There is more to former Chadian President Hissène Habré’s disruption of the opening of his trial in Dakar than meets the eye. He faces various charges including the politically motivated murders of at least 40,000 people.
His behaviour amounts to more than the ravings of a deluded former dictator. In fact, he and his lawyers are keeping to a script that has been tried and tested by revolutionaries and former rulers facing criminal charges.
On July and 20 and 21, the long-awaited trial of Habré, who ruled Chad with an iron fist from 1982 to 1990, got off to a tumultuous start. He was removed from the courtroom after loudly protesting the authority of the Extraordinary African Chambers in Senegal, a hybrid tribunal jointly set up by the African Union and Senegal. It is supported financially by Chad, the European Union (EU), the US and several European states.
On the first day Habré was dragged out by guards after shouting ‘down with imperialists’, and denoucing the trial as a ‘farce by rotten Senegalese politicians’ and ‘African traitors’. He refused to return and the trial was adjourned to the next day. The next morning he was again brought to the courtroom but his lawyers did not show up. In response the court appointed new lawyers and adjourned the trial until September 7.
Habré and his lawyers clearly coordinated their actions in court and succeeded in delaying the proceedings. This move might only result in a negligible delay in a trial that follows 25 years of campaigning to hold Habré accountable. It nevertheless constitutes a tactical victory for him and highlights the defence strategy of attacking the legality of the proceedings. His lead counsel, a French lawyer, went so far as to complain about the ‘militarisation’ of the trial in an interview.
In fact, Habré and his lawyers have been employing a defence strategy commonly used by accused in political trials throughout history. Former heads of state and revolutionaries facing criminal proceedings have often rejected the authority of courts trying them and accused them of abusing the law.
Tactic used across the centuries
The political defence has a long history. Refusal to recognise the legitimacy of the court used to be a common strategy of deposed monarchs on trial. In the treason trial against Charles I of England in 1649, the King refused to recognise the authority of the tribunal due to his status as sovereign. The lawyer representing King Louis XVI in 1792 also rejected the authority of the National Convention to try the King on the grounds of his immunity under the French constitution.
Members of the German far-left militant Red Army Faction who stood trial in the 1970s refused to participate in the proceedings against them, demanding to be treated as prisoners of war. They claimed to have been waging a revolutionary war against the state.
More recently, the former Serbian leaders Slobodan Milosevic and Radovan Karadzic employed similar arguments denouncing the Yugoslavia-tribunal as Western political instrument that had no jurisdiction over them.
Both revolutionaries and political leaders use the same arguments. They refuse to recognise the court and invoke a higher law. Instead of defending themselves they attack the court’s authority, often addressing audiences beyond the courtroom. This type of defence is also known as defence of rupture, popularised by the notorious French lawyer Jacques Vergès who used the trials of his clients as platforms to attack the foundations of the political system.
Firing the lawyers
At another level, Habré and his lawyers might have pursued a more pragmatic and immediate objective. In June 2007, Charles Taylor, the former Liberian President, refused to attend the opening of the trial against him in The Hague, complaining about the inadequacy of his defence team. In a dramatic scene his lawyer declared he could not represent Taylor any longer and walked out of the courtroom. Afraid of a derailment of the trial the Special Court for Sierra Leone more than doubled the funding for Taylor’s defence and adjourned the trial for seven months.
In Habré’s case the court was less generous. It immediately appointed three new Senegalese lawyers without increasing funding for the defence and granted not even two months adjournment. However, Reed Brody of Human Rights Watch, who has worked tirelessly to bring Habré to justice, pointed out that the financial implications for the court’s budget of about £6 million are significant. He stated that
a delay of 45 days in a trial that was only supposed to last 90 days is going to increase the budget by almost 50%.
Increasing the costs might be part of a defence strategy aimed at derailing the trial. Habré is likely to refuse to cooperate with the new defence lawyers appointed by the court who were ordered to defend Habré even against his will.
This might be problematic as it could be seen to affect his defence negatively. In many jurisdictions this could even be a grounds for appeal. In any case, it could undermine the credibility of the Extraordinary African Chambers and raise questions about respect for the fair trial rights of the accused.
The court should be acutely aware of this and ensure that the trial meets internationally accepted legal standards to ensure that it will serve as a landmark in the fight against impunity in Africa.
Gerhard Anders received funding from Swiss National Science Foundation for a study on international criminal justice (2007-2010).
Authors: The Conversation