On Friday, after more than two decades, proceedings against former Chadian dictator Hissene Habre begin in Senegal, with the opening of investigations by the Extraordinary African Chambers in that country.
This is indeed an extraordinary event for at least two reasons. First, it marks the first time in which a national court anywhere has tried the former head of state of another country for serious international crimes. Second, it represents (perhaps) an alternative to the increasingly static debate over international justice in Africa, represented most starkly by the resistance not only of Sudan, but of many African States Parties to the Statute of the International Criminal Court, to the arrest warrant for Sudanese President Omar al-Bashir. What we might be seeing is a shift from the narrative of Habré as an African Pinochet, and international justice and the ICC as neocolonial, to the fruition of one possible model for “African solutions to African problems”.
This process has been a long time in the making, and has a long way to travel yet. Habre fled Chad for Senegal in 1990, following a brutal reign in which Human Rights Watch claims that 1,200 were killed and 12,000 tortured, and a domestic Chadian commission of inquiry claims that as many as 40,000 were killed. In exile in Senegal, Habre weathered many attempts to initiate him both at home and abroad, beginning with efforts in Senegal in 2000, which were strongly resisted by then-President Abdoulaye Wade. In 2005, with complaints filed in Belgium under its universal jurisdiction legislation, Wade rejected Belgian requests in 2006 for Habre’s extradition, and in the midst of heightened rhetoric at the African Union (AU) about the perceived imposition of international justice upon African States and particularly targeting African leaders, the Belgian request became a political and legal football. The African Union recommended that Senegal pursue an “African solution” and prosecute Habre on behalf of Africa.
A range of proposals ensued, including one from the Economic Community of West African States that a hybrid tribunal (with both national and international judges and staff) along the lines of the Special Court for Sierra Leone be created in Senegal. Negotiations drew pledges of financial support from European countries, but ultimately Senegal withdrew from negotiations over the tribunal, ostensibly over cost, but with then-President Wade’s political resistance perhaps the underlying motive. The most vocal opponents to prosecutions of current and former heads of state have, after all, been current heads of state, and this is a phenomenon not limited to Africa. To date, only three former heads of state have faced trial for serious international crimes: Slobodan Milosevic of the former Yugoslavia, Charles Taylor of Liberia, and Efrain Rios Montt of Guatemala. Habre would be the first tried in Africa, as well as the first tried by the courts of a neighbouring state. So, how did this come about? The answer is probably political change in Senegal and international legal pressure.
Belgium filed a case in 2009 before the International Court of Justice (ICJ) in the Hague, in light of Senegal’s repeated rejection of its requests for extradition, asking the ICJ to determine whether Senegal’s failure to try Habre or extradite him violated Senegal’s obligations under the Convention Against Torture. In July of 2012, the ICJ determined that Senegal was in violation, effectively that it must extradite him to Belgium to be tried, or try him itself. At the same time, Senegal elected Macky Sall as President in March 2012, who was far less resistant to accountability than Wade had been. In August, Senegal reached a deal with the AU to create a special tribunal to try the case. In December, the Senegalese Parliament passed legislation authorising the Extraordinary African Chambers to be made up of Senegalese magistrates, working with a president from elsewhere in Africa.
The investigations which have just begun mark the end of one long journey, but only the start of another. Investigations are expected to take approximately 15 months, with trials beginning only in 2014. Any number of obstacles could yet intervene, including difficulties obtaining evidence, political interference, or even the passing of the 70-year old defendant. Nonetheless, if the process succeeds and is credible, regardless of the outcome, it may well represent the beginning of a changed debate in Africa regarding the prosecution of international crimes, and of heads of state.
Chandra Lekha Sriram is Professor of Law at the University of London, School of Oriental and African Studies, and conducts research around the world on international criminal justice and transitional justice. Her most recent book is a co-edited volume, Transitional justice and peacebuilding on the ground: Victims and excombatants (Routledge 2013).