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| Hissene Habre Dragged into Court at the Start of His Trial : Photo Courtesy EPA |
On 30 May 2016,
the African Extraordinary Chambers (AEC) delivered a judgment finding Hissène Habré
guilty of crimes against humanity committed during his presidency in Chad
between 1982 and 1990. He was sentenced to life imprisonment. Many commentators
have lauded the trial of Habré by the AEC and considered it a significant step
towards the promotion of international criminal justice on the African
continent. This may well be the case. However, the treatment of Habré during
his trial, in my view, amounted to a violation of his rights as an accused
person, which is a fundamental component of a fair trial. The violation of
Habré’s rights during the trial is like the proverbial rotten apple that spoils
the barrel and is therefore a subject worthy of discussion.
From the outset,
I will begin by appreciating the fact that the crimes committed in Chad during the
reign of Hissène Habré were horrific, brutal and affected thousands of
victims. Indeed, the attempt to try Habré took too long, and was characterized
by convoluted legal battles in Senegal, Belgium
and before the International Court of Justice (ICJ). The establishment of the
AEC, a special hybrid court, was a compromise, which provided a solution to a
stalemate. The AEC’s pro-victim stance is also understandable because it is in
line with the new trend in international law where the place of victims in international criminal trials is
given more and more recognition. The AEC was charged with the difficult duty,
as with all international tribunals, of balancing the need to deliver justice
to victims of horrible crimes and to protect the rights of the person accused
of perpetrating such crimes. This was exacerbated by the moral outrage of the
victims and general public when confronted with the crimes committed during the
Habré regime. In my view, the AEC gave in to the moral outrage and violated at
least two fundamental rights of the accused.
The first, and
the most flagrant violation, was the issuance of the order for Hissène Habré to
be forcefully dragged into court kicking and screaming, by
masked men. This, probably arose from
the AEC’s misinterpretation of the right
to be present at trial, which misinterpretation violated the accused's right to personal integrity.
The right to be present at trial is provided for in most international and
regional human rights instruments, for example article 14 (3) (d) of the International
Convention on Civil and Political Rights (ICCPR) and article 6 (3)
(c) the European
Convention on Human Rights (ECHR). Similarly, article 21 (4) (d) of
the Statute of
the Extraordinary African Chambers (AEC
Statute) also provides for the same right. However, this right is not
absolute. The Human Rights Committee, the independent body of experts in charge
of monitoring the interpretation and implementation of the ICCPR, has found that trials in absentia may
be held exceptionally and for justified reasons. For example, in the
case of Mbenge v Zaire, while the Committee emphasized that the right of
an accused person to be present at trial is fundamental, it also recognized
that there are circumstances where trials in
absentia are permissible for the proper administration of justice.
According to the Committee, one such circumstance is "for instance, when
the accused person, although informed of the proceedings sufficiently in
advance, declines to exercise his right to be present."
