The Habré Case at the International Court of Justice – Belgium versus Senegal

Former Chadian President Habré leaving the Court of Appeal in Dakar after attending a hearing in 2005 (Recup Seyllou, AFP)

A couple of months back I wrote a post on the efforts of international and Chadian human rights advocates to prosecute the former President of Chad, Hissene Habré. Habré is accused of killing and torturing thousands during his stay in power between 1982 and 1990. Two of the main actors who have been fighting for a prosecution of Habré for nearly two decades are the Chadian lawyer Jacqueline Moudeina who received the Alternative Peace Nobel Prize in 2011 for her persistent work to end impunity for Habrés crimes, and Reed Brody from Human Rights Watch.

An interesting twist to the case came up when victims supported by Moudeina and Brody decided to file a case against Habré in Belgium on the principle of universal jurisdiction. Attempts to prosecute Habré in his home country of Chad and his country of exile, Senegal had previously failed. Belgium, however, is one of the countries known for its extensive use of universal jurisdiction.

In short, the idea behind universal jurisdiction is that there are some norms in public international law that are widely accepted to a degree that they have become binding for everyone (jus cogens). Consequently, a violation of these norms is considered a crime against the entire community of states or even humanity as such. These so called erga omnes norms include bans of genocide, slavery, torture and racial discrimination.

In the 2000’s a trend to prosecute foreign government officials in national courts through universal jurisdiction began to emerge. Diplomatic rows stemming from these court cases led to countries like Spain and Belgium limiting the use of universal jurisdiction in their courts. Indeed, the case of Habré was one of the last large-scale universal jurisdiction cases accepted in Belgium, the result of naturalised Belgian citizens who had been victims pursuing the case.

Reed Brody from Human Rights Watch recovering documents connected to Habré's crimes in Chad (Reed Brody)

Belgium has meanwhile filed for the extradition of Habré four times. Three of the requests have been denied while the latest is still pending. Senegalese courts themselves have so far dismissed prosecuting Habré, declaring themselves as not competent in the case, apparently under the pressure of the current Senegalese President Abdoulaye Wade.

Since Senegal has denied both extraditing and trying Habré, Belgium took the case to the International Court of Justice (ICJ) in 2009. More precisely, Belgium accuses Senegal of violating the UN Convention against Torture and breaching its obligations to bring to justice those accused of crimes against humanity by neither trying nor extraditing Habré. All UN member states are automatically parties to the statute of the ICJ and by accepting the court’s jurisdiction in a particular case the states involved in a dispute automatically accept the ruling to be binding. Since we are living in a world of sovereign states with little possibilities to actively enforce international law and international rulings, it remains to be seen if Senegal will abide to the rules. As the International Justice Tribune recently reported, the ICJ has now set the first public hearings for March 2012.

Human rights activists fighting for a trial of Habré in Senegal give a press conference

Even though a ruling of the ICJ is months away, it is clear that the pressure on Senegal is mounting. When I wrote my last piece on the case, Senegal had asked the African Union (AU) to take up the case of Habré. After some discussions about whether Habré could be tried by Rwanda, the AU has meanwhile asked Senegal to either try Habré itself or extradite him to a country willing to prosecute him. It is in the AU’s best interest to see the case dealt with as soon as possible since African politicians cannot credibly be accusing the International Criminal Court of focusing on African perpetrators on the one hand, while failing to prosecute their suspected war criminals themselves when they have an opportunity to do so.

It is regrettable that those fighting to bring Habré to trial had to go through Belgium, as a trial in Senegal or especially in Chad itself would have been much closer to the victims and nearer to the realities on the ground. A trial of Habré in Chad does remain a theoretical possibility and would probably be the best solution from the victims’ point of view.

During an event in Berlin in December 2011, Moudeina, the Chadian activist fighting for a prosecution of Habré’s crimes, told the audience that Chadian authorities, including President Déby, viewed an extradition of Habré to Chad as a favourable option in July 2011. Yet, according to Moudeina, the Chadian President has not taken up the topic again since the AU introduced the option to try Habré in Rwanda.

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About Patrick Wegner

PhD student at the University of Tübingen and the Max-Planck-Institute for Comparative Public Law and International Law. Working on the impact of International Criminal Court investigations on ongoing intrastate conflicts.
This entry was posted in African Union (AU), Belgium, Chad, Crimes against humanity, Exile, Justice, Universal Jurisdiction and tagged , , , , , , , . Bookmark the permalink.

9 Responses to The Habré Case at the International Court of Justice – Belgium versus Senegal

  1. Daniel says:

    This is a good summary of the events Patrick. Hopefully the AU will consider the Rwanda option and this might be the beginning of a continental criminal law regime. I suggest an addition to the third last paragraph of the word ”suspected” as detailed hereunder –

    ”It is in the AU’s best interest to see the case dealt with as soon as possible since African politicians cannot credibly be accusing the International Criminal Court of focusing on African perpetrators on the one hand, while failing to prosecute their ”SUSPECTED” war criminals themselves when they have an opportunity to do so.

  2. Mark Kersten says:

    Another great post – thanks Patrick.

    I’m intrigued by one point, in particular. If Belgium was successful in its request to have Habré extradited, could it not just flip him over to Chad or Senegal (maybe Chad or Senegal would have to make its own extradition request in this instance)? If so, then the worries and regret that those want to bring Habré to trial had to go through Belgium might be overstated and Belgium acts as an intermediary rather than an end.

    • Maya says:

      Mark, are we talking about international justice or the international circus? There is a body of law that governs extradition, and, no, it is not possible to just “flip” suspects around on the assumption that they’re guilty and that it doesn’t matter where the trial takes place. Have you heard anything about the Julian Assange case? Wouldn’t it just be great if Sweden could have Assange extradited from the UK so that they can then “flip him over” to the US? I mean, we all know he’s guilty anyway.

  3. Thanks for the comments Daniel and Mark. Of course it should say suspected in the line you mentioned, I corrected it.
    As to your comment Mark, if I understood it correctly the ICJ is deciding whether Senegal has an obligation to try Habré or hand him over to Belgium. The ICJ has been called to solve a dispute between two states, so third states like Chad are out for now. I don’t know whether it would be legally possible for Senegal, Chad and Belgium to strike a deal that is in compliance with an ICJ ruling once the case has been decided.

  4. Robin M. says:

    Mr Wegner,

    First of all, thanks for the post.

    As I read in the Belgium´s ICJ request, Belgium is filing his case on ground of articles from the Convention against Torture and International customary law.

    I would have like to see Belgium strenghening his case by using some general principles of law or judicial decisions and teachings of the most highly qualified publicists of the various nations (art 38 c. & d. ICJ statutes). Would you have an idea of what would then be relevant to use?

    Regards,
    Robin M.

    • Dear Robin,

      thanks for the comment. Since I am a political scientist and not a lawyer I am not familiar with the legal literature and the commentaries on issues of ICJ rulings and customary international law. I am afraid that I am also not qualified to judge how strong Belgium’s case in front of the ICJ is from a strictly legal perspective.

  5. robhaward says:

    Awesome points! I completely read your article that was a great one.The way on how you describe information. But still I believe it would be much better to give the power to review to an independent judicial authority -presumably the International Court of Justice. Thanks a lot for sharing your post!

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  6. Pingback: Trying Hissène Habré: international justice in Senegal’s courts | The More Things Change

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