Extraordinary African Chambers Research Articles

ECOWAS Court of Justice: its linkage with the African Charter on Human and People’s Rights

This article considers the Community Court of Justice (CCJ) of the Economic Community of West African States (ECOWAS) and its linkage with the African Charter of Human and People’s Rights (ACHPR). No doubt when ECOWAS was established in 1975, the main objective was the economic integration of the sub-regional body. At the beginning, the CCJ was listed as one of the mandates of the economic bloc, but it was not until 1991 that the first Protocol which created the CCJ and which gives its composition and its functioning was adopted. The Revised Treaty of 1993 also provided for the establishment of the CCJ in its Article 15. The Protocol now makes references to the African Charter on Human and Peoples Rights (ACHPR) of the African Union (AU). Not only this, the Protocol also made reference to other international human rights instruments. The main objective of this work is to bring to fore that the jurisdiction of the CCJ is expansive and broad, and that the CCJ failed to utilise the expansive jurisdiction in the matter of the late President of Chad, Hissene Habre, against the Republic of Senegal, by ruling that the Senegalese court could not try him because this will violate the principle of non-retroactivity of penal law. This ruling led to the establishment of the Extraordinary African Chambers (a special criminal tribunal) that later tried Habre. Also, where it is appropriate and desirable, a comparison between, on the one hand, the CCJ and, on the other hand, African sub-regional courts and courts of international organisations will be made. It is also the contention of this article that the CCJ ought to have an Appeal Chambers, as a core international best practice. This work will adopt the doctrinal methodology and the data collection method is content analysis.

To Catch a Dictator: The Pursuit and Trial of Hissène Habré by Reed Brody

Reviewed by: To Catch a Dictator: The Pursuit and Trial of Hissène Habré by Reed Brody Naomi Roht-Arriaza (bio) Reed Brody, To Catch a Dictator: The Pursuit and Trial of Hissène Habré (Columbia University Press 2022), ISBN 9780231202589, 296 pages. When the verdict was announced in a Dakar courtroom in May 2016, it marked the culmination of a decades-long effort to bring Chad’s former dictator, Hissène Habré, to justice for crimes against humanity. It was also the first time that domestic courts located outside the country where the crimes took place brought a former head of state to justice for international crimes. The remarkable saga of the Habré case is told in a recent book by Reed Brody, former counsel at Human Rights Watch (HRW) and a key actor in supporting, guiding, and backing the case over many years. The book is required reading for anyone interested in international justice or human rights, but it’s also a moving meditation on the effect of North-South power dynamics on activists, the personal toll on those involved of continuing to fight, and all the ways in which the stars must align for justice to prevail. Habré ruled Chad from 1982 to 1990. According to one of the first truth commissions, established after his overthrow, he killed at least 40,000 people, tortured thousands, razed villages, and attacked ethnic groups he perceived as potential opponents. He was supported in this by the US Reagan administration, which saw him as a bulwark against Libyan leader Mohamar Qaddafi, and by the French. Eventually, he was removed in a coup, and took up a gilded exile in Senegal, helped by the millions he stole from the Chadian treasury. Brody tells the story of Habré’s misrule succinctly, but most of the book focuses on his victims and their almost forty-year struggle for justice. He writes chronologically about the investigation and trial, focusing on major incidents, twists and turns, and the strategic decisions (good and bad) that drove the process. I. EVERYTHINGEVERYWHERE ALL AT ONCE One of the takeaways from the book involves the need for those seeking justice to look everywhere, and to play multilevel chess. Dictators and war criminals have huge advantages of money, contacts, and powerful networks to protect them. To fight back, advocates and victims must use all the avenues they can simultaneously and sequentially. This insight isn’t unique to the team pursuing Habré: the efforts to bring Augusto Pinochet to justice in the 1990s spanned not only Spain and the United Kingdom (as well as Chile, of course), but also Belgium, Argentina, France, and other possible forums.1 As both Brody and Chadian lawyer for the victims Jacqueline Moudeïna (in a foreword) note, the precedent of Pinochet’s arrest in London, and its positive impact on both prosecutions in Chile and on efforts to use universal [End Page 335] jurisdiction against despots elsewhere, were important to the Chadians as they considered their strategy. But more than any previous efforts, the Habré case drew on a wealth of international and regional forums and strategically combined them. When it looked like the Senegalese government would expel Habré, putting him beyond the reach of justice, lawyers for the victims went to the UN Committee on Torture to pressure Senegal to honor its “extradite or prosecute” commitments under the Convention Against Torture.2 When Senegal refused to act on a Belgian request to extradite Habré for trial in Belgium or to try him in Senegal, they convinced the Belgian government to complain to the International Court of Justice (ICJ). The ICJ’s subsequent decision was a huge win for human rights advocates, establishing that the extradite or prosecute provisions of the Torture Convention (and other human rights, anti-terrorist act, and anti-corruption treaties) could not be indefinitely ignored or delayed.3 The African Union (AU) eventually became a key political actor in creating the Extraordinary African Chambers (EAC) that convicted Habré. Brody’s book, written for a general audience, doesn’t detail the legal background, structure, and operations of the court that eventually tried and convicted Habré. But it’s worth pausing a moment to...

Optics, Aged Witnesses and Aged Defendants: Habré at the Extraordinary African Chambers

Abstract The prosecution of international crimes in domestic and international criminal justice systems may involve aged defendants. Such prosecutions often implicate aged witnesses as well. There is a dearth of literature not only on the expressive value and optics of punishing aged defendants but also on the role of aged witnesses in the trial process. The need to interrogate these optics and perceptions—be it from an empirical or a theoretical perspective—is not only necessary, it is also timely. This article assesses the prosecution of Chadian dictator Hissène Habré in 2015–2016 at the Extraordinary African Chambers. This trial not only concerned an aged defendant, but also over 90 witnesses, the majority of whom was aged. This article explores the dialectics between the optics of punishing aged defendants and the optics of aged witnesses at the Habré trial.

Hybrid court resilience and the selection of cases

AbstractThe article explores the extent to which the resilience of hybrid courts is impacted by their selection of cases. It proceeds from the observation that the cases pursued by hybrid institutions are the result of choice under constraints. The article examines the identity of the case-choosers and the relevance of such choices for the internal and external resilience of hybrid courts. The research reveals the need to distinguish between case selection by the drafters and case selection by court authorities in the context of each institution and the tensions between these two sets of practices. These tensions are examined in the context of four hybrid institutions. The Office of the Prosecutor at the Special Court for Sierra Leone enjoyed a relatively broad measure of discretion in terms of case selection. However, the Extraordinary African Chambers, the Cambodia Chambers and the Kosovo Specialist Chambers seem to have been established with specific accused in mind. The article argues that resilience considerations are probably relevant in instances of case selection by the court officers, albeit they are context sensitive and may vary over time. Case selection prior to the establishment of a court and/or by political stakeholders, on the other hand, is ill-suited for analysis using internal resilience and arguably fall outside its scope of application. For these cases, the research argues that the discussion requires re-orientation with emphasis shifted to concepts such as contribution to national reconciliation as opposed to resistance to external pressure.

Universal Jurisdiction and the Extraordinary African Chambers in the Senegalese Judicial System: Towards a Replicable Enforcement Model?

On 22 August 2012, the Republic of Senegal and the African Union agreed to create the Extraordinary African Chambers (EACs) within the Senegalese judicial system. The Chambers’ mission would be to try Hissène Habré for international crimes he had allegedly committed while he was President of the Republic of Chad (1982–1990). The Agreement recognised that even before its conclusion, Senegal enjoyed jurisdiction to try Habré and was even obliged to do so – unless it extradites him -. Senegal’s jurisdiction was based on the universality principle. The success of the trial – i.e. the conclusion of the criminal aspect of the proceedings – has brought some stakeholders to think and declare that a new enforcement mechanism of universal jurisdiction had been found. They argued that it could be generalised. This article questions that view. It first recalls the context in which the Chambers were created. The purpose is to demonstrate that their setting up resulted from a historical accident rather than a well thought out policy. The essential element of that context is the controversial judgment of the Court of Justice of the Economic Community of Western African States (ECOWAS). The article then undertakes a detailed presentation of the Chambers as a judicial institution, emphasising their composition. It finds out that the rationale behind the hybridity was the mere concern to comply with the judgment of the ECOWAS Court. At no point was the discussion about pursuing hybridity for its (alleged) intrinsic advantages. Lastly, the article balances the possible value-added of an EACs-like formula against the risks it presents when it comes to the enforcement of universal jurisdiction. It finds out that while the formula has no apparent advantages, there are risks attached to it. The most important of these is that it would decrease the likelihood of trials based on the universality principle in Africa.

Victims and Reparations in International Criminal Justice: African Initiatives

Two important African criminal justice initiatives, namely, the Extraordinary African Chambers (eac) and the International Criminal Law Section of the African Court of Justice and Human and Peoples’ Rights (acjhr-icls), illustrate the trend whereby victims can claim and receive reparations at international/hybrid criminal tribunals (icts). The International Criminal Court (icc) started this trend. This article will examine whether the eac and acjhr-icls can contribute to victims’ status as reparations claimants on substantive, procedural and institutional levels. The eac-Statute as applied in Habré and the acjhr-Statute constitute the primary sources of analysis as complemented by inter alia the law and/or practice of the icc, Extraordinary Chambers in the Courts of Cambodia (eccc) and the African Court on Human and Peoples’ Rights (ACtHPR). This article generally finds that the realisation of victims’ right to reparations at the eac and acjhr-icls depends on how normative and implementation deficits and challenges are handled.

Beyond ‘African Solutions to African Problems’ at the Extraordinary African Chambers and ‘Distant Justice’ at the International Criminal Court

Abstract The trial of Chad’s former President Hissène Habré in 2015 was heartily anticipated and then heralded as an ‘African solution to African problems’. In myriad ways, the Extraordinary African Chambers (EAC) in Senegal’s court system indeed picketed a momentous transitional justice experience. It was simultaneously international, regional and local. It applied the universal jurisdiction principle. It judged a former and foreign head of state. It dealt with a ‘cold case’ from the Cold War. This was unprecedented in Africa and elsewhere. Crucially, the Habré trial departed from a ‘distant’, alienating trend of symbolic justice for African atrocities promised by the International Criminal Court (ICC). In Dakar, justice was pursued, performed and profited by those indirectly and directly victimized by the accused, while the passionate courtroom dynamics were palatably and transparently broadcasted. Notwithstanding these topical novelties, this article traces a more complex, more remote, and at times forgotten genealogy of transitional justice in Africa. By historicizing, contextualizing and exemplifying the Habré trial in light of unseen precedents from, inter alia, Congo Free State, Namibia, Equatorial Guinea and Ethiopia, it seeks to add historical layers of complexity to portrayals of Africa as passive object in the evolution of international criminal justice.

Victims’ Justice? Reparations and Asset Forfeiture at the Extraordinary African Chambers

AbstractThis article critically analyses the reparations and asset forfeiture framework at the Extraordinary African Chambers and its application in the case against Hissène Habré. It identifies obstacles to implementing the reparations awarded and calls for states and international organizations to support their realization for the sake of Habré’s victims, without whose efforts the tribunal might not exist. It argues that international(ized) criminal tribunals should more readily utilize fines and forfeiture as penalties to alleviate the pressure on trust funds to implement reparations awards, particularly in cases where convicted persons possess substantial assets. Lastly, in light of the requirement that assets susceptible to forfeiture orders be derived directly or indirectly from the crime(s) of which a person is found guilty, the article questions the failure of the prosecutor to charge Habré with the war crime of pillage, despite its availability in the tribunal's statute and the finding that the suffering of many of Habré’s victims entitled to individual compensation resulted from pillage.

Gouverner C’est Prévoir – Trappings of Value Distribution: a Prolegomenon to the African Union’s Hissène Habré Trust Fund for Victims

Abstract Since Hissène Habré’s Judgment by the Extraordinary African Chambers (EAC), the world has anxiously awaited the processes that the African Union (AU) would put in place for the amelioration of the victims’ circumstances. Pursuant to the AU’s pledge and unfaltering support for the EAC, in early 2018 the AU Heads of State and Government Assembly adopted a Statute establishing the Hissène Habré Victims Trust Fund. It is anticipated that the Fund is likely to be an unsteady vehicle facing numerous challenges regarding law and policy formulation, interpretation and implementation, such as flawed decision-making processes, and a lack of proper policy direction and State cooperation, which have the potential of heavily impeding this international criminal justice enterprise. However, there exists an opportunistic trajectory for the Fund as the current trends, practices and rich jurisprudence of other criminal tribunals and courts can inform the Fund’s processes and positions. The Fund’s decision-makers should make a concerted effort in a sturdy and convergent direction that mirrors the victims’ potential values, consonant outcomes and responsibilities.

Bringing the former president of Chad H. Habré to justice and the Extraordinary African Chambers

Hissene Habre seized power in Chad as a result of long civil war in 1982 and organized largescale repressions of his political enemies during his rule. In 1990, he was deposed by a military coup and fled to Senegal, where he got asylum. This paper discusses the institutional aspects of the legal prosecution of H. Habre, which began in 2003 when proceedings against him were instituted in Belgium, and analyzes the Judgment of the UN International Court of Justice in the case of Belgium v. Senegal of 2012. Much attention is paid to the special international court — the Extraordinary African Chambers in the Senegalese legal system that were established by the Agreement between the African Union and Senegal in 2012 to investigate international crimes committed on the territory of Chad from 1982 to 1990. This paper analyzes the structure of the Extraordinary African Chambers and their jurisdiction. In 2016, the Extraordinary African Chambers sentenced H. Habre to life imprisonment, and this verdict came into force in 2017. According to the author’s opinion, the trial of H. Habre has important political and juridical meaning. A politician, who had come to power with the help of the United States and other Western countries and who had been their strong ally during his rule, protecting their interests in Central Africa, was brought to justice.

In search of international criminal justice in Africa: What role for the United Nations?

ABSTRACTThe International Criminal Court (ICC) ran into considerable controversy almost immediately after its creation. More than 10 years later, the tension between the court and the AU is palpable. The court’s perceived political prosecutions as well as procedural flaws in light of the power bestowed on the UN Security Council under Article 13(b) of the Rome Statute are some of the areas of contention. However, despite the obvious flaws of the ICC, there is also widespread scepticism that the AU can be trusted to mobilise sufficient political will to deliver justice on the continent, more so in cases where the perpetrators are sitting heads of state or government. In lieu of cooperation with the ICC and the UN, can the AU deliver justice to victims of gross human rights abuses? Are extraordinary African Chambers such as the one created in Senegal to try the former Chadian dictator Hissene Habre an alternative to the ICC? This article argues that it is only through a partnership of convenience between the AU and the UN that victims of human rights abuses on the continent can access justice. Furthermore, the article opines that calls for African states to withdraw from the ICC en mass must be vigorously opposed.

The trial against Hissène Habré: networked justice and reparations at the Extraordinary African Chambers

ABSTRACTThe establishment of the Extraordinary African Chambers to try former Chadian President Hissène Habré has been hailed as a novel form of prosecuting international crimes in Africa. The Court’s establishment marked the end of more than two decades of persistent lobbying by a network of victim associations and civil society organisations – a phenomenon that is referred to here as ‘networked justice’. This article shows that the characteristics of a network often determine the reach and outcomes of networked justice at local and international levels. In the case of the Habré trial, the network’s primary goal of setting an international legal precedent through universal jurisdiction defined the tools and strategies chosen to achieve the goal. This article shows how these dynamics were transposed to the trial against Habré and the reparations phase. The take-up of sexual violence at trial is highlighted as one example of networked justice in action. By returning to Chad, this article considers the potential of reparations as a tool for carrying over effects from an internationalised justice process to the domestic level, and concludes with some observations about the possibilities and limitations of networked justice approaches in stimulating processes of transformation and change at the locations where justice demands originated.

Human rights developments in the African Union during 2016

During the year 2016 several significant normative developments were recorded in the African human rights system. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa was adopted but is yet to be ratified by any member state. The African Court delivered three merit decisions dealing with the right to fair trial and the right to political participation: a judgment on reparations; one ruling on jurisdiction; and one ruling on a review application. Despite this positive outlook, Rwanda’s withdrawal of its article 34(6) declaration allowing direct access by individuals and NGOs posed a real challenge to the Court’s legitimacy in cases with sensitive political implications. Both the African Commission and African Children’s Committee made progress on the examination of state reports. As far as communications are concerned, the African Commission delivered seven merit decisions, while the African Children’s Committee delivered two decisions on the merits and one ruling on admissibility. The African Children’s Committee’s decision on the age of childhood in Malawi, which was reached through an amicable settlement, led to constitutional amendments increasing the age of adulthood from 16 to 18 years. Finally, the trial and conviction of former Chadian dictator, Hissene Habre, by the Extraordinary African Chambers served as a breath of fresh air in the fight against impunity for human rights violations in Africa.

The Legality of the Extraordinary African Chambers on the Light of the International Criminal Tribunals: The Case of Hussein Habre

Background/Objectives: 30th of May 2016, The Extraordinary African Chambers (EAC) in its verdict sentenced the Former President of the Republic of Chad Mr. Hussein Habre to life imprisonment. Mr. Hussein Habre was charged for committing international crimes during his Presidency from 1982 to 1990. Methods: Thus, to achieve the objectives of the work have been used analysis, comparative, historic and deduction method of research. The analyzed and comparative documents are the sources of the already created international criminal courts and other court decisions to justify the legality of the EAC. The attention is drawn to the Decisions of the International Court of Justice (ICJ), Court of Economic Community of West African States (ECOWAS) and other national courts such Senegal and Belgium. Findings: According to our analysis all the International Criminal Tribunals (ICT) have been created by the United Nations as a legal entity through the Security Council Decisions .Both states and legal entities with general competences entitled to create such court in terms of International Law. In this point of view, the creation of the EAC by the African Union as a legal entity with general competences in Africa is founded and no contrary to the current International Law .On other hand, the nature of the crimes committed by the accused and his status as former President with an asylum in another country has required the necessity of the creation of the EAC. The result of analytic and comparative studies of the research confirms the legality of the EAC as attested by the Decision of the Court of ECOWAS. Thus, the article through the analytic, comparative and historic methods of study shows that the EAC as a hybrid International Criminal Tribunal is legal in terms of theory and practices of current International Law. Applications/improvements: The creation of the EAC in Africa can serve an example to avoid impunity for international crimes. This approach may improve the practice of the International Criminal law. Keywords: African Union, Current International Law, Extraordinary African Chambers, International Crimes, International Criminal Law, International Criminal Tribunals

Agreement between the Government of the Republic of Senegal and the African Union on the Establishment of Extraordinary African Chambers within the Senegalese Judicial System

Agreement between the Government of the Republic of Senegal and the African Union on the Establishment of Extraordinary African Chambers within the Senegalese Judicial System

Additional Agreement Relating to the Statute of the Extraordinary African Chambers for the Prosecution of International Crimes Committed in Chad 1982-1990

Additional Agreement Relating to the Statute of the Extraordinary African Chambers for the Prosecution of International Crimes Committed in Chad 1982-1990

The First Steps of the Extraordinary African Chambers: A New Mixed Criminal Tribunal?

The First Steps of the Extraordinary African Chambers: A New Mixed Criminal Tribunal?

Political Repression and Dissent in Chad, the Case of Hissene Habre and the Prosecution of Criminal Responsibility in Africa and International Law

This paper focuses on political Repression and Dissent in Chad committed by Hissene Habre and his regime between 1982 to 1990 particularly severe international human rights violation and attempts by the international community to bring him to justice. The paper will look at the political history of Chad, in order to understand the context under which such crimes were committed. Attempts to prosecute Hissene Habre under international law will be examined, including the role of victims living abroad, the role of the government of Chad as well as the role of the African Union. The paper will also look at the legal and political battles that led to the creation of the Extraordinary African Chambers court that has been endowed with the competence to prosecute him and the role of transnational advocacy network groups. The paper will look at the emerging principle of the Responsibility to Protect and its implication in future situations like the case of Chad. The emerging jurisprudence that will arise after the prosecution of Hissene Habre for international crimes committed by him and his regime and its implication in the development of international law and policies will be analyzed.

The Extraordinary African Chambers in the Senegalese Courts: An African Solution to an African Problem?

The establishment of the Extraordinary African Chambers in the Senegalese Courts (EAC) concludes over two decades of efforts to secure a mechanism for the trial of Hissene Habré. The EAC breaks new ground on international criminal justice in Africa in several ways. The Habré trial represents the first trial by an African state of a former head of state of another African state. As the first internationalized tribunal to have been established with the involvement of the African Union, the EAC will also provide valuable insight into what a regional approach to internationalized justice may look like. Furthermore, the EAC sets a precedent for the creation of an internationalized criminal tribunal that operates exclusively on the basis of universal jurisdiction. This article examines a number of legal issues raised by the establishment of the EAC, including its proper characterization as an international criminal tribunal; the reasons for the minimalist approach to the inclusion of international features; the reliance on universal jurisdiction as the basis for an international or internationalized criminal tribunal; and the consistency of the EAC Statute with the nullum crimen sine lege principle.

The Agreement on the Establishment of the Extraordinary African Chambers within the Senegalese Judicial System Between the Government of the Republic Of Senegal and the African Union and the Statute of the Chambers

On August 22, 2012, the Republic of Senegal and the African Union (AU) signed an agreement to create a tribunal within the Senegalese judicial system to prosecute the perpetrators of international law violations in Chad between 1982 and 1990. To be called the Extraordinary African Chambers (Chambers), the tribunal is the result of years of political and judicial bargaining around Hissein Habré, the former President of Chad. The Chambers were inaugurated in February 2013, following the agreement upon a Statute of the Chambers in January 2013. On July 2, 2013, Hissein Habré was charged with crimes against humanity, torture, and war crimes, and placed in pre-trial detention. To date, Habré is the only indictee, but the Prosecutor reportedly intends to seek the indictment of five officials of Habré’s administration suspected of having committed international crimes.