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."

From the foregoing, it is clear that being present at trial is the accused’s right, which he can choose to exercise or not. The general understanding of this right is that it cannot be forced on someone. Indeed the Committee already envisioned a situation where an accused person, despite being informed many times, refuses to be present at trial and the solution provided by the Committee in such circumstances is to hold the trial in absentia. After Habré refused to attend his trial, the AEC ought to have held the trial in absentia. The right to be present at trial cannot under any circumstance be interpreted to allow a court to violate the right of an accused to personal integrity by forcefully dragging him to court.

The second, and the more controversial human rights violation, was the decision of the AEC to appoint counsel against Habré’s wishes. When Habré's lawyers refused to attend the trial, the Court appointed three Senegalese lawyers to represent him despite his protests. He refused to cooperate with them and therefore they mounted his defense on their own. In my view, by appointing counsel to represent him against his wishes the AEC violated Hissène Habré's right to be to be represented by counsel of his own choosing. The right to be represented by counsel of the accused’s own choosing is a fundamental right of the accused as provided for by most international and regional human rights instruments such as the ICCPR and the ECHR. In particular, Article 4 (d) of the AEC Statute provides that an accused person has a right "to conduct the defense in person or through legal assistance of the accused's choosing" (emphasis added). There are many rationales of the right of an accused person to be represented by counsel of their own choosing, among them being the fact that it gives the defendant the opportunity to participate in his defense. Additionally, counsel may be viewed as a representative of the accused person who speaks on his behalf. Admittedly, in civil law countries with inquisitorial systems, it is not uncommon for the courts to appoint counsel to represent accused persons against their own will. However, the practice is less common in common law countries where the system is adversarial. The AEC is a hybrid tribunal, which mixed the practices of both common law and civil law countries although the proceedings were mostly adversarial. It is noteworthy that the AEC Statute, which governs the practice of the AEC, provides that the accused had the right to self-representation or to be represented by counsel of his own choosing. Because Habré rejected the Court appointed counsel, he should have been permitted to either represent himself or to remain silent as is the right of an accused person. Having counsel, who cannot speak on behalf of the accused and who mount a defense without consulting the accused does not contribute to the realization of the right of an accused person.

Because of the nature of the crimes committed, the impunity with which they were committed, the number of victims affected and the time it took to try Habré, there was a lot of emotional outrage surrounding the trial.  Therefore, a decision to try Habré in absentia following his refusal to attend his trial, which was the right thing to do, as per the interpretation of the Human Rights Committee above, would not have sat well with the victims and the general public. The AEC gave in to the public emotion by forcefully dragging him into court thereby violating his right to personal integrity. Similarly, when Habré's counsel refused to attend the trial, the AEC once again violated the rights of the accused as laid down in the AEC Statute to be represented by counsel of his own choosing. The AEC should have either allowed self-representation as provided by the Statute or allowed him to remain silent and present no defense.

The rights of an accused person are one of the fundamental components of due process without which a trial cannot be said to be fair. As Robert Jackson, the Chief Counsel for the Prosecution in Nuremberg stated, "To pass these defendants a poisoned chalice is to put it to our lips as well". Despite the fact that the trial at the EAC was a positive development in international criminal justice in Africa, , the violation of Hissène Habré’s rights amounted to the AEC putting the proverbial poisoned chalice to its own mouth and thereby poisoning what was otherwise a good initiative and a step in the right direction.

Guest Post by Phoebe Oyugi (Phoebe Oyugi is a Kenyan lawyer who specialises in International Criminal Law, International Human Rights Law and International Humanitarian law. She currently works as a case manager and consultant in the Defence team of Charles Blé Goudé at the International Criminal Court)


  1. Hi Phoebe, I found your paper very interesting and it give to me some really nice food for thought. I agree with you on the point of the "first violation". Just a note (keeping in mind that I do not have all the facts on the way he was was dragged to the court room - handcuffs, media presence...?) it may also be interesting to analyse as well the effect of such action to his right to be presumed innocent as according to the jurisprudence of the ECtHR. In regard to the second violation, i first have to admit, that I am not familiar with the whole procedure of appointing the counsels against Habre's wishes, but it has been thus far recognized by ECtHR and the international criminal tribunals that the right of a lawyer of one's choosing is not absolute and the court can appoint a counsel against the defendant's wishes if the interest of justice requires so (for the overview of the jurisprudence I recommend the ECCC TC Decision on the Appointment of Court Appointed Standby Counsel for KHIEU Samphan since it was one of the latest ones). Keeping this in mind, I wonder what are your thoughts in regard to the jurisprudence of international tribunals with mixed systems as well. And taking into account that the right is not absolute, the interference with his right to a lawyer of his own choosing has to be weighted with the aim that the interference was pursuing. In this regard do you think that a counsel isn't essential even if defendant wish to remain silent considering that the role of the counsels goes beyond just mounting the defence from the factual point of view (such as raising more technical/procedural objections, legal defences...), especially when the charges and procedure raise some legally complex issues (to pursue in a way the equality of arms).

    1. Thank you for the comment. Very thought provoking. About the first violation, I like the angle you bring in about the potential interference with his right to to presumption of innocence. I will have a look at the ECtHr jurisprudence. About the second point, admittedly the right to counsel of the accused's own choosing is not absolute, and I do agree that this right needs to be weighed against the interests of justice. I however felt it was worth mentioning that Habre was forced to have counsel he never consulted with in the end. Perhaps it was not a violation of his right per se but still a topic worthy of discussion in my view. I should have nuanced the argument a bit. but there is only so much one can say in a thousand words...I will include some of the ideas in he academic article. Thanks again for your insightful comment.