Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (52 page)

The Truth Commission included in its report not only the names but the photographs of the principal DDS agents. The Commission stressed the necessity of removing DDS agents who had been reintegrated into the army, the police force, or the new
CRCR, which replaced the DDS. The Truth Commission thus called on the government “to relieve of their duties, immediately upon publication of this report, the DDS agents who have been reintegrated and engaged in general activities with the CRCR” as well as “to immediately pursue justice against those participating in this horrible genocide, who are
responsible for crimes against humanity.”
[14]

The Truth Commission also recommended to “construct a monument honoring the memory of the victims of Habré's repression,” to “designate a day for prayer and contemplation for the victims,” and to “transform the former DDS headquarters and underground prison known as the
‘Piscine’ into a museum.” It also called for the creation of a National Human Rights Commission.

The written report was presented to President Déby and the Chadian government, who also watched the film on a borrowed projector. The Commission's headquarters were then opened to the public for several
days to come view the film and see a display of pictures prepared by the commission. According to Maître Abakar, “the public fought to get in.”
[15]
The report was widely covered in the national press.

Although the decree creating the Commission did not mention the report's publication, on the advice of Amnesty's Chad researcher, Jamal Benomar, Maître Abakar pushed to have the report published. When the Chadian government considered this too expensive, Maître Abakar arranged the publication with a French publishing house.

Also following Habré's fall, former victims of his regime from different ethnic groups created the Chadian Association of Victims of Political Repression and Crime (
AVCRP) to locate victims, establish an inventory of unjustly confiscated and stolen goods, pursue the perpetrators of these crimes, demand compensation of victims, inform Chadians and the international community of the repression and “to prevent, denounce and fight against all forms of political crime and repression.”
[16]
The AVCRP helped the Truth Commisison locate victims and encouraged them to give their testimony.

The
AVCRP, a rare multi‐ethnic group in a country ravaged by north–south divisions, was led by a number of extremely committed and idealistic survivors. Chief among them was Souleymane
Guengueng, a modest and deeply religious civil servant who watched hundreds of cell‐mates perish from torture and disease during two years in Habré's prisons, and took an oath before God that if he ever got out of jail alive, he would bring his tormentors to justice. As the
New York Times
described him:

 

He cut the figure of a most ordinary man: the threadbare gray suit of the nondescript style favored by midranking civil servants; the thick, owlish eyeglasses that emphasized his training as an accountant; the slight build that suggested he ate just enough.

But on a continent where ordinary men are tortured, killed and forgotten without a second thought, Mr. Guengueng, 52, has done something extraordinary: fought back. After being unjustly imprisoned and tortured for two years in the late 1980s, he spent the next decade gathering testimony from fellow victims and their families.
[17]

 

Guengueng and his colleagues gathered information and testimonies from 792 of Habré's victims, anticipating their use in actions to win compensation and an eventual case against Habré.

Despite the Truth Commission report, it soon became apparent that the new government would not follow through on its promises of justice. With the exception of the establishment of the National Human Rights Commission, none of the Commission's major recommendations has been implemented. The general opinion of Chadians is that the government no longer saw any advantage from pressing these issues. First and foremost, the Déby government itself began to exhibit authoritarian tendencies, making justice for past crimes a dangerous precedent. Second, many of Habré's henchmen implicated by the report now worked for Déby (and Déby himself had served Habré for many years). As
Amnesty International put it, “shortly after [Déby] came to power . . . the same practices, the same violations and even the same perpetrators reappeared.”
[18]
According to
Souleymane Guengueng, the prime minister at the time told him that the Truth Commission report was thus a “double‐edged sword.”

The National Sovereign Conference of 1993, which brought together all sectors of Chadian society, repeated the call for the “revocation of those
DDS members responsible for embezzlement, torture and political crimes who continue to flourish or to work within the
CRCR,” as well as the implementation of the Truth Commission's recommendations, the paying of damages to Habré's victims and the creation of a special independent criminal court to try violent crimes, expropriations and embezzlements. No action was taken, however.

Chad's international patrons, the United States and France, did not press the matter. No international NGOs were sufficiently invested in Chad to keep the issue alive. The national human rights community was not strong enough, and the
AVCRP lacked the political clout. Indeed, without financial resources or the support of the government, the AVCRP was forced to temporarily abandon its work. The evidence gathered by the
AVCRP was literally buried away by Souleyamane Guengueng and another
AVCRP member, Samuel Togoto, under their
houses.

Chadian NGOs never lost interest in bringing Hissène Habré to justice in his Senegalese exile, but did not have the resources or the know‐how to do so. The Chadian government did institute a successful lawsuit in Senegal to recover the airplane in which Habré fled. In 1998, Chad's
then Justice Minister Limane Mahamat publicly said that Chad would
seek Habré's extradition from Senegal, but no request was actually made. The Chadian government also commissioned lawyers, including Truth Commission president Mohamat Hassan
Abakar, to help recover Habré's ill‐gotten gains, but never gave the lawyers any money to begin their work.

Then in early 1999, with the “Pinochet precedent”
[19]
in mind, Delphine Djiraibe, President of the Chadian Association for the
Promotion and Defense of Human Rights, requested
Human Rights Watch's assistance in bringing Habré to justice in Senegal. Senegal's democratic tradition, its relatively independent judiciary, and its leadership role on international rights issues
[20]
made it conceivable that such a prosecution could be successful. The involvement of Human Rights Watch would substantially change the picture, both in the prosecution of Habré and, to a lesser degree, on the justice front in Chad.

Human Rights Watch sent two missions to Chad, where investigators met the remaining faithful of the moribund
AVCRP who provided them with the thousands of pages of documentation they had hidden away in 1992. Working in secret, because of fears that someone, including Chadian officials, might tip off Habré who could then flee Senegal for a more protective shelter, the researchers were introduced to victims and potential witnesses and sought documentation of Habré's crimes. Meanwhile, Human Rights Watch quietly organized a coalition of Chadian, Senegalese and international NGOs, including the International
Federation of Human Rights Leagues (FIDH) to support the complaint,
[21]
as well as a group of Senegalese lawyers to represent the victims.

In January 2000, with the assistance of
Human Rights Watch and other NGOs, the Chadian victims filed a criminal complaint against Hissène Habré in the Dakar Regional Court in Senegal.
[22]
In the complaint, the plaintiffs, seven individual Chadians – several of whom came to Senegal – as well as the AVCRP,
[23]
accused Habré of torture and crimes against humanity. The torture charges were based on the Senegalese statute on torture as well as the 1984 United Nations
Convention against Torture, which Senegal ratified in 1986.
[24]
The
groups also cited Senegal's obligations under customary international law to prosecute those accused of crimes against humanity. The case was filed on the eve of Senegal's tightly contested presidential election campaign in the hopes that the ruling party would not want to be seen protecting a brutal dictator.

In the court papers presented to
Juge d'Instruction
(Investigating Judge) Demba Kandji, the groups provided details from the
AVCRP files of 97 political killings, 142 cases of torture, 100 “disappearances,” and 736 arbitrary arrests, most carried out by the
DDS, as well as a 1992 report by a French medical team on torture under Habré, and the Chadian Truth Commission report. The groups also furnished documents describing how Habré placed the DDS under his direct supervision, staffed it with his close friends, and required that it report regularly to him. Over two days, Kandji also heard the testimony of six of Habré's victims.

On February 3, 2000, Kandji indicted Hissène Habré as an accomplice to torture and crimes against humanity and placed him under house arrest. For the first time, a former head of state was prosecuted by the country in which he had taken refuge. The indictment was leading news across the continent. Radio France Internationale, a station listened to throughout francophone Africa, had been carrying stories on the case almost daily.
Jeune Afrique
, the most important weekly magazine for the region, featured a picture of Habré leaving the courthouse on its cover, as well as interviews with the plaintiffs, an editorial and a profile of Judge Kandji.
[25]
The Senegalese press gave prominent, and almost always positive, coverage to the case during the initial stages.

Unfortunately, politics then entered the picture. The newly elected president of Senegal, Abdoulaye
Wade, declared that Habré would not be tried in Senegal. He variously argued that Senegal did not have the resources to bring witnesses and proof to Senegal, that the case had nothing to do with Senegal and that Chad itself did not seem keen to see Habré prosecuted.
Wade was said to be under pressure from a number of African heads of state not to prosecute Habré – and create a bad precedent for them. In addition, there were rumors that Habré had used his ill‐gotten gains from Chad to win friends and influence the judicial system. Habré was known to enjoy the protection of one of the powerful Muslim
confréries
(brotherhoods).

When Habré's lawyer moved to dismiss the case, asserting that Senegalese courts had no competence over crimes committed in Chad, the prosecutor's office, in a reversal, joined his motion. A state panel
transferred Judge Kandji off the case.

The “no safe haven” provisions of the
UN Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment oblige Senegal to either prosecute or extradite alleged torturers who enter its territory.
[26]
Under the Senegalese constitution, such international treaties apply automatically.
[27]
An appeals court nevertheless ruled, on July 4, 2000, that Senegalese courts had no competence to pursue crimes that were
not committed in Senegal.
[28]
The court found that “Senegalese courts do not have competence over acts of torture committed by a foreigner outside of Senegalese territory regardless of the nationality of the victims.”
[29]
The court also rejected charges of crimes against humanity, asserting that Senegalese positive law contained no such crime.

The victims immediately appealed the decision to the Supreme Court of Appeals (
Cour de Cassation
), Senegal's court of final appeals, but the
Cour de Cassation
upheld the ruling on March 20, 2001, saying that “no procedural law gives the Senegalese courts
universal jurisdiction to prosecute and to try accused [torturers] who are found on Senegalese territory when the acts were committed outside of Senegal by foreigners; the presence of Hissène Habré in Senegal cannot
in and of itself be ground for the prosecution against him.”
[30]

Even before the final ruling, the victims, with the support of the same coalition, had quietly filed a case against Habré in Belgium, whose universal jurisdiction law (prior to recent amendments) allowed Belgium's courts to prosecute the worst international crimes no matter where or against whom they were committed. These cases were filed by 21 victims, three of whom have Belgian nationality, and were assigned to Judge
Daniel Fransen of the Brussels district court. The victims publicly revealed the Belgian case after the
Cour de Cassation
defeat, and also announced their intention to file a petition against Senegal
before the UN Committee Against Torture (CAT), seeking the views of the Committee that Senegal amend its laws to explicitly provide for the prosecution of alleged torturers, and either initiate a state investigation against Habré or compensate the victims.

In April 2001, shortly after the
Cour de Cassation
decision, Senegal's President Abdoulaye
Wade declared publicly that he had given Habré one month to leave Senegal. The abrupt decision was a tribute to the victims' efforts, but raised the possibility that Habré would go to a country out of justice's reach. The victims immediately contacted dozens of potential havens to warn that they would pursue Habré wherever he went. A number of governments, including Pakistan, Mauritania and Madagascar, pledged that they would not accept Habré.