Chad accuses Hissène Habré of having looted the Chadian treasury upon fleeing the country, and with reason. But it is obvious that a legal entity, such as a company or a state, cannot be the victim of most serious violations of international law, such as genocide, crimes against humanity, war crimes and torture.
On 25 February, the Republic of Chad announced that it had lodged a complaint against Hissène Habré before the Extraordinary African Chambers. This initiative had no legal basis.
The Chambers were created to pursue and judge those most responsible for international crimes committed on Chadian territory during the regime of Hissène Habré, particularly crimes against humanity, war crimes and torture.
According to the Statute of the Extraordinary African Chambers, only "victims" of these crimes may initiate a civil suit. It is clear that a legal entity, such as a company or a state, cannot be a victim of most serious violations of international law. How could the agents of Hissène Habré's political police have inflicted on the State the "arbatachar," the sinister torture method infamous in Chad which consists in tying both the wrists and ankles together behind the back, thereby causing the chest to expand and arch.
Thus, as provided for in the Statute, "torture is intentionally inflicted on a person," genocide is an act committed with the intent to destroy in whole or in part, a national, ethnical, racial or religious group" and a crime against humanity is "a widespread or systematic attack directed against any civilian population." Without a doubt, the Chambers are competent to judge crimes committed against persons.
Likewise, war crimes such as voluntary homicide, torture, deportation, violation of prisoners' rights, etc. can in no case make a state a "victim." However, according to its lawyer, Chad "has decided to support the suits of other plaintiffs, but only as regards the financial chapter, because the financial loss is enormous." The Chadian justice minister added: "In war crime there is also the notion of looting. When he fled, Habré did not forget to empty the state coffers."
Chad has reason to accuse Hissène Habré of having despoiled it by looting the national treasury when he fled. The National Commission of Inquiry into the crimes and misappropriations of Hissène Habré claims, with cheques to prove it, that on the day he fled N'Djamena Hissène Habré embezzled 3.5 billion CFA francs. The distinguished jurist Mahamat Hassan Abakar, president of said Commission, even declared that "the amount taken from the public treasury by the former president at that precise moment [when he fled] represents only a portion of the embezzled money."
These misappropriations could constitute serious financial crimes, but the latter are not within the remit of the Extraordinary African Chambers. "Looting" may indeed constitute a war crime, and a state can be a victim of it, but only if the perpetrator belongs to the "enemy" in the context of an armed conflict. Hissène Habré could not be the armed enemy of his own country: he was the Head of State. This is why no State has ever been admitted as plaintiff or victim in an international or mixed jurisdiction.
The Chadian government's attempt to recover the misappropriated funds is legitimate. Hissène Habré left behind a ravaged country. But during 23 years Chad had - and still has - the possibility of submitting a case for misappropriation of public funds or corruption before the Senegalese common law courts. Shortly after the fall of Habré, Chad was able to recover the plane in which he fled. Why then did it not attempt to recover the misappropriated funds before?
Chad must not be a party to the court proceedings. If this country wishes to continue to cooperate with African law it must, among other things, hand over to a special jurisdiction the three wanted individuals still living in Chad: Mahamat Djibrine "El Djonto", Saleh Younouss and Zakaria Berdei.
By all accounts the Extraordinary African Chambers have been doing a great job for over a year. Thanks to them, Senegal has become the epicenter of international justice in Africa. If Chad were a party to the proceedings before the Chambers - a first in the history of international criminal law ¬- it would damage the good reputation the Chambers enjoy internationally and where the evolution of international criminal law is concerned. Judge Cançado Trindade of the International Court of Justice wrote in the decision: Belgium vs. Senegal of 20 July 2012: "The emancipation of the individual with regard to his State constitutes [... ] the principle heritage of the consolidation of international law on human rights [... ]. Contemporary international criminal law, by focusing on individuals (torturers and their victims) takes this emancipation into account."
The Extraordinary African Chambers were created to bring justice to the victims and promote reconciliation in Chad. This is the mission of the Chambers: to prosecute human beings for acts committed against other human beings. It is matter of individuals, not an affair of state.
This article was translated from French for Pambazuka News by Julia Monod.