So we are now on day two of the Hissène Habré trial at the specially constituted Chambres Africaines Extraordinaires (CAE) in Dakar, Senegal. This short post discusses Habré’s behaviour on day one, and the news that Habré may be brought by force to court today.
As many will have seen, day one of the Habré trial was marked by Habré’s disruptive behavior that lead to his removal from court. You can see the extraordinary footage of his removal here. Following this I understand Habré was not let back in, but that Presiding Judge Kam has stated that he would be brought in by force if necessary for day two of proceedings. News is now beginning to trickle through that Habré is indeed in court for the second day of his trial with several sources reporting his appearance was indeed by force.
The question is therefore why the need to secure Habré’s attendance with force if necessary?
Article 21(4)(d) of the CAE Statute makes it clear that Habré is entitled to be in court during his trial in line with all recognized domestic and international human rights law on fair trials, but he is not required to be in court. Therefore there seems no legal requirement for Habré’s attendance and the trial can continue.
Of course this situation may give rise to discussion of a trial in absentia. Such trials often make us ( lawyers, jurists and legal academics in particular) uncomfortable; the idea that you can be tried without your knowledge, or without the opportunity to put your side of the story forward flies in the face of almost all recognized fair trial rights, and its for these reasons trials in absentia are often best avoided. But the situation here is different. Habré has been informed of the charges against him and has been given every opportunity to attend. This is not a case where a trial is taking place unbeknown to the accused, far from it. It is very much Habré’s choice to disrupt proceedings rendering his attendance impossible. Therefore, Habré is effectively forfeiting his right to be in court and fair trial rights cannot reasonably said to be in jeopardy.
So, given that the CAE Statute does not require Habré’s attendance, and fair trial standards are being upheld as long as Habré is continued to be given the opportunity to attend (as long as he does not disrupt) why are we reading of even the possibility of force being used to bring Habré to court?
Two possible reasons come to mind. First, the court is attempting to demonstrate from the very beginning of the case that it will be the one in charge of administration of the trial and that it will not be beholden to Habré’s wishes and commands. If this is the case, I would argue that the same message is just as effectively given simply by proceeding with the trial in Habré’s absence. By proceeding the court sends out just as strong a message that it will not bend to Habré’s will without the need to use force.
The second possible reason is for the sake of the victims. As I wrote yesterday on Justice in Conflict (cross posted here at The ACtHPR Monitor today) the victims coalition deserve huge praise for bringing this matter to court. The hard work and dedication of the victim coalition should be lauded and can serve as an example of the dedication and tenacity required for victims to achieve the seemingly impossible task of bringing a former leader to trial. But this achievement of obtaining a trial must be separated from the trial itself. Beyond the possible satisfaction of seeing Habré forcibly brought to trial everyday what more will be gained? Carrying on with the case with or without Habré would not in any way diminish the work of the victims. I would argue that Habré’s behavior yesterday in court pays the victims the ultimate compliment- it is the victims who have endured.
UPDATE: It appears Senegalese criminal law allows the President of the Court to use force to bring an accused to court. So the use of force would not be an unfamiliar power in Senegal. See Article 276 of 3 November 2014 the law no 2014-28 available here. Many thanks to Marion Chahuneau for the tip.
The views expressed herein are those of the author alone and do not necessarily reflect the views of the ICTY or the United Nations in general.