The Extraordinary African Chambers: Due Process and Judicial Legitimacy

Abstract

Adhering to due process standards is a major challenge for international criminal tribunals. Factors that threaten the exercise of a fair trial include the atrocity of the crimes involved, obstreperous defendants, a constrained court budget, and political obstacles to obtaining witnesses and evidence. At the same time, courts must balance important goals — such as empowering victims, reestablishing peace in affected areas, and promoting the rule of law — with the right to due process.

This thesis investigates the fairness of Hissène Habré’s trial before the Extraordinary African Chambers (EAC), a case which has been commended by the media as the first instance of universal jurisdiction in Africa, but has also been criticized for breaches of fairness. An evaluation of due process in this case is helpful to better analyze the case’s legitimacy and legacy in light of other international criminal tribunals. Using interviews with key actors, as well as a analysis of court archives and legal memos, I analyze the degree to which Habré’s trial respected key fair trial standards. I reach the conclusion that the defense was considerably disadvantaged, largely due to the court’s budgetary constraints, temporal limits, and structural shortcomings. This constitutes a breach of equality of arms between the defense and the prosecution.

Moreover, this thesis outlines the inherent challenges of reconciling fair trial rights with the interests of victims, and how these issues manifested at the EAC. I demonstrate how balancing mechanisms can be used to reconcile the rights of different actors in international criminal tribunals and why the rights of the accused should remain paramount.

Finally, this thesis undertakes a discussion of how to balance the fight against impunity with a concern for fairness. I establish the importance of elevating the position of the defense so that it is on a level playing field with that of the prosecution, and a set of policy recommendations for international criminal tribunals are put forward to promote adherence to due process standards.