Senegal has agreed to comply with a recent decision of the Court of Justice of the Economic Community of West African States (ECOWAS) by creating an ad hoc special tribunal to try former Chadian dictator Hissène Habré. This move, unforeseen in light of Senegal’s initial response to the decision, follows a meeting between the Senegalese Ministers of State and Justice and officials from the African Union (AU) to discuss the construction and operation of such a tribunal within the constraints of international funding. Habré faces charges of crimes against humanity, war crimes, and torture committed during his reign from 1982, when he seized power in Chad, until his 1990 overthrow and flight to Senegal, where he currently resides.
Senegal has encountered both political and legal obstacles to holding the former dictator accountable, and its posture — ranging from reticence to outright refusal — has until recently suggested mounting frustration. Its current move is thus a positive development for survivors of the Habré regime, including the family members of more than 40,000 individuals who died in prison or were executed at the hands Habré’s feared Documentation and Security Directorate forces and countless others who were systematically tortured in detention.
Beyond what it represents for victims in their quest for justice, Senegal’s decision also seems to reflect increasing respect for the ECOWAS Court on human rights issues and the AU’s insistence that the continent create its own avenues to justice rather than cede Habré’s prosecution to the courts in Belgium, where survivors had filed similar charges.
In its November 2010 judgment, the ECOWAS Court held that Hissène Habré could only receive a fair trial in Senegal before a special ad hoc tribunal specializing in international criminal law, rather than before its national court system. According to the Court, prosecution in the national courts would violate the prohibition of retroactivity under Article 15 of the International Covenant on Civil and Political Rights (ICCPR) — to which Senegal is party — as well as Senegal’s own Constitution. The penal and constitutional amendments necessary to establish universal jurisdiction in Senegal’s national courts were not part of Senegalese domestic law at the time of Habré’s rule. However, because the crimes alleged were regarded as such under international law at the time, Habré may be prosecuted, according to the ECOWAS Court, provided the presiding judicial body is a specialized international ad hoc tribunal.
Soon after the ECOWAS judgment, international donors pledged nearly U.S. $12 million to finance the trial, and the AU signaled its support in a corresponding Resolution. Yet, Senegalese President Abdoulaye Wade continued to resist, saying that he had “had enough” and was “handing the Habre dossier back to the African Union.” Although Belgium remained prepared to prosecute Habré under its universal jurisdiction law if President Wade were to comply with its extradition request, such a move would have meant opportunity lost for Africa to take the lead in prosecuting one of its own.
Senegal’s about-face decision to host an ad hoc tribunal came only after concerted pressure by the AU. It keeps Habré’s prosecution within Africa, rather than removing it to a forum so distant as to disrupt any real connection to survivors and their families. This is in contrast to the Special Court for Sierra Leone (SCSL), which lost some legitimacy when it opted to conduct its highest profile prosecution of Charles Taylor in The Hague rather than its normal location in Freetown. Instead, the tribunal presiding over Habré’s trial will be regional: integrated within the Senegalese judicial system, in collaboration with ECOWAS and an ad hoc commission in Chad, and presided over by African magistrates.
For some, the ECOWAS Court’s judgment might set the worse of two possible precedents. A ruling that permitted Senegal to proceed with a prosecution within its national court system would have affirmed the use of universal jurisdiction in Africa, perhaps facilitating future prosecutions within Africa for crimes of this nature. Such a ruling might have been possible had the ECOWAS Court given greater weight to the second paragraph of Article 15 of the ICCPR, which permits retroactivity when the alleged acts “are criminal according to the general principles of law recognized by the community of nations.” Instead, the Court has set a precedent that at times would require African states to craft an entirely separate mechanism, albeit with international funding, even if only one individual is to stand trial.
The current precedent, however, at least affirms that Habré can be lawfully prosecuted within Africa. The AU’s commitment to the ECOWAS Court’s judgment also furthers the Court’s authority on human rights issues and indicates a political will within the AU to force compliance with the Court’s decisions.
Additional meetings between Senegal and the AU will elaborate the tribunal’s structure, tentatively designed to include four chambers: accusation, instruction, sessions, and appeals. There is a sense of urgency, however, as the AU has asked that Senegal begin preparations so that a trial can be held “within the shortest time.” Over twenty years after the conclusion of Hissène Habré’s brutal reign, it now appears that survivors may finally receive their day in court.