Summary report – The prosecution rejects all the grounds of appeal of the Hissein Habré defence Reviewed by Momizat on . Dakar, Senegal, 11 January 2017 The Hissein Habré case is nearing its conclusion. The appeal proceedings continued on Wednesday, 11 January before the Extraordi Dakar, Senegal, 11 January 2017 The Hissein Habré case is nearing its conclusion. The appeal proceedings continued on Wednesday, 11 January before the Extraordi Rating: 0

Summary report – The prosecution rejects all the grounds of appeal of the Hissein Habré defence

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mbDakar, Senegal, 11 January 2017

The Hissein Habré case is nearing its conclusion. The appeal proceedings continued on Wednesday, 11 January before the Extraordinary African Chambers (EAC) with the prosecution’s final submissions. For four hours, the prosecution refuted one by one each of the arguments of the defence concerning annulment of the Trial Chamber’s decision to sentence Chad’s former president to life imprisonment for war crimes, crimes against humanity and torture.

Prosecutor General Mbacké Fall wasn’t about to leave Defence Counsel Mounir Balla’s harsh words unanswered. The latter accused the Extraordinary African Chambers (EAC) of having presided over a “political trial”. In reply, the prosecutor general ‒ who launched the case against Hissein Habré in July 2013 ‒ said, “This case is the result of a long struggle by victims of atrocities. And as a matter of fact, this court came into existence thanks to the political leadership of Senegal and the African Union.” He added, “In a broader sense, this case must not be viewed in isolation, but rather as an opportunity to help Africa handle cases of Africans who have committed international crimes.”

Funds were set aside for the Defence to travel to Chad

As to the defence’s claims that the Trial Chamber infringed its rights, the Prosecutor General said: “Those are unsubstantiated accusations against the African Chambers.” He added, “The rights of the defence were upheld throughout the proceedings.” He recalled that Hissein Habré participated (while remaining silent) in the judicial investigations whenever summoned with his then lawyers; moreover, his lawyers received notification of all the judicial acts. In fact, the EAC set aside funds to enable his lawyers to participate in the international rogatory commissions means of on-site visits to Chad. But, the prosecutor concluded, there is nothing anyone can if a person decides to waive their rights. “He had the opportunity to make his case, but failed to do so.”

With regard to the procedural defects, errors of law and errors of fact highlighted by the defence, Prosecutor General Mbacke Fall stated that “The appealing party failed to substantiate its claims”. He addressed the claim that the Trial Chamber was improperly composed, because one of the judges lacked the required court experience at the time of his appointment. He pointed out that the Statute sets forth several requirements, adding that failure to fulfil one of those requirements does not take away from the fact that the Trial Chamber was properly composed and that, moreover, its composition was not challenged during the trial process. Concluding, he said, “That does not constitute a ground for overturning the Trial Chamber judgement.”

It was legally impermissible to try Habré’s co-accused

As to whether failure to try Hissein Habré’s co-accused constitutes grounds for invalidating the decision, Prosecutor General Mbacke Fall said: “Since the international arrest warrants transmitted to Chad were not served on the individuals concerned by the Chadian judicial authorities, the investigative judges were right to consider that those individuals could not be sent to trial. That was legally impermissible.” As to the claim that the judgement was not released until five months after it was issued, the Prosecutor General said, “Let’s not forget that the defence had five months to prepare its appeal case.” As to the claim that the witnesses who testified before the Trial Chamber were not positively identified, he said, “Courts around the world are only required to ask the witness to state his or her identity. If there is any doubt, the defence is allowed to raise an objection.”

Prosecution Counsel Youssoupha Diallo recalled that according to the EAC Statute, an appeal only concerns an error of fact which has occasioned a miscarriage of justice. It is for the appealing party to demonstrate so. “He gave the example of witnesses participating in the proceedings before testifying in court, contrary to the practice in Senegal and in international tribunals. The defence considers on appeal that the testimony of those witnesses was “contaminated”. In response to that, Prosecution Counsel Diallo described the claim as “unfortunate”. He emphasised that the defence must demonstrate that a miscarriage of justice has actually occurred, and “not simply rely on allegations”.

As to whether Hissein Habré bears sole responsibility notably for the crimes committed in the South, even though the head of the army at the time was the current president of Chad, Idriss Déby, Prosecution Counsel Diallo said: “In that particular case, Mr Déby’s alleged responsibility does not discharge Mr Habré of responsibility for a joint criminal enterprise.“ On this particular point, Prosecution Counsel Moustapha Kâ later added that he “[did] not understand the defence’s position”. “All the documentary evidence demonstrates that Mr Habré incurs responsibility, in that he changed the Constitution immediately after coming into office so as to ensure that all the powers were in his hands. He was the supreme head of the army; he was the one who made appointments of civilian and military staff (…) and above all, the army had had no power as such. It was superseded by the Documentation and Security Directorate (DDS).

The most well documented case in the history of criminal justice”

As to the claim that the DDS fell under the Interior Ministry according to Article 2 of the decree on the establishment of the infamous DDS, Mustapha Kâ emphasised, “The claim that Article 1 places the intelligence agency directly under the presidency reflects confusion (from the defence) between subordination and tutorship. I challenge the defence to show even a single example in all of the jurisprudence where command responsibility is established based on supervisory power. Moreover, the defence has not demonstrated how the alleged error of law has invalidated the decision”. He further added that, “This is the most well documented case in the history of criminal justice. The reason why Hissein Habré chose to remain silent is because he feels guilty. The case against him is so overwhelming that he is struggling for a defence.”

Prosecution Counsel Anta Ndiaye Diop addressed the question of direct rape, of which Hissein Habré was convicted. Citing from court transcripts, she said that there is no such thing as “instigating” a victim to speak, contrary to the defence’s claim on appeal. As far as she is concerned, the president of the Appeals Chamber simply used the powers vested upon him for purposes of ascertaining the truth. He has intervened because the witness was speaking in a roundabout manner. She mentioned the work of Olivier Bercault of Human Rights Watch in his book La Plaine des Morts, the testimony of Dr Hèléne Jaffé, and other victims who gave testimony regarding rape. She stated that under international criminal law, a court of law can enter a conviction in reliance on the testimony of a single witness, given that corroboration is not a prerequisite for entering a conviction.

In the silence of his prison, Hissein Habré must regret what he did”

In his final submissions, the Prosecutor General Mbacké Fal, speaking in a magnanimous voice, said that he was certain that “In the silence of his prison, Hissein Habré must regret what he did.” According to him, the reason why Hissein Habré did not oppose the appeal lodged by his court-appointed lawyers – whom the accused does not recognise officially – could be that he was hoping for a lighter sentence. He is getting on in age. “Mr President, I’ll leave that to your appreciation…“ As concerns civil damages, the Prosecutor General urged the Appeals Chamber to recognise all those persons who joined the procedure as civil parties.

The proceedings are due to resume on Thursday, at 9 a.m., with the final submissions of the civil parties and the defence.

The Consortium

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