JURIST Guest Columnist Chandra Sriram of the University of London, School of Oriental and African Studies, School of Law says that the ICJ should order Senegal to extradite former Chadian president Hissène Habré to Belgium to face prosecution for war crimes and crimes against humanity…

Today the International Court of Justice (ICJ) begins hearings in a case brought by Belgium against Senegal, regarding the latter’s obligation to extradite former President of Chad Hissène Habré for crimes committed during his rule from 1982-1990. If the ICJ finds that Senegal should extradite Habré to Belgium, this would be the beginning of the end for a long journey to justice for him, across time and space, since he left office some 22 years ago, and since he was first indicted for crimes against humanity by a court in Senegal some 12 years ago.

Why are Belgian courts interested in prosecuting Habré for crimes committed decades ago, and are they seeking to exercise universal jurisdiction? While the original complaints filed in Belgium, which led it to request that Habré be extradited in 2005, referred to crimes committed against Chadian and Belgian nationals, the current charges and extradition request refer to a victim who is now a Belgian national of Chadian origin, so the court is exercising passive personality jurisdiction based upon his nationality. Belgium argues that Senegal has an obligation under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and has obligations under customary international law regarding crimes against humanity, to either prosecute him domestically or extradite him to a state which is prepared to pursue an appropriate prosecution. During Habré’s rule, Human Rights Watch claims that over 1,200 were killed and over 12,000 tortured, while Belgium’s pleadings at the ICJ also cite a Chadian report suggesting as many as 40,000 were killed.

Habré has been in Senegal for 21 years. Why haven’t Senegalese courts prosecuted him? In 2000, when he was originally indicted in Senegal, a court declined to pursue the case on the grounds that while torture was a crime in Senegal, the court did not have jurisdiction to prosecute a crime committed abroad. A complex legal and political game followed. Senegalese President Abdoulaye Wade has publicly rejected prosecuting Habré, but simultaneously engaged in negotiations regarding prosecution. In 2006, following the original Belgian request, the African Union (AU) recommended an “African solution” and suggested that Senegal prosecute him “on behalf of Africa” rather than permitting him to be tried in Europe. The Economic Community of West African States (ECOWAS) subsequently proposed a hybrid special tribunal based within Senegalese courts. This was never created — while an international group of donors promised over $11 million to fund the tribunal, Senegal argued that the tribunal would cost more than €27 million. Belgium has suggested, based on its experience trying individual cases at a much greater distance, that the costs would range between €200,000 and €300,000. Senegal has withdrawn from negotiations with the AU on the creation of a tribunal. At the same time, Senegalese courts have repeatedly rejected Belgian requests for extradition on purported technicalities, claiming that original and valid requests have not been received. Advocates suggest that the correct documentation may have been withheld by the Senegalese government.

The legal and budgetary manipulations likely derive from a political source. In general, states have been extremely resistant to accountability for current or former heads of state. The trials of Slobodan Milosevic and Charles Taylor are notable exceptions. The AU has been particularly resistant to such accountability; in 2009 the head of the AU announced the request of AU leaders that the proceedings against Sudanese President Omar al-Bashir be deferred. The objections derive from concerns about protection of state sovereignty generally, but also in some cases demonstrates solidarity amongst leaders with a tenuous or disputed hold on power and records of abuse themselves. Wade ran for a constitutionally-contested third term in February, amidst allegations of abuse and repression. He now faces a runoff election, and undoubtedly will hope that fellow leaders accord him the same protection he has given Habré.

Why not send Habré to Chad? A short answer is that Chad is not currently seeking to prosecute him for torture or crimes against humanity; it has stripped him of his immunity, and in 2011 advocated his extradition to Belgium. Further, sending Habré to Chad has serious human rights implications — he was tried in absentia and sentenced to death in Chad for unrelated crimes.

Habré is a former head of state — doesn’t he have immunity for alleged crimes committed in his official capacity? In 2002, the ICJ decided that Belgium was in violation of its international legal obligations in respect of the Democratic Republic of Congo (DRC) in issuing an arrest warrant for the DRC’s sitting foreign minister, Yerodia Ndombasi, in violation of his official immunities. However, Habré is no longer a sitting head of state, and Chad has waived his immunity; these are both exceptions noted by the ICJ in its 2002 decision.

The ICJ hearings continue until March 21, and its decision may take several months. In the meantime, Senegal has promised that Habré will not be sent elsewhere. In light of Senegal’s manifest failure to prosecute him and tactics avoiding extradition or the creation of a special tribunal, Habré’s loss of immunity, and Belgium’s interest in prosecuting him, the ICJ should decide in favor of Belgium’s request and order his extradition.

Chandra Sriram is a Professor in Law at the University of London, School of Oriental and African Studies, School of Law. Her areas of teaching expertise include war and human rights, public international law, international criminal law, human rights, conflict prevention and post-conflict peace building. She has published several books and articles on these issues. Sriram is currently the Principal Investigator of a project entitled “Transitional justice as peacebuilding?” funded by the United States Institute of Peace.

Suggested citation: Chandra Sriram, ICJ and Habre: A Possible End to a Long Road to Accountability, JURIST – Forum, Mar. 12, 2012, http://jurist.org/forum/2012/03/chandra-sriram-icj-habre.php.