Wednesday, May 1, 2013

The wheels of international criminal justice grind slowly for Hissène Habré

by Max du Plessis

Hissène Habré was the president of Chad from 1982 until he
was deposed in 1990. He has been living in exile in Senegal since 1990. He was
indicted there in 2000 and is under house arrest under the close watch of elite
Senegalese armed forces. During more than two decades of exile, Habré has seen
numerous parties seeking justice for his alleged crimes against humanity,
torture and war crimes in Chad while in office, with recourse sought in a
multitude of regional, national and international tribunals. Senegal has to
date, however, not tried or extradited Habré to face the charges against him.

Matters culminated in a decision of the International Court
of Justice (ICJ) in The Hague. In its 20 July 2012 decision, Questions relating
to the Obligation to Prosecute or Extradite (Belgium v. Senegal), the
ICJ ruled on Belgium’s application to end a long dispute with Senegal over
Senegal’s duties in respect of Habré and the crimes he is accused of
committing. Belgium’s application against Senegal highlights many pressing
issues around the interpretation and application of the international law and
policy relating to human rights abuses, the fight against impunity and the
enforcement of international criminal norms. It also highlights questions more
generally about commitment to the international legal order, and compliance
with decisions of the ICJ.

Believing that Senegal was flouting its legal obligations,
Belgium approached the ICJ in February 2009 to order that Habré be either tried
or extradited by Senegal. The central feature of the case was the question
under international law concerning Senegal’s ‘obligation to prosecute or
extradite Habré, the former President of Chad (1982–1990), for the commission
of serious international crimes, including crimes of torture and crimes against
humanity’. The ICJ ordered that Senegal must, without further delay, submit the
Habré case to its competent authorities for the purpose of prosecution, if it
does not extradite him.

In response to this judgment, Senegal and the African Union
(AU) have agreed on a way to prosecute Habré. This has now led to the creation
of the Chambres Africaines Extraordinaires – a completely unique domestic
court in Senegal created with specific jurisdiction over international crimes
committed in Chad between 7 June 1982 and 1 December 1990 (the period during
which Habré is alleged to have committed his crimes). Early indications are
that the country plans to bring Habré before this court officially in

This is a promising, albeit late, start. It heralds an
important moment in the struggle to hold human rights abusers accountable under
international criminal law. It is also a significant indicator of Africa’s
commitment to the international legal regime, and of Senegal’s commitment to
the rule of law as embodied in the ICJ’s judgment. All too often a simplistic
and cynical view is peddled (particularly by Western states) about Africa’s
commitment to international norms. While there is much about the Habré saga to
raise questions over Senegal’s fealty to the obligations imposed by
international law, sight should not be lost of the fact that it submitted to
the jurisdiction of the ICJ for the peaceful resolution of a controversial
question of interest to the entire world community. And now, on the back of the
ICJ’s decision, the Senegalese government, under the watchful eye of the AU, is
taking concrete steps to implement the court’s order. 

Compare this case with the record of the United States (US)
before the ICJ. The US had previously accepted the court’s compulsory
jurisdiction (upon its creation in 1946). But in 1986, following the ICJ’s
judgment in Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), the US withdrew its acceptance because
the judgment called on the US to ‘cease and to refrain’ from the ‘unlawful use
of force’ against the government of Nicaragua. The ICJ ruled (with only the
American judge dissenting) that the US was ‘in breach of its obligation under the
Treaty of Friendship with Nicaragua not to use force against Nicaragua’ and
ordered the US to pay war reparations.

More recently, in 2005, the US withdrew from the Optional
Protocol to the Vienna Convention on Consular Relations Concerning the
Compulsory Settlement of Disputes. The Optional Protocol provides for
jurisdiction in the ICJ when any state party to the Vienna Convention on
Consular Relations seeks to sue another state party for violating it. The US
had just lost two cases in the ICJ arising out of situations in which US police
had failed to observe consular access for arrested foreign nationals. The
withdrawal was a response to those decisions.

Or consider Israel’s conduct before the ICJ, recalling the
decision by the United Nations General Assembly of 8 December 2003 at its Tenth
Emergency Special Session to submit the question of the legality of Israel’s
wall or barrier in the Occupied Palestinian Territory for an advisory opinion.
While Israel did not participate in the oral hearings in the ICJ, it chose to
submit written submissions. And, taking into account that the General Assembly
had granted Palestine a special status as observer and that it had co-sponsored
the draft resolution requesting the advisory opinion, Palestine was permitted
to submit a written statement on the question – and to present oral submissions
before the court. The court heard from a number of states and two international
organisations during oral hearings in February 2004. It delivered its advisory
opinion on 9 July 2004, finding that Israel was in breach of international law
in its construction of the separation wall. Israel has scorned the ICJ’s
decision, and the wall continues to be built to this day.

Of course Senegal’s efforts to comply with the ICJ’s
decision have just begun, and they will be closely scrutinised. For now, this
saga teaches at least two lessons. The first is that tenacity pays off in the
fight against impunity, and that eventually, with its wheels grinding slowly,
international criminal justice can be done through states acting in concert
with one another to bring tyrants to book. The second is that Africa remains
(for better or worse) a testing ground for so many of the important
developments in international law more generally, and international criminal
law in particular. And, promisingly for the rule of law on the continent, at
the very least Senegal has demonstrated that it will abide by decisions of the
ICJ, even when the court rules against it.