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Wednesday, September 28, 2016

The Trial of Hissene Habre: An Analysis of the Rights of the Accused

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."