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On May 30, Judge Gberdao Gustave Kam, president of the Extraordinary African Chambers in the Appeals Court of Dakar, pronounced Hissène Habré, the former Chadian dictator, guilty of war crimes and crimes against humanity. During his eight-year rule, which ended in 1990 after he was deposed and fled to Senegal, he oversaw the torture, rape, and murder of some 40,000 people.
I was part of the group that had petitioned the Senegalese court—which the African Union set up in February 2013 to try Habré—to include sexual violence on the list of charges. As the verdict was read aloud, a dozen Chadian women sitting in the row in front of me stood up and broke into song. Many of them had been forced into sexual slavery or raped in detention by Habré’s security forces. They had suffered silently for decades, afraid or unwilling to speak out until the case was brought to trial.
The trial against Habré is significant on many levels. It will go down in history as the first time an African court prosecuted a former head of state for crimes against humanity. It finally put into practice the principle of universal jurisdiction—that anyone, anywhere, can be held accountable for such crimes, no matter where that person resides. It was also one of the first instances in which a national court produced such a clear and strong indictment of sexual violence as a crime against humanity. It is hard to understate the significance: though rape and sexual violence have featured in wars for centuries, it was not until the ad hoc criminal tribunals for Rwanda and the former Yugoslavia that sexual crimes were clearly prosecuted as war crimes, crimes against humanity, and acts of genocide. After over a decadelong trial, the International Criminal Court has also finally secured its first conviction for rape as a war crime and crime against humanity in the case of Congolese rebel leader Jean-Pierre Bemba this past March. Now, the Extraordinary African Chambers—as a small and newly established domestic court with little funding—has followed suit with its strong condemnation of rape and sexual slavery as violations of international criminal law.
Even in the Habré case, sexual crimes were not initially emphasized. During pretrial fact-finding, the focus was on securing evidence of torture, mass murders, forced disappearances, and unlawful movement of Chadian citizens, which were deemed to be more significant crimes. But as the investigation progressed, too many nongovernmental organization reports and witness statements were unearthed to ignore. It was clear that there had been widespread sexual violence and gender-based crimes. Still, the victims participating in the case remained relatively silent about the sexual crimes they had suffered—and without the individual accounts of victims and other eyewitnesses, the documentary evidence of sexual violence was easy to overlook or underestimate. Prosecuting the other crimes was a “neater” process, since the historical jurisprudence was clearer and the crimes themselves less taboo to take on in court. And without reassurance that the judges and public would respect their suffering, what incentive did victims have to speak of violations they had endured decades earlier?
Jacqueline Moudeina, one of the impressive Chadian attorneys representing the victims, had worked with her clients for years, but she found that no one was willing to share individual experiences of rape owing to the heavy stigma and taboos around sex in Chadian communities. She spent years visiting them in Chad, encouraging them to consider testifying about the fullness of their suffering. It was not until the eve of trial in September 2015 that one of the women finally stepped forward. Moudeina recalled the woman telling her, “When women are imprisoned by men, you know what happens. I am ready to talk about that now.”
Others began coming forward, too. With their testimony, the trial record grew heavy with accounts of sexual violence. By the time hearings concluded in December 2015, the judges had learned of women who had been forcibly moved to military camps in the desert to service Chadian soldiers, who used them as domestic servants and sex slaves. Political opponents were also sexually abused in detention. One woman recounted how soldiers tortured her cellmate by administering electric shocks to her breasts and genitals, eventually leaving her unable to walk. Another detainee was tortured while pregnant. She eventually miscarried.
It was not only women who suffered. A French doctor who had conducted medical evaluations of Chadian torture victims explained that between 1991 and 1996, she had treated hundreds of men who had been kept in Habré’s prisons. Many bore injuries indicating sexual violence. Children, too, were victims. One witness testified that soldiers raped and killed a girl of about seven years of age. Another witness implicated the former president himself. In unexpected testimony, Khadidja Hassan Zidane spoke of how Hissène Habré himself had raped her four times.
Although the initial charges against Habré had not accounted for crimes of sexual and gender-based violence, it was clear after the extensive oral testimony that those charges needed to be revised. Under the civil law system, judges are permitted to “requalify” charges based on all the available evidence. So several of us filed an amicus brief to Judge Kam and his colleagues highlighting ways that both the statute of the Extraordinary African Chambers and customary international law could support charges of rape, sexual slavery, torture, and other forms of sexual violence as war crimes and crimes against humanity. The brief was signed by leading world experts on sexual violence as an international crime, including South African Justice Richard Goldstone, who served as the first chief prosecutor of the International Criminal Tribunals for the former Yugoslavia and for Rwanda; George Kegoro, of the Kenya Human Rights Commission; and Felicia Coleman, former chief prosecutor for sexual and gender-based violence crimes in Liberia.
In early December 2015, we submitted the brief by both e-mail and regular mail to the courthouse in Dakar. Acknowledging receipt, Judge Kam thanked us for the brief, commenting that it would be an extremely helpful resource in his and the other judges’ deliberation. However, since amicus briefing is not a common practice in Senegalese courts, Kam informed us that they would not admit the brief into the formal record. Later, The Guardian wrote an article about the case, linking to the amicus brief on our website and effectively putting it into the public domain. This enabled the lawyers representing the victims in the case to access it and make use of our arguments in their own closing arguments, where they pushed to revise the charges to include sexual violence.
Finally, the three-judge panel did revise the charges to include sexual and gender-based violence. The guilty verdict Kam read out on Monday reflected the trial court’s heightened consideration of the sexual violence in evidence. He referred repeatedly to Khadidja Hassan’s story about Habré to illustrate the culture of complete impunity for sexual violence that Habré had created. And with Kam’s pronouncement, this small court in Senegal moved international criminal law forward on the issue of sexual violence, treating it as a crime against humanity and an act of torture.
The decision, so long as it is not overturned by appeal, will strengthen customary international law and its treatment of crimes of sexual violence, building upon landmark judgments of the tribunals for Rwanda and the former Yugoslavia. Each of these new cases helps establish norms about the kinds of sexual violence that can constitute war crimes, crimes against humanity, or acts of genocide. Further, the decision has set a new standard for domestic courts in Africa: it showed that national judiciaries can, with proper legislation and resources, prosecute these international crimes, including sexual atrocities once thought of as either too unimportant or taboo to raise in a trial.
The verdict was a tremendous and unexpected triumph for the Chadian women sitting in court, for thousands of their fellow Chadians who suffered atrocities under the Habré regime, and for the Chadian victims’ rights groups and international groups such as Human Rights Watch that worked for decades to bring this case to trial.
The verdict was also a reminder that widespread, systematic, or otherwise strategic acts of sexual violence, which are often committed during armed conflict, must be considered at the beginning of any inquiry into war crimes or crimes against humanity. Awareness of possible sexual violence from the outset makes it more likely that investigators will ask the right questions and provide the right psychological support as early on as possible. This could then encourage more survivors of sexual violence to come forward, not only to testify but to receive due reparations in the case of a conviction.
Habré’s case shows that the road to justice is long. It may take 30 years or more before some survivors of sexual violence are willing to speak at all, much less testify against the powerful—but advocates, investigators, lawyers, and judges must help carve out a safe space for them to do so from the very beginning.