The failure of the former Chadian dictator, Hissène Habré to overturn a conviction of guilty imposed by a special AU tribunal at his trial in Dakar, Senegal last year is a resounding success for the concept of African justice, writes Tom Collins.
Attempts by Hissène Habré’s lawyers to overturn the ex-Chadian president’s life sentence have fallen short in Senegal, setting in stone the resolute success of the African Union (AU) and Senegalese tribunal set up to try him last year.
Habré was convicted of crimes against humanity including summary execution, torture and rape by the Extraordinary African Chambers (EAC), a body created by Senegal and the AU, which brought to a close a 17-year struggle to see justice done.
After refusing to recognise the authority of the tribunal – a tactic used by others cut from the same cloth, like Slobodan Milošević and Charles Taylor – Habré requested an appeal in 2017 but, to his disappointment, all charges have been upheld – except for rape.
Ougadeye Wafi, the Malian judge overseeing the appeal, said he could not uphold the rape conviction as it was not on the original indictment, but that this would not affect the life sentence.
Habré has been living in exile in Dakar for 25 years and according to a 1992 Chadian Truth Commission, his government was responsible for the use of systematic torture and the death of 40,000 people during his rule (1982-1990).
The wrapping up of this case is hugely symbolic as it indicates a growing maturity among African juridical structures, which could test the credibility of the International Criminal Court (ICC). This is the first time an African dictator has been sentenced in the court of another African nation.
The EAC was set up in 2013, following on from former Senegalese President Abdoulaye Wade changing the country’s constitution in 2008 to allow the prosecution of non-Senegalese residents for crimes against humanity – a move aimed directly at Habré. This was crucial to snaring Habré as it instituted the concept of universal jurisdiction into Senegalese law.
Universal jurisdiction is a principle of international law that allows national courts to prosecute serious crimes even when committed outside sovereign territory and against foreign victims. Many feel it should be mandatory in all nations. Its absence greatly inhibits Africa as it can eradicate the usual facile impunity enjoyed by those fleeing skeletons in their closet.
Wade then U-turned in 2011, saying he would repatriate Habré to Chad – causing an international outcry until, in 2012, the International Court of Justice ordered Senegal to either do it themselves or extradite him to the Hague.
The trial went ahead in July 2015, and thanks to a total of 93 witnesses and a huge cache of documents recovered from Chad, Habré was convicted in 2016. While the Chamber has now shut down – having fulfilled its function – it used exactly the same law as the ICC.
Four Senegalese investigative judges spent 19 months digging for evidence and went to Chad four times in total to procure files from Habré’s notorious police force, the Documentation and Security Directorate (DDS).
The judges also enlisted the help of experts on data analysis, forensic anthropology, handwriting and the historical and functional context of Habré’s government and military.
Although the ICC could not try Habré as their statute only has jurisdiction over crimes committed after 2002, the success of the EAC puts into question the future function of the ICC, with many accusing it of fulfilling a ‘neo-colonial’ function.
In the past the ICC has dealt with Joseph Kony, Omar al-Bashir, Muammar Gaddafi and, to the outrage of many, Uhuru Kenyatta.
Recently a non-binding decision in the AU has led to a collective decision to withdraw from the ICC, and South Africa, Burundi and The Gambia have all announced official exit plans. With an African court solidly carrying out international justice, the sentiment of many in the AU seems wholly justified.
If more countries can partner with the AU to create courts capable of prosecuting large-scale human rights abuses and introduce universal jurisdiction, then the ICC will become largely redundant.
Habré will serve his sentence either in Senegal or in another African country.