JURIST Guest Columnist Chandra Lekha Sriram, Chair of Human Rights at the University of East London School of Law (UK), says that the favorable response by Senegal's president to an African Union call that former Chadian president Hissene Habre be tried in Africa for alleged torture and mass killings committed by his regime in the 1980s is promising, but the option of trying Habre elsewhere should not be abandoned if Senegal fails, yet again, to follow through…

On 1 July, an expert panel appointed by the African Union (AU) reported to the organization's summit in Banjul that the former Chadian dictator, Hissene Habre, should be tried for alleged torture and mass killings during his regime by the courts of Senegal, the country to which he fled in 1990. The panel announced that this was an "African solution", a phrase that resonates with the AU's mantra, "African solutions to African problems". The Panel's report was endorsed by the AU membership, and on the 3rd of July Senegal's President, Abdoulaye Wade, announced that his country would try Habre, stating that "Africans must be judged in Africa." This is an admirable sentiment, no doubt, but it is worth asking whether a trial is Senegal will offer any solution at all. In light of the potential difficulties, is an African solution really to be preferred above all others?

It is first perhaps worth asking why the Habre case has provoked such interest, and why therefore African countries have been so keen to ensure that he remains in Africa. The current dispute over trying Habre for his past crimes arose because victims of his regime brought a case in Belgium under its universal jurisdiction legislation in 2001. Belgium issued a request to Senegal for Habre's extradition to stand trial. However, in 2005, a judge in Senegal determined that Senegalese courts were not competent to rule on the extradition request.

The President of Senegal then indicated that he did not wish to send Habre to Belgium, and some African nations supported that, viewing the Belgian request as "neocolonial" and insisting that only an African court could try an African leader. This stance is in line with recent statements by Habre's attorney, El-Hadj Diouf, rejecting a Belgian trial: "Belgium is a colonialist. Belgium created a genocide in Rwanda and Congo. Belgium cannot accuse an African man, it is the new colonization. Why Belgium? Hissein Habre is a Chadian." Such assertions resonate in much of post-colonial Africa, although they do not explain why the courts of Senegal could not or would not try Habre themselves, as required by the UN Convention Against Torture (CAT), to which Senegal is a party.

The challenge of Hissene Habre is not a novel one. He is not the first African to face trial in Europe for war crimes, crimes against humanity, or torture, nor will he be the last. The worries of Africans about controlling their own fate, and the guilt of their former colonizers, are very real.

But so are the legal requirements that certain crimes be tried, no matter where they occurred. It is partly for this reason that the African solution of the Special Court for Sierra Leone was nuanced by the recent transfer of Charles Taylor to The Hague. He still faces a partially African court, but in a European venue. The move was not one of colonization, but of pragmatism: if he didn't face trial outside the region he had so decimated, it was feared, he might not face a functional trial at all. Similarly, the dilemma of Habre was for some time not that of African trial vs. European trial, but of trial elsewhere vs. no trial at all.

Following international pressure on Senegal, the AU set up a panel of experts to consider the situation. In May, the Committee Against Torture, set up to monitor the CAT, issued a statement giving Senegal 90 days to try or extradite Habre, and indicating that the country was in violation of its obligations under the CAT for not having dealt with Habre's past abuses during the 15 years he spent in exile there.

The AU panel indicated not only that Habre must be tried, and could indeed be tried in several African venues, whether Chad, Senegal, an ad hoc tribunal, or any other African nation that has ratified the CAT, but also indicated that Senegal would be the most suitable location for a trial. Further, contrary to the finding of the earlier Senegalese ruling that courts of that nation did not have competence to even rule on the extradition request, the AU experts found that Senegal not only had jurisdiction over the case, but an obligation to act in accord with its duties under the CAT.

The AU panel's contradiction of the Senegalese judge regarding competence might seem like a technicality, but it highlights a potentially serious problem. Senegalese courts may be the most appropriate venue to try Habre, but they have evinced a distinct aversion to doing so. The evasion by the judge in 2005 was only the latest example. A case had previously been brought in Senegal against Habre through the exercise of universal jurisdiction, in 2000. Habre was placed under house arrest, and the case proceeded, briefly.

However, following apparent interference by politicians, the country's highest court ruled in 2001 that Senegalese courts could not hear a case involving crimes outside the country, and the Senegalese President even suggested that Habre could be sent to any country, such as Belgium, interested in trying him. While it is to be hoped that Senegalese courts are now more immune to political pressure, and interested in implementing the country's obligations under the CAT, the 2005 judicial decision on competence suggests the opposite.

It remains to be seen whether Senegal will now fulfill its obligations under the CAT, as articulated by the Committee Against Torture and the AU Panel.

President Wade's announcement holds out the promise of a trial in Senegal, perhaps through the creation of a special court in the country with wider African jurisdiction, and in collaboration with Chadian authorities. If that promise is fulfilled, then the idea of an African solution might at long last be vindicated, but if not, one can only hope that one of the other venues identified by the AU Panel will be utilized. However, Senegal has avoided trying Habre for over 15 years, so some skepticism may be warranted. If no steps are taken, and no African solution emerges, allegations of neocolonialism should not deter considerations of trying Habre elsewhere in the world.

Of course, there is potentially a more positive interpretation of these
events: that the recommendation and President Wade's announcement constitute a real break with the past on a continent where countries routinely elevate sovereignty above examination of internal abuses. If so, then the AU decision itself is a sort of African solution to an endemic African problem: impunity of sitting and former leaders.

Professor Chandra Lekha Sriram is Chair in Human Rights and Director of the Centre on Human Rights in Conflict at the University of East London School of Law, and is currently conducting research in Sudan on that country's Comprehensive Peace Agreement.
——–