Joint Criminal Enterprise Before the Chambres Extraordinaires Africaines: Hissène Habré’s Direct and Indirect Criminal Liability

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The Chambres Africaines Extraordinaires (CAE), ad hoc chambers operating under the auspices of the Dakar municipal courts, were constructed to try Hissène Habré. Habré led Chad from 1982 until 1990, when he was deposed by his former second in command, Idriss Déby. Déby remains the head of state of Chad today and has long agitated to recognize Habré’s (and only Habré’s) misdeeds and punish him. In targeting Habré, the CAE was designed to appease Chadian calls for justice (from Habré’s victims, on one hand, and the Déby regime, on the other), resolve Senegal’s impasse over the legality of Habré’s culpability and allow the African Union to meet its leadership obligations. To this tall order, the CAE was required to exercise legitimate judicial authority in the contested sphere of international criminal law (ICL), where content is pluralist and political. Thus the CAE, an institution created by compromise between Chad, Senegal, the African Union and interested donor states, came into existence itself compromised, because creating an institution to try an individual is a backward application of the rule of law and challenges central notions of justice.
In the past 30 years, ICL-practicing institutions have developed an extensive, though uneven, jurisprudence regarding complicity (the liability levied against those who do not perpetrate crimes themselves). Habré ran a repressive state that killed and injured tens of thousands of Chadians, and his crimes were understood as those accomplished by the leader of an illiberal state. In its 2016 judgment, however, the CAE found Habré indirectly as well as directly culpable for each of categories of crime charged. This included a controversial finding that Habré, personally, had raped Khadija Hassan Zidane (this finding was overturned on appeal for procedural reasons). This article examines the CAE’s finding of Habré’s culpability for war crimes, crimes against humanity and torture. The article shows that the CAE applied a novel construction of liability under ICL and argues that it did so in order to strengthen its authority and legitimacy. By so doing, the CAE has made a significant addition to the field of ICL. This article explores the CAE’s application of joint criminal enterprise (JCE) to consider how the internationally formulated doctrinal standard is reshaped by CAE practice.
TidsskriftAfrican Journal for International Criminal Justice
Udgave nummer1-2
Sider (fra-til)7-19
StatusUdgivet - 2017
Udgivet eksterntJa

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