The trial of former Chadian president Hissène Habré in Dakar, Senegal, currently postponed until September 7, marks a significant development in the global effort to bring justice to the victims of authoritarian leaders. Its reverberations will likely be felt across Africa. The trial is historic for several reasons. To quote Human Rights Watch: “Habré’s trial will be the first in the world in which the courts of one country prosecute the former ruler of another for alleged human rights crimes. It will also be the first universal jurisdiction case to proceed to trial in Africa.”
The concept of universal jurisdiction was prominently applied in the arrest of General Augusto Pinochet of Chile in London in 1998, though he never stood trial. It allows the courts of one country to try serious crimes committed in another, regardless of the nationality of the victims or perpetrator(s). The Habré trial therefore demonstrates significant political will on behalf of some African elites to bring justice to the continent’s citizens, even those of other countries.
Habré, president of Chad from 1982 to 1990, faces charges of crimes against humanity, war crimes, and torture during his tenure. His political police, known as the Directorate of Documentation and Security, arrested thousands of Chadian citizens without cause, accusing them of assisting rebels. One victim, Ginette Ngarbay, was arrested for giving a rebel a drink of water. Others were executed, kidnapped, disappeared, or tortured. Habré targeted members of the Hadjerai and Zaghawa ethnic groups for particularly brutal treatment.
The Habré trial marks a stark contrast with the legal charade between South Africa and the International Criminal Court that took place last month. On June 29, South Africa refused to extradite Sudanese President Omar al-Bashir, and indeed is believed to have helped him escape from detainment, despite the presence of an ICC warrant issued for his arrest. As a member of the court, South Africa was legally required to hand the president over to international authorities.
Though perhaps one of the more brazen snubs of the ICC, South Africa’s actions point to a common sentiment across Africa. Many of the continent’s leaders feel that the court targets them unfairly. A case can be made to support this assessment. Currently, the court is investigating nine different conflicts, all of which are located in Africa. And of those so far indicted, all 32 are African. Nevertheless, those who defend the court point out that there are a large number of African signatories to the Rome Statute, the treaty which grants the ICC jurisdiction. In fact, there are more African signatories (34) to the treaty than any other region.
Other ICC defenders point to the role of the UN Security Council, which has been responsible for referring two of the nine cases it is currently reviewing. They claim it is wrong to hold the court solely responsible for which cases it investigates when it is obligated to act on Security Council recommendations.
However one interprets the ICC’s track record, the Habré trial suggests a different approach to justice in Africa. While in the ICC it is the international community that is seeking justice, in the Habré case it is solely African countries relying on the Senegalese judicial system, not an international tribunal. This protects the proceedings from the frequent claim levied at the ICC, that it is really the United States and European Union trying the continent’s dictators, though Habré has still made such accusations of the current trial. In addition, the method employed in the Habré case looks less like “punishing” a country that has signed a major international treaty when compared with indictment by the ICC.
While promising, there are still questions about the new system’s effectiveness. Habré has thus far been able to obstruct, and temporarily postpone the proceedings. On the first day of the trial he had to be forced out of his cell in order to attend. Once there, he was so disruptive that the trial was suspended for the rest of the day. On the second day, Habre’s lawyers failed to show. The judges postponed the trial until September to allow time for his new representation to prepare their case.
The postponement is a significant use of resources for a trial that had only three months’ worth of funding. As Human Rights Watch lawyer Reed Brody explained, “A delay for 45 days in a trial that was only supposed to last 90 days is going to increase the budget by almost 50%.” Thus far it is unclear who will foot the bill for these added expenses.
In light of these developments, the Habré trial suggests a number of things that will be required for a new system of African justice to succeed. First, the host country of the trial must be willing to cooperate. Although a Senegalese judge indicted Habré in 2000, the judicial process has only proceeded in the presence of a willing president, in this case Macky Sall, who was elected in 2012.
Second, the African Union’s cooperation is essential. The AU has already played an important role in the Habré trial, by setting up and assisting in the funding of the Extraordinary African Chambers with Senegal, and in pressing the country to adjust its legal code to include universal jurisdiction for international crimes.
Going forward, the AU should continue to press other countries on the continent to make similar adjustments to their legal systems to facilitate future proceedings. It should consider adopting a continent-wide statute, based on the Statute of the Extraordinary African Chambers that allows for the prosecution of “crimes and serious violations of human rights” in any African country. In light of the Habré case, the statue should be amended to clarify how such trials will be funded, and how representation for the accused will be assured.
Third, and most importantly, the victims of injustice play a significant role pressuring countries, non-governmental organizations, and international institutions to respond to grave violations of human rights. Many victims of the Habré regime, such as Guengueng Souleymane, have been speaking out for decades. By telling their stories, again and again, they create conditions where inaction is morally reprehensible. More than the identity of the institutions that facilitate judicial proceedings, it is the actions of the victims that will be the main determinant in whether other dictators are brought to justice.
Ann Marie Wainscott is Assistant Professor in the Department of Political Science at St. Louis University.