Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (53 page)

The victims also appealed to the UN CAT for provisional measures, and CAT responded by calling on Senegal to “take all necessary measures to prevent Mr. Hissène Habré from leaving the territory of Senegal except pursuant to an extradition demand.”
[31]
Following an appeal by United Nations Secretary‐General Kofi Annan, President
Wade stated
on September 27, 2001, that he had agreed to hold Hissène Habré in Senegal pending an extradition request from a country such as Belgium that was capable of organizing
a fair trial.

After months of pressure from the victims and their supporters, the Chadian government gave permission to Judge Fransen to visit Chad.
[32]
Until news of the Belgian judge's arrival was announced, few Chadians actually believed that the case against Habré would go anywhere. No one was surprised when the Senegalese courts ruled that Habré could not be brought to justice there. Indeed, most Chadians thought the victims were just tilting at windmills.

The actual arrival in February 2002 of seven Belgians – Judge
Fransen, a Brussels prosecutor, four strapping police officers, and a court clerk – with their computers, camcorders, cameras and police equipment, however, turned the abstract case against Habré in far‐off courts into a concrete reality and touched off a frenzy in a country where Habré's most brutal henchmen still occupy most of the key security posts. Many of Habré's people feared that the judge had come to arrest them, and some left the country as they had when the Truth Commission report was released, while others boldly proclaimed their innocence. Habré's victims, meanwhile, began to line up at the courthouse to tell their stories.

With the full cooperation of the Chadian government, the judge and his team took the testimonies of plaintiffs, victims of Hissène Habré, witnesses to atrocities, and even a number of
DDS agents. On a few occasions, the judge allowed victims to confront their tormentors in front of him.
[33]
The judge also visited massacre sites in and around N'Djaména and detention centers from Habré's regime, including the sinister
Piscine
, the DDS underground prison. Each time, the judge was accompanied by former detainees who described the treatment to which they were subjected and indicated the location of graves. The judge also had access to the
DDS archives discovered by Human Rights Watch and consulted and requisitioned thousands of documents.

Judge
Fransen's visit came as Belgium's long‐arm law was increasingly subject to political and legal attack. In 2001, in a widely acclaimed trial, four Rwandans were convicted by a Belgian jury of involvement in the 1994 genocide in their country. Thereafter, however, Belgian politicians grumbled as cases piled up against leaders such as Ariel Sharon, Yasser Arafat and Fidel Castro. In February, after the Democratic Republic of Congo challenged an arrest warrant against its foreign minister, the International Court of Justice said Belgium had gone too far by not respecting the immunity from criminal jurisdiction of sitting officials
of a government, including incumbent heads of state and foreign ministers.
[34]

Human rights groups mobilized to defend the Belgian law. With
Human Rights Watch's help, Chadian victims came to Belgium and met with government ministers, parliamentary leaders and the press. The Habré case, the victims argued, posed no legal or political problems, because Habré was no longer in office and because both Chad, where the crimes were committed, and Senegal, where Habré resides, seem ready to see him tried in Belgium. Indeed, they argued that the Habré case showed that
“universal jurisdiction” laws like Belgium's, properly applied, could be an important tool to curtail impunity for the perpetrators of the worst atrocities and provide a forum for their victims.

Nevertheless, the Habré case almost collapsed in the attacks on the Belgian law. First, dicta in the ICJ case suggested that even former officials enjoyed immunity from jurisdiction for all but “private” acts,
[35]
creating doubt among Belgian authorities as to whether the Habré case could go forward. In October 2002, again after intense lobbying by Chadian and international groups, the Chadian minister of justice put these doubts to rest when he declared in writing to
Judge Fransen that “It is clear that Mr. Hissène Habré cannot claim to have any immunity on the part of the Chadian authorities.”
[36]

More worryingly, pressure from the United States government was leading the Belgian parliament to repeal the
universal jurisdiction law altogether. In meetings with cabinet ministers and legislative leaders, however, the victims and
Human Rights Watch won a “grandfather” clause for the Habré prosecution, convincing the authorities that Belgium could not abandon the Chadian victims to whom it had given hope.

The Habré case is thus moving forward, and
Judge Fransen in September 2005 issued a warrant for his extradition from Senegal. Habré was arrested in November 2005, but a Dakar court refused to rule on the extradition, leaving the decision up to President Wade. Wade, in turn, brought the matter to the Summit of the African Union, which in January 2006 created a Committee of Eminent African Jurists to consider the appropriate venue for action and report back in June 2006. Among the criteria the Committee is to consider are the need to combat impunity, fair trial standards, efficiency and cost, accessibility to victims, and “priority for an African mechanism.”
[37]
Thus, over six years since the case was filed, it is again in limbo. This slowness has been demoralizing for the chief activists in the case who have struggled to keep the hopes of their constituents alive. It has also created financial problems for the coalition as it tries to maintain its
structures in place, ready to engage in the next steps of the fight.

Just as General Augusto Pinochet's arrest in Great Britain shattered the myth of his impunity in Chile, the indictment of Habré in Senegal had an immediate impact in Chad, opening new channels for justice. The victims and human rights organizations who initiated the case against Habré in Senegal gained a new status in Chadian society, having accomplished something that no one had thought remotely possible.

Chad, of course, is not Chile. While today's situation does not resemble the terror‐filled years of Habré's rule, Chad remains an authoritarian country with largely unaccountable rulers. As the most recent State Department country report notes, “Despite the country's multiparty system of government, power remains concentrated in the hands of a northern ethnic oligarchy and its allies, resulting in a culture of impunity for minority ... [T]he judiciary remained ineffective, underfunded, overburdened, and subject to executive interference.”
[38]

The Chadian government's attitude towards the Habré case has never been fully clear. In a country split along north–south lines, Hissène Habré massacred ethnic groups on both sides. His final victims were the
Zaghawas, the group of current president
Idriss Déby. At the same time, many high officials of the current government also participated in Habré‐era crimes. Déby himself commanded Habré's forces in the south during the
“Black September” period.

The Chadian government was clearly caught off‐guard by the prosecution in Dakar. It had famously failed to seek Habré's extradition, and probably feared the effects of a full airing of the facts, but it had also built its legitimacy partly on the demonization of the former leader. After a few days of silence, the government announced that the Habré prosecution was a logical continuation of the work it had begun with the Truth Commission. The victims and the human rights groups, through
Human Rights Watch, got funding to pursue investigations into Habré's crimes and announced their intention to file criminal charges in Chadian courts against their direct torturers and to seek compensation for their losses. On September 27, 2000, President
Idriss Déby met with the
AVCRP's leadership to tell them that “the time for justice has come”
[39]
and that he would “remove all obstacles, from inside Chad or abroad” to their quest for justice.

For several years now, the Chadian government has indeed supported the international cases filed against Habré. This support manifested itself most vividly when the Belgian judge visited N'Djaména from February to March 2002 with the full cooperation and support of the Chadian government. The Chadian government also granted the victims and their
supporters unlimited access to the
DDS archives, and it lifted Habré's immunity from jurisdiction before Belgian courts in October 2002.

As important as Habré's judgment by a foreign tribunal is, however, it would not guarantee full justice to the victims of his regime nor would it permit Chadian society to confront its past before finally moving on. Unfortunately, the Chadian government has not taken complementary measures at home to ensure such justice.

Despite the Truth Commission's recommendations, Habré's accomplices continue to enjoy impunity for their acts. More than 40 ex‐leaders of the DDS today hold key posts in administration or security services of the state, thereby further slowing the possibility of one day achieving real and definitive stability in Chad.

For example, an ex‐DDS chief who was accused by his victims of torture is currently the national police chief's secretary. Of the three ex‐DDS directors still in Chad, one is the regional delegate of the national police, a second is a regional governor, and a third works for the ministry of communications. One of the “most brutal torturers” of the
DDS, to quote the Truth Commission, is now a local police commander. An ex‐DDS chief against whom many cases of torture were filed is the current chief of airport security at N'Djamena's international airport. A former director of national security under Habré now occupies the post of national co‐coordinator of the country's petroleum zone, and an ex‐DDS deputy director of national security is now the director of the judicial police.

During a speech made in N'Djamena in June of 2003, Ismael Hachim, the President of the
AVCRP, stated: “Our torturers and killers wander freely among us every day without fear of the justice through which we filed our cases . . . Our tormentors continue to laugh in the face of a justice that remains powerless to punish those responsible and their accomplices.”
[40]

As decribed by Mr. Hachim, the presence of former Habré henchmen in positions of power within the Chadian administration has a corrosive effect on Chadian society and only serves to encourage intimidations and aggressions against human rights defenders and those fighting for justice in Chad.

The aggression against Jacqueline Moudeïna, the Chadian lawyer for Habré's victims in the Chadian cases against the ex‐DDS agents (see
below), and its aftermath, is evidence that the power of these former
agents stands in the way of justice for Habré's victims. Maître Moudeïna was the victim of a hand‐grenade attack on June 11, 2001, while she was participating in a non‐violent women's demonstration outside the French embassy to protest the conduct of the Chadian presidential elections. Many believe that she was targeted because she represents the victims of Habré's accomplices. The police squad responsible for the attack was commanded by Mahamat
Wakaye, the Deputy Director of National Security under Habré's regime and one of the former agents who was named in a complaint filed by Maître Moudeïna on behalf of Habré's victims. Wakaye is the current Director of the Judicial Police in Chad.

The government did not carry out an investigation into the attack, which also resulted in a number of other injuries. When Maître Moudeïna returned over a year later from France, where she had been hospitalized from her injuries, she filed a complaint against Wakaye. When Wakaye was called in to see the investigating judge, he reportedly tore his convocation up in the judge's face, before he was ordered by the Minister of Justice to appear and give testimony. Only pressure from Chadian and international rights groups forced the case to trial.

Evidence presented at the trial, attended by
Human Rights Watch,
suggested that Maître Moudeïna was specifically identified by police officers under
Wakaye's command before the grenade was thrown, and that after she was injured, the car taking her to the hospital was fired on. Nevertheless, Mahamat
Wakaye was acquitted on November 11, 2003 of all charges brought against him.

The simple presence of one of Habré's ex‐thugs in a key post such as Director of the Judicial Police, of course, jeopardized hopes for justice and slowed down the end to the intimidation of human rights defenders. In 2005, under intense international pressure, the goverment finally removed Wakaye from his post.

The harassment of Habré's victims intensified with the Belgian judge's visit to Chad in February and March of 2002. The AVCRP offices were broken into, as were the offices of Maître Moudeïna.
Souleymane Guengueng, Vice‐President of the AVCRP and one of the principal plaintiffs in the case against Habré, was suspended for one month without pay from his job at the intergovernmental Lake Chad Basin Commission. When he refused to quit his
AVCRP activities, Mr. Guengueng was dismissed from his position in November 2002. His car was followed by an unregistered vehicle from Cameroon full of uniformed soldiers. An aggressive chase ensued. Two of the victims who went to Belgium to
bring charges against Habré were threatened multiple times after they returned to Chad.

Upon returning from Dakar, Habré's victims announced their intention to file criminal charges in Chadian courts against their direct torturers and those DDS leaders still in the country. According to Ismael Hachim, President of the
AVCRP, “We never accepted – and will never accept – the idea that our torturers are escaping justice. After the arrest of Hissène Habré in Senegal, we realized that we can demand that justice be done here, in our own country. Now, it's time for Chad's judicial system to do its duty.”