Summary report – Civil parties and the defence closing submissions on appeal Reviewed by Momizat on . Dakar, Senegal, 12 January 2017 The Extraordinary African Appeals Chamber started deliberations on Thursday, 12 January. It is due to issue its judgement on 27 Dakar, Senegal, 12 January 2017 The Extraordinary African Appeals Chamber started deliberations on Thursday, 12 January. It is due to issue its judgement on 27 Rating: 0

Summary report – Civil parties and the defence closing submissions on appeal

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C19mhciWgAU5FEB-copieDakar, Senegal, 12 January 2017

The Extraordinary African Appeals Chamber started deliberations on Thursday, 12 January. It is due to issue its judgement on 27 April 2017. The proceedings closed with the rejoinders of the civil parties and the defence, following yesterday’s closing submissions of the prosecution. Coming four years after the inauguration of the Extraordinary African Chambers (EAC), nineteen months of judicial investigations and four months of trial, the appeal proceedings were over in only four days. The appellate decision will not be appealable.

This was the last opportunity for the civil parties and the defence to each make their case before the final verdict is rendered in a case that has been described as “historic”, and has been keenly followed in Chad and Africa, and also by observers of international justice. Alain Werner, a Swiss lawyer, who has been following Habré affair since 2008, was the first to address the judges and try and dispel any doubt that may have been cast in their minds. The civil parties are asking the EAC to reconsider the decision on reparations, but are convinced that the judgement on the merits ought to be left as is.

“We believe that the Trial Chamber had a thorough understanding of the case as to its merits, starts Werner. It was mindful of the fact that [during the relevant period] Hissein Habré had at his disposal a whole array of organs of repression and that he used the DDS as his eyes, his thing… a machine which he used for repression and torture, an eerie spider web that was cast all around Chad for gaining knowledge about everything, and having control over everything. Records from the archives show 1,265 instances of direct communication between the DDS and Hissein Habré concerning over 900 detainees. This case is not a frame-up or an international conspiracy against Hissein Habré, but rather the sad reflection of what actually happened in Chad in the period from 1982 to 1990. In answer to the defence, I must say that it is only logical for the case to be prosecution-oriented. It concerns a president who set out to make his people shed tears of blood. “

“You duty is not to be wise, but rather to apply the law”

Counsel Werner voiced about the possibility of reducing Hissein Habré’s life sentence which was handed down on 30 May 2016, a possibility that was hinted upon by the defence and the prosecution in their closing submissions. He said, “The Defence filed three notices of appeal. They did not point to any error stemming from failure to take account of mitigating circumstances. If that is a ground appeal, it is time barred.” On Wednesday, the Prosecutor General had hinted that he could be open to the idea of imposing a lighter sentence, and deferred to the “wisdom” of the Chamber on the matter. In regard to that, Counsel Werner told the Chamber: “Your duty as appellate judges is certainly not to be wise, but to follow the appellate standards, and apply the law. The prosecutor has suggested that M. Habre feels “regretful” as he languishes in his cell. I doubt that anyone is capable of reading Habré’s mind? As far as I can see, his attitude has not changed. He still is not here.”

Finally, Counsel Werner took issue with granting a pardon, as was hinted upon by Senegal’s Justice Minister, Sidiki Kaba, at a press conference the day after the pronouncement of the Trial Chamber’s verdict. According to Counsel Werner: “That would spell absolute disaster for our victims and also for international justice.” He added that the Appeals Chamber should enunciate in its judgement the provisions of Article 26(3) of the Statute, which states that “the cooperating State is bound to comply with length of the sentence”. Next to address the Chamber was Counsel Assane Dioma Ndiaye of Senegal. He reiterated that while the civil parties are unsatisfied with the Trial Chamber’s decision on reparations, they are “fully satisfied with the conviction and the sentence.” Philippe Houssiné, a Chadian lawyer, said that the Appeals Chamber has the choice between “the prosecution, which fully substantiates its case, and the defence, which deliberately submits time-barred interlocutory motions” expecting the judges to make do with that. I leave that to the appreciation of the Chamber.”  

“Senegal could lose its judicial functions”

Last to address the Chamber were counsel for the defence. Counsel Abdoul Gning recalled how the court-appointed lawyers became involved in defending Hissein Habre, who refused to participate in his trial. Counsel Gning said: “It is true that Mr Habré recused us. But that is because he recuses the court. One must respect his choice. He believes that if there was a widespread and systematic attack, it was directed against him.” Counsel Gning voiced renewed criticism of the report issued by the Chadian Commission of Inquiry in 1992. He asserted that the prosecution used that report in building its case. In his view, the commission was “tainted” in that it was appointed by Chad’s current president, Idriss Déby, the same man who overthrew Habré. He also asserted that the Chadian government “does whatever it pleases, however it pleases” and is unwilling to cooperate with the EAC as to sending former senior DDS officials ‒ the one who perpetrated the crimes ‒ to testify at the trial in Dakar. He said, “The testimony of those individuals should have been heard in order for the case to stand on more solid ground. The defence takes issue with the absence of their testimony.”

The defence also took umbrage at the fact that a former investigative judge of Belgium, Daniel Fransen, who had earlier issued an arrest warrant against Hissein Habré, was admitted as trial witness. “In Senegal, an investigative judge cannot give testimony. There is a slew of case-law instances where decisions have been overturned on that basis. It is our judicial identity which is at stake. It is necessary to draw a clear distinction between matters relating to prosecution and matters relating to investigation. The African Chambers form part our judicial institutions.” For the defence, there is the clash between domestic law and international law. “Senegal could lose its judicial functions. There is a real threat of that happening; that threat is right there before our very eyes!” Counsel Gning considers that in itself amounts to an error invalidating the decision. He pointed to the judicial vacuum on that matter since the EAC is now without a trial chamber. He put that down to the “mishmash” characterising international tribunals. He requested that his client be acquitted.

As to the sentence: “We are neither beggars nor criminals”

Next to address the Chamber was Defence Counsel Mbaye Sene. He said, “The reason why we made no reference to the sentence in our appeal brief is because we believe Mr. Habré should not have been sentenced in the first place.  We are asking that the judgement be set aside, because it is a very bad judgement. It is null and void! “Counsel Mounir Ballal’s response to Prosecutor Mbacke Fall’s suggestion that the accused’s remorsefulness could open the way for a pardon was equally sharp: “Mr. Prosecutor General, we are not here as beggars. All we are asking for justice to be rendered. We are not beggars. And neither are we criminals!”

Counsel Ballal revisited the allegation that a Senegalese judge on the Trial Chamber bench lacked the judgeship experience required under the EAC Statute. “We are stating loud and clear before this Chamber that the Trial Chamber adjudicated the case whereas its bench was not regularly composed. The Senegal operates under the rule of law, and your obligation is to apply the law”, he told the judges. In addition to the submissions he had made on Monday, he challenged the analysis performed by a Canadian handwriting expert, which, according to the judgement, helped to identify Hissein Habré’s handwriting in DDS documents. He also spoke about the reports of mass graves having been opened in Chad by a team of Argentinian forensics experts. “We have heard reports that tens of thousands of dead bodies were found. Yet, fewer than twenty graves have been identified in the entire country. Doesn’t that sound like out of a mountain came a mouse?”

Counsel Ballal recalled that its appeal brief, the defence requested annulment of the Trial Chamber judgement, and “defer[red] to the wisdom of the [Appeals] Chamber” on the matter. That marked the termination of the appeal proceedings. Deliberations are due to take place on 27 April 2017, as announced by The Appeals Chamber president, Judge Wafi Ougadeye.

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