extradition from Senegal to prosecute him, and the International Criminal Court’s (ICC) jurisdiction does not cover crimes committed before 2002 – they have, over the years, knocked on all doors. This has included calling on Senegalese justice, of course, but also on the UN Committee against Torture, the UN High Commissioner for Human Rights, Belgium’s universal jurisdiction provisions, and the International Court of Justice, but also defending their case before the Court of Justice of the Economic Community of West African States (ECOWAS), (of which Senegal is a member) that had been seized by Habré’s supporters and lawyers.

The campaign for the Habré trial has also successfully drawn on previous cases, and on the expertise that has now accumulated across the world on cases of mass human rights abuses. Argentinian forensics experts, with similar experience in their own country, were thus called upon to analyse Chad’s mass graves and testify in the trial. The courts’ name also naturally draws on the Extraordinary Chambers in the Courts of Cambodia, set up to try the surviving leaders of the Khmer Rouge regime. It provided an initial legal template when Senegal was asked to create an ad hoc tribunal to try the former Chadian president.

The campaign, however, has not just been a legal one. In the absence of a guarantee that the trial would take place one day, the surviving victims have been keen to publish their testimonies. This has taken many forms, from the more traditional bibliographic account written by Souleymane Guengueng, to video testimonies gathered on HRW’s website or in documentary films such as Klaartje Quirijns’ The Dictator Hunter, Isabel Coixet’s Parler de Rose, or Mahamat-Saleh Haroun’s Hissein Habre: a Chadian Tragedy. There are also written testimonies in civil society publications – in 2013 HRW published The Plain of the Dead, a 714-page account of the Habré repression system in great part based on victims’ testimonies – and interventions in the media. In so doing, the survivors have not only made sure their testimonies would be available beyond their own deaths, but also helped to publicise the Habré affair and gave it a very human face. Some of them have equally been present throughout the trial, delivering most of the witness testimonies in an attempt to represent as best as they could all victims, alive and dead.

Img habre Oueddei peace treay cc Ammagina

Chad’s Government of National Unity, headed by Goukouni Ooueddei (left), was created on 23 March 1979 in an attempt to end the civil war. Hissène Habré (right) was Minister of Defence until his loyalists overthrew the government in 1982, ushering in a military dictatorship that lasted until 1990. Photo (c)Ammagina, CC BY-SA 4.0

As with many such international justice prosecutions, Habré’s trial has taken place many thousands of kilometres away from most of his victims and the places where his secret police’s crimes took place. While some observers note that geographic distance, in some cases, may contribute to greater judicial serenity, most commentators state that it also means that justice remains out of reach for many victims and most of the population, and that the national judiciary is unable to strengthen its legitimacy in the eyes of the people. These are obvious shortcomings in the Habré affair, although the Chadian justice system prosecuted and condemned 20 Habré regime officials in 2015, in an obvious effort to show that justice could also be served in Chad.

Here, too, the steady involvement of the victims and CSOs has had an important effect on reducing the distance. They, and a number of initiatives launched by volunteers and legal professionals, have also made creative use of new technologies to promote the trial, record it and reach out to Chadians.Websites and Twitter have served as platforms to post regular updates on the proceedings whileYouTube has hosted all trial recordings posted by the EACs’ interactive forum. Outreach activities in Chad are on-going and have notably included public screenings of extracts of the trial, and debates and dialogues with local inhabitants throughout the country.

Paradoxically, the victims’ long wait for a trial may well have increased the quality of the evidence presented before the EACs. It has had an obvious impact, first, on the quality of the documentary evidence used in the trial. The EAC investigators were thus able to use documents from the Direction de la documentation et de la sécurité (DDS), Habré’s political police, found by HRW investigators in 2001, as well as the testimonies gathered by CSOs and evidence collected by Belgian Judge Fransen, who investigated the case in 2001-2005 (at a time when it looked like Belgium, rather than Senegal, would prosecute Habré). Moreover, not only has the time elapsed had no adverse effect on the victims’ determination to testify, it may even have given them a greater freedom to do so. The trial thus uncovered a hitherto little-known aspect of Habré’s rule: the extent to which sexual violence was used by its repressive system (a crime now specifically acknowledged in the verdict although the EAC judges had initially refused to add it to the charges). This discovery was only possible thanks to the testimonies of a number of now middle-aged women who testified about the violence and abuses to which they were subjected with an incredible dignity and great clarity, looking Habré in the eye. It is not likely that they would have felt able, and free, to do so publicly twenty years ago, as younger women. The Habré trial has thus successfully overcome one of the main challenges in the prosecution of grave crimes, that of gathering enough high quality evidence and witness statements – something the ICC has been struggling to do, notably with regards to the Kenyan case.

In many ways, the Habré trial before the EACs and the campaign that led to it have underlined the importance of a multi-faceted approach in seeking international criminal justice. The victims and their allies have gone well beyond the obvious legal strategy to lobby the AU, Senegal and their international partners. In seeking the support of international civil society allies, drawing on existing international expertise, knocking on all institutional doors, using a wide range of media outlets, collecting, transcribing and storing evidence, and preparing for the trial and their witness statements, they have not only made sure that, in the words of one of Habré’s victims, Rose Lokissim, ‘Chad would thank [them] and History would remember [them]’, but that the long-awaited justice would be of the highest possible quality.

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YouTube justice UK style

This post was contributed by Professor Leslie Moran, of Birkbeck’s School of Law and Barbara Villez, Visiting Fellow at Birkbeck Institute for the Humanities, Professor Université Paris 8

The UK Supreme Court has launched a new communications initiative.  As of late January 2013 you can watch, on demand, videos of judges in the highest court in the land delivering summaries of their judgments. Who is the audience for these five minute programmes? Is it the hard pressed smart phone/iPad generation law student, lawyer or legal advisor? No; far from it.  The Court’s press release announcing the launch of the YouTube initiative suggests the target audience is much wider. Lord Neuberger, President of the Supreme Court, is quoted expressing his hope that the videos will broaden the audience for the Court’s work. Are they the next hot internet viral sensation educating the public about the work of the highest court in the land? The short answer is ‘no way’. Are these videos a ‘must watch’ offering valuable insights into the decisions of the court? We have our doubts about that too. But they do make fascinating viewing.

The visual challenge of judicial activity

Judicial activity has been described as ‘visually challenging’. These videos do much to confirm this and do little to meet that challenge. Five minutes watching someone with their head down reading out loud from a set of papers is not great telly by any stretch of the imagination. The way the images are put together adds to this static quality, with each video being made up of two basic types of shot. Throughout, the camera’s presence is unacknowledged by the speaking figure.

There is little in the way of props or costume to attract the eye. Judges in the UK Supreme Court don’t wear special robes in court. These judges look very much like ordinary business men. There is only one female judge, Lady Hale. In contrast to this there is much to distract the ear. The microphones, built into the judicial bench, not only pick up the voice of the judge but also the endless rustle of their papers.  Coughing and other background noises regularly punctuate the proceedings. All tend to obscure the words spoken by the judge.

Adaptation from written texts

What are you going to get out of watching the highest judges in the land reading out loud? The judges, so they tell us in the videos, are ‘giving the judgement of the Court’.  But law students and other diligent viewers beware; ‘giving the judgement of the Court’ is not the actual opinion of the court. What you actually get is an image of a judge delivering a speech adapted from a press summary published on the Court’s website to accompany the judgement itself. Written initially by the judicial assistants, the judges approve these summaries and then adapt them for the ‘live’ presentation in Court. The judgment is a written text. And it is written to be read, not spoken. It is available on the Court’s website, as is the accompanying press summary.

As the videos show, the adaptation of the press summaries into scripts for a courtroom performance is problematic. Despite the rearrangements, these scripts are not easy to speak. Judges stumble over the dense text and struggle to incorporate quotations from the trial judge into oral delivery.

The videos do, however, have much to offer. You not only hear the voice of the judge but also the accent which is a marker of their social class. The folding and refolding hands of a courtroom assistant on screen behind the talking head of the judge add an unexpected physical ‘commentary’.

Television trivia?

But are many of these points indicative of the dangers of putting courts and judges on TV? Are we in danger of getting caught up in what some describe as the trivia of the moving image? Our first response is that image making and image management are central to judicial authority. As the 2008 Judicial Studies Board, Framework of Judicial Abilities and Qualities reiterates time and time again, all the core judicial abilities and skills have to be ‘demonstrated’ and communication is central to this demonstration of authority. The courtroom is one long established context in which these abilities and skills have been performed and communicated. Props, wardrobe, voice and the body all have a role to play in demonstrating and communicating judicial abilities and qualities. Video is a new communication format, context and set of challenges. It has characteristics similar to and different from both face to face courtroom encounters and the more formal and enduring qualities of the text of a written judgment.

The current YouTube videos are a return to primitive television. They are simply the result of the presence of the camera in the court. The camera appears to be no more than a tool that records an event. However as the simple editing shows, the record is subject to a degree of manipulation. The resulting image is not just mediated by the technology but has been subject to judicial control. If essential information about the judgement, the press summary and the full judgement are already available what extra is provided by these judicially approved moving images? It may well be just that there is a camera in court and that camera is a symbol of openness, transparency and a form of accountability.

But is that going to satisfy a public that lives in a culture saturated with sophisticated video imagery.  One problem with them may well be that the public is too sophisticated for primitive television. Viewers have expectations acquired from countless hours of watching complex moving images, generating high levels of visual literacy. The primitive visual aesthetics of the UK Supreme court’s YouTube videos are likely to be a real turn off. If the judges of the UK Supreme Court are going to use video available via the Internet as a means of communicating, then they may have to think harder about the moving image that it is being made and adopt a different approach to the use of the moving image as a means of communication.

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Does the jury system work?

This piece was contributed by Dr Adam Gearey, a Reader in the School of Law.

Does the discharge of the jury in the Pryce trial suggest that this most ancient of common law institutions has come to the end of the road? The trial judge, Mr Justice Sweeney, was certainly scathing about the failure of the members of the jury to understand basic points of evidence and their role in the trial. It also seems the press are ready to stick the boot in; fulminating against overpaid lawyers who defend the jury trial as a way of justifying fat fees. The point is that we have to take a sober look at these issues, and not listen to the rantings of the gutter press.

The real difficulty is finding an objective way of thinking about the good and bad features of the jury. One way of doing this is by looking at the rulings of the European Court of Human Rights in Strasbourg (ECtHR). Using Article 6 of the European Convention on Human Rights, the court has been busy developing principles that define a fair trial. Given that these are international human rights standards they offer sound principles for thinking about and assessing the work of the jury.

From the perspective of fair trial rights, the jury is – at first regard- deeply problematic. It is a fundamental principle of a fair trial that a decision maker gives reasons for his/her decision. It should then be clear how the law and facts have been interpreted. If the decision maker is wrong, then there may be grounds for an appeal. The jury does not give reasons for its decision.

Does this mean that the jury is fundamentally flawed? This conclusion would be a mistake. A fair trial involves checks and balances. What the Pryce trial shows is that the trial judge himself was able to give jurors directions and guidance- and- when it became clear that the jury was unable to reach a sensible decision, was able to bring the trial to an end.

“Ah”- say the journalists of the gutter press- “the Pryce trial shows that courts are costly and inefficient”; a line of reasoning that always leads to the same kind of conclusion: human rights keep criminals out of prison; stop ‘us’ deporting immigrants etc etc etc.

Step back and think this through.

Whilst the jury is not perfect it is central to the integrity of the criminal trial. Faith in the jury is faith in our fellow citizens to argue about matters and come to a reasonable conclusion. That the jury is also consistent with European human rights law and measures up to an international benchmark is also worth stressing. Jury deliberations may be hidden from scrutiny – a safeguard necessary to allow full and frank discussion of the issues the trial raises- but we should not allow the Pryce trail knock our belief that the jury is central to the criminal trial.

Perhaps, in the final analysis, the Pryce trial shows that the safeguards do work; and that, to the chagrin of the journalists, lawyers are doing their jobs and that – despite some problems – the jury is an integral part of the criminal trial.

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