A Conversation with Reed Brody on the Pursuit and Trial of Hissène Habré
Cover of Reed Brody’s book on the Habré trial, which depicts Habré at the Extraordinary African Chambers
By: Margaret Jewett, Staff Editor
In 2016, the Extraordinary African Chambers, a hybrid court sitting in Senegal, found Hissène Habré, the former president of Chad, guilty of crimes against humanity for atrocities committed under his regime. The specific offenses underlying his conviction were torture, the crimes against humanity of rape, forced slavery, murder, massive and systematic practice of summary executions, kidnapping of persons followed by their enforced disappearance, torture and inhumane treatment, and the war crimes of murder, torture, inhumane treatment and unlawful confinement. An appeals chamber affirmed his conviction for torture, crimes against humanity, and war crimes, but acquitted him of one charge of personal rape. Habré received a life sentence for these crimes. He died on August 24, 2021 in a Dakar hospital while on medical leave from prison.
Reed Brody’s book To Catch a Dictator: The Pursuit and Trial of Hissène Habré details the 25-year struggle by victims and human rights practitioners to bring Habré to justice. Reed Brody is a human rights lawyer and graduate of Columbia Law School. He worked with Hissène Habré’s victims for 18 years to bring the dictator to justice. He has also helped pursue cases against Augusto Pinochet of Chile, Jean-Claude “Baby Doc” Duvalier of Haiti, and Yahya Jammeh of Gambia.
This interview has been edited for clarity and length.
It took years, from Habré’s initial indictment in 2000 to his trial in 2016, to bring Hissène Habré to justice. What do you think was the biggest galvanizing factor in finally bringing him to trial in the Extraordinary African Chambers?
It was the victims' commitment and tenacity and perseverance. Having the victims as the protagonists in the justice effort meant not only that it was transformative but also that it captured people’s imagination in a way that doesn't happen when it's just a prosecutor or a lawyer. The victims’ saga, the names of Souleymane Guengueng, of Jacqueline Moudeina, of Clément Abaïfouta, were well known to the engaged public in Africa. Having victims meet with policymakers was very different because they could make emotional appeals. As I describe in the book, it was really Souleymane Guengueng’s persuasiveness that kept the case alive in Belgium after the Belgian universal jurisdiction law was repealed.
What was the biggest challenge that victims faced in bringing him to justice?
Creating the political will. The status quo is always easier. We were told for 15 years that other African despots are not going to allow Hissène Habré to be prosecuted. Every time I went to Chad, people would ask me, do you really think France and the United States are going to let Hissène Habré be prosecuted after they supported him? Marshaling political support and mobilizing the political will was the constant battle that we had.
Did Western support, by France and the United States, of Habré during his regime complicate your efforts?
To some degree, France did. The United States is much more nimble in reneging its past and apologizing, in seeking to bring to justice people it supported—in Argentina, in Guatemala, in many countries. France is much more difficult. France doesn't like you to stir up the past. It's much more nervous about its past involvement coming forward. But ultimately, it was not the obstacle that people imagined that it might be.
Chad established a truth and reconciliation commission in 1991, following Habré’s fleeing Chad. Did the information-gathering function of this commission lay the groundwork for the trial of Habré 25 years later?
Absolutely. The first importance of the truth commission is that it established a narrative. When everybody began to take a first look at the case, myself included, it was a legitimizing factor. It made it clear that there was a massive scale of crimes. Ultimately, we did our work all over again, the Belgians did their work all over again, but it was certainly the foundation that we all began with.
What role did the documents you discovered in 2001 at the former DDS headquarters play in the later prosecution of Habré?
The documents were absolutely fundamental. Prosecutors say that documents are the king and queen of evidence. It really corroborated what the victims were telling us. It made it much easier to convince people that these things had happened. Documents are the ultimate insider witness—they don't lie, they don't lose their memories. Each time we would talk to a witness, and each time a witness took the stand at the trial 15 years later, we were able to say—here’s the document that shows when he was arrested, when he was transferred, when he was taken. We had lists of people who died in detention every day.
They were the source of leads for us. We were able to find the Senegalese victims through the documents. We were able to unravel the question of women who were sent as sexual slaves, we were able to really understand the two major episodes of ethnic terror by looking at lists of Hadjaraï and Zaghawa prisoners. There were documents with Hissène Habré’s handwriting on them. We would have been able to prove the case anyway, but it certainly tied everything up very neatly.
One groundbreaking aspect of the Habré trial was the focus on sexual violence committed under Habré’s regime. But acts of sexual violence were not initially included in the charges. What role did victims of sexual violence play in having these charges added?
The women who came forward at trial are almost all people whom I have known for decades, and who did not talk about that part of their experience, neither to me nor to the women on our team who interviewed them. It was really only when they saw Habré actually going to trial, that women came forward and started talking about the sexual violence.
It was really extraordinarily courageous of them, not only to talk about what happened, but to get on an airplane, to go to a country they’d never been to, to go in front of three cameras and the dictator himself just a few yards away, and tell their stories. They would not have done that, I believe, had they not felt that they were part of the team that was bringing the case. With one or two exceptions, they were all members of the victims association, they were people we knew. They knew Jacqueline Moudeina, they knew Clément Abaïfouta, they knew me. I feel like they would not have testified at the trial had they not felt engaged in the process and that they were full participants in the process. With the exception of the actual rape by Habré of Khadidja Hassan Zidane, we were able to include everything in the charges.
Notably, the conviction of rape by Habré himself was not upheld on appeal. What lessons can be drawn from this setback, despite the trial’s general success with treating crimes of sexual violence?
You’ve got to do your best to get it in on time. After the Habré trial, I felt we had missed something important by not doing this in a timely fashion. That is the same thing that happened in the famous Akayesu case in Rwanda. In the book, I describe how Patricia Sellers said to me, “It is always there, you just have to look for it.”
Now, in my work on Gambia, that was the first thing we did. We were able to establish that the former president of Gambia, Yahya Jammeh, had a whole state-sponsored system of bringing women to him who he abused. We had a former pageant queen Fatou Jallow, who came out and described being raped by Jammeh. So the Habré trial was a real lesson for me.
What advice would you give to other human rights practitioners who want to make sure that sexual and gender-based violence is not missed?
Look for it. In many countries, it’s going to be difficult for women to tell their story without some reason to tell the story. There may not be a good reason, in the context of their society, from their point of view, if they don't think that something is going to happen. And you rarely can promise them that something is going to happen. You should have tangible things that you can offer, whether it is psycho-social help or some programs for them. I think you have to be aware that in the constellation of their concerns, they have to feel like telling their story is going to improve their lives, not destroy their lives.
What other lessons can be drawn from the Habré trial for incorporating a victim-centered approach to human rights trials?
The trial looked totally different because of the victims’ hegemony over the narrative and the process. In the early days of the ICC, we saw a lot of cases where the prosecutor would go into a situation of massive crimes, and pick a case. For example, accusing a rebel of enrolling child soldiers—a very bad thing—but one that didn't match the gravity of the situation really.
The victims in the Habré case were always very clear, with the exception of sexual violence, which didn’t come until later, that they wanted to make sure that every ethnic group and every sector that was victimized was part of the process and part of the trial.
I describe the case as my own kind of personal odyssey. You come in as the western lawyer, and say “ok guys, this is how we are gonna do it.” Then, probably because it took so long to bring Habré to justice, you develop a better relationship with victims and shift into a listening mode. You listen to what the victims want. You may know the legal stuff and the diplomatic stuff and the media stuff, but you can't use that to maintain a hierarchical relationship with the people you are working with. You must find a way to make it a true partnership.
Were there any procedural or institutional aspects of the Habré trial that built victim-involvement into the process?
Certainly the fact that we were operating in the French legal system. Ultimately, Jacqueline and the victims were parties at the trial, they filed the case in Senegal, they filed the case in Belgium. Having the civil party mechanism allowed victims to file complaints themselves—they didn't have to rely on a prosecutor. Jacqueline [Moudeina] filed the case three times.
Do you think the largely successful prosecution of Habré signifies that ad-hoc, regional chambers like the Extraordinary African Chambers could be more successful options for international human rights trials in the future?
Absolutely. We were expecting the case to go before the regular courts in Senegal - that was always the plan. What I learned through the Habré trial, and what I’m trying to apply in Gambia and elsewhere, is that through the artifice of hybridization, you can purpose-build a court. In the Habré case, for instance, they didn't have command responsibility in Senegal, so we included command responsibility in the EAC’s statute. Televised trials were unheard of in Senegal, but we put it in the statute that the trial would be televised. We had witnesses who would have otherwise been afraid to come to Senegal to testify because they were insiders. We put protections for them in the statute.
There’s also the budget. The Habré court was given a budget of $10 million, compared to $2 billion at the ICC or hundreds of millions at other courts. We had to build a court for $10 million.
I believe as long as you have subject matter and personal jurisdiction and are offering a fair trial and equality of arms, you can use the artifice of hybridization to really develop a court that fits the situation.
What about the idea of justice for African victims coming from Africa? One of the criticisms of institutions like the ICC is that they can be neocolonialist institutions. Was the EAC an appropriate response to that criticism?
It wasn’t what we intended, but it certainly worked out that way. Having an African court, which was acting on behalf of Africa, prosecuting African crimes, in Africa - it was perfect. As I describe in the book, the Chadians did not care. They just wanted him prosecuted. They had a lot more confidence, actually, in the Belgian legal system than they had in the Senegalese legal system.
For me the problem of the ICC is not a problem of colonialism. It’s a problem of distance, of global politics. In 20 years, and at the cost of $2 billion, the ICC has never sustained the conviction of a state official at any level anywhere in the world. Because the ICC, sitting in the Hague, is no match for a country that controls its territory, its witnesses, the crime scene, and the defendants.
But there is so much justice going on in the world today. Last week in France, Kunti Kamara was convicted for atrocities in Liberia. Look at the case in Guinea against Moussa Dadis Camara for the 2008 stadium massacre. Look at Argentina, Peru, Guatemala. There’s a lot of justice happening in the world, and there will be more and more. The ICC is a really important part of the global justice ecosystem, but it’s not producing convictions.
What is the biggest lesson that can be drawn from the Habré trial for people working to end impunity for human rights violators?
That it can be done. That you have to document abuses while they are happening, or as soon thereafter as possible, you have to organize, and you have to create the political conditions, and it can be done.
Margaret Jewett is a second-year at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from the University of Virginia in 2019. Her capstone thesis examined the trial of Hissène Habré, focusing on its treatment of crimes of sexual violence.