(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)
On July 24, Senegal and the African Union agreed to create Extraordinary African Chambers within the Senegalese justice system to try Habré.
The agreement came just days after the International Court of Justice ruled that Senegal had to prosecute Habré “without further delay” or extradite him to another country to face trial.
Habré (left) is accused of thousands of political killings and systematic torture when he ruled Chad, from 1982 to 1990, before fleeing to Senegal. For more than 21 years, his victims’ frustrations have grown steadily as they watched obstacle after obstacle preclude his trial in Senegal. Many had given up hope on a trial there and believed that Belgium, where Habré was indicted in 2005 offered their only chance of seeing justice. But the July 20 decision by the ICJ and the recent agreement between Senegal and the AU appear to mark a turning point in the long campaign to bring Habré to justice.
Although Senegal’s Parliament needs to approve the new court and the government is seeking international funding, the court is expected to be operational by year’s end.
The court will be presided over by African judges appointed by the African Union and will include Senegalese judges. Its mandate will be to prosecute the person or persons most responsible for international crimes committed in Chad between 1982 and 1990, although it is expected that only Habré will be tried before the court. Under the court’s statute, prosecutors can go after “the most serious” of Habré’s crimes, rather than charging him with all the acts of which he is accused. They can also introduce as evidence the results of prior Belgian and Chadian investigations into Habré’s alleged crimes. These measures aim to ensure Habré’s trial is efficient and does not drag on for years. Habré, aged 69, and his victims are not growing any younger, and many victims have already died. It is therefore imperative that justice be dispensed fairly – in accordance with international standards – and swiftly.
The ICJ decision, which requires Senegal to move forward quickly to ensure Habré faces justice, is worth some discussion as it is the first ruling on the scope of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by the world’s highest court. The Court found that, in allowing Habré to avoid trial, Senegal had failed to meet its CAT obligations and identified two specific breaches:
► First, as required by Article 6(2) of anti-torture convention, Senegal failed to make a “preliminary inquiry” into the crimes allegedly committed by Habré once it became aware of the allegations against him. Under the CAT, a preliminary inquiry should take place as soon as a person suspected of being responsible for acts of torture is known to be on the State’s territory. The Court concluded that Senegal should have launched an inquiry no later than 2000 when Habré’s victims filed their first complaint in Senegal. The Court made clear that Habré’s initial court appearance in 2000 before a Senegalese judge – which confirmed his identity and informed him of the offenses of which he was accused – did not constitute an actual inquiry into the charges against him. After Senegal amended its laws to confer jurisdiction on its courts for extraterritorial crimes, Habré’s victims filed a second complaint in Senegal in 2008. Yet even since then, Senegal has not investigated the charges against Habré.
► Second, the Court reaffirmed the aut dedere aut judicare principle – that is, States’ legal obligation to “prosecute or extradite” persons who commit torture – and found that Senegal violated Article 7(1) of CAT by failing to submit the case to its competent authorities for prosecution or alternatively by extraditing Habré. The Court made clear that States have an obligation to prosecute torture suspects domestically “within a reasonable time” but also have discretion to fulfill their obligations through extradition. The State may choose which course of action to take. The Court concluded that Senegal’s obligation to prosecute Habré for torture applies only to those acts allegedly committed after June 26, 1987, when the CAT entered into force for Senegal but noted that Senegal may prosecute crimes committed before that date. The court rejected Senegal’s argument that difficulties in securing international financing prevented it from moving faster to try Habré. It also ruled that Senegal’s obligation to “prosecute or extradite” Habré was unaffected by a 2010 ruling by the Court of Justice of ECOWAS, the Economic Community of West African States, which required Habré’s trial before a “special ad hoc procedure of an international character.”
The ICJ ruling is clearly a victory for Habré’s victims. But it also sets an important precedent for ensuring states fulfill their legal obligations under the CAT and thus for the fight against impunity for torture more broadly. Indeed, in deciding that Belgium had standing to bring the case, the Court concluded that parties to the CAT have a “common interest in compliance,” and therefore an erga omnes right to invoke the responsibility of any other State party. This finding is a resounding vindication for Belgium which has stood by Habré’s victims for so many years and which has fought to ensure he faces justice. It should encourage other countries to take similar action before the ICJ to ensure victims find redress for serious international crimes.
Aminata Touré (right) told The New York Times that Senegal intended trial proceedings to begin later this year. If the new plan between Senegal and the AU is implemented expeditiously, it might ensure Habré’s victims see justice in their lifetime and could set a strong precedent for the fight against impunity in Africa.