Habré was the first African suspect prosecuted under ‘universal jurisdiction’
The Habré trial was the first in which a court in Africa prosecuted a suspect under “universal jurisdiction”— which allows states to prosecute certain heinous crimes even if they were committed abroad, by foreigners and against foreigners. While many countries have universal jurisdiction laws, few have used them. European countries have launched most such cases. South Africa has begun to investigate crimes on the basis of universal jurisdiction but has yet to bring any prosecutions.
One hopes that the Habré case is a harbinger of more prosecutions of atrocities in African courts, whether based on universal jurisdiction or in the courts of the countries where the alleged crimes were committed. Such cases could involve regional or other forms of international support. For instance, the chamber that tried Habré was led by a judge from Burkina Faso, and the court’s statute — developed by the African Union (AU) — provided for a select number of African judges and staff from outside Senegal. The Central African Republic and South Sudan already are anticipating some similar mechanisms.
But the jury is out on what lies ahead.
Several African countries recently created the mechanisms to call human rights violators to account
In the Central African Republic last year, the government passed a law establishing a special judicial chamber within the national court system to prosecute serious crimes committed during the nation’s deadly 2012 violence. The CAR’s new court will include both domestic and international judges and staff.
Last year, South Sudan adopted a peace agreement that authorizes the African Union to establish a hybrid court with South Sudanese and other African judges and staff. Ivory Coast, Congo and Guinea have also increased their domestic criminal investigation and sometimes prosecution of atrocities.
But we don’t yet know what will result. The Central African Republic and South Sudan initiatives aren’t yet operating, and the other countries’ domestic cases have run into serious difficulties.
The Habré conviction offers a case study in how just hard it can be to bring powerful officials to justice.
Habré was overthrown in 1990 and fled to Senegal. A Chadian truth commission found that more than 40,000 people died and torture was systematic during his eight-year regime. After an indictment from Belgium and a ruling by the International Court of Justice, the African Union recommended that Senegal should try him. But Abdoulaye Wade, then the Senegalese president, stonewalled. Not until President Macky Sall took office in 2012 did the case become viable.
Human Rights Watch, my employer, and many other human rights groups and individuals pressed for decades to ensure that the case was not forgotten. Desmond Tutu once called the case a “judicial soap opera.” Sixteen years after he was first indicted in Senegal, Habré went to trial last year.
Lack of justice remains pervasive. In recent years, political abuse and deadly conflicts have left victims across Burundi, the Central African Republic, Congo, Kenya, South Sudan and Sudan — with those responsible enjoying almost total impunity at home.
Meanwhile, Human Rights Watch has observed in places such as Sierra Leone, Congo and Afghanistan that when no one is held accountable for mass crimes and human rights abuses, they — and others — tend to commit more such crimes. But when perpetrators are brought to justice, it strengthens both the rule of law and long-term stability.
That’s why it’s important for Africa to continue to support the International Criminal Court (ICC).
The ICC — the first permanent international criminal court — is relatively young and far from perfect. Since being established in 2002, it has suffered from performance problems and needs to expand its reach to many more places across the globe. But the ICC is the only institution that can potentially intervene anywhere in the world, as crimes are unfolding, and bring cases against the highest level offenders, who use their powerful positions as a shield.
Until recently, all ICC cases involved African countries. For the most part, these countries had asked the ICC to get involved or given the ICC the authority. But the focus hit a raw nerve with a vocal minority of African leaders — especially because of the court’s arrest warrants for President Omar al-Bashir of Sudan for alleged crimes committed in Darfur and its cases against President Uhuru Kenyatta and Deputy President William Ruto of Kenya for crimes allegedly committed during Kenya’s 2007-2008 post-election violence. The Kenyan cases have since been dropped.
Kenya, in particular, has made a concerted assault on the ICC. It recently proposed that an AU committee discuss calling for the ICC’s 34 African members to withdraw from the court. In April, the AU committee resolved to insist on immunity for heads of state and senior government officials before the ICC. In 2015, the AU adopted a protocol to give its regional court authority to prosecute grave crimes, also while granting immunity for sitting heads of state and other senior government officials. That protocol has yet to be ratified by any nation; it won’t come into force unless it is ratified by 15.
AU efforts to withdraw from the ICC conflict with the AU’s own founding document, which clearly rejects impunity. The worrying trend of African leaders defying constitutional term limits only reinforces the importance of the ICC’s mandate to prosecute currently seated officials implicated in serious crimes.
The Habré case is an important reminder that justice matters. More than two decades after the crimes, victims relentlessly pressed to bring Habré to trial. If there are genuine trials before African courts, the ICC won’t need to intervene in cases. African governments may wish to consider responding to the Habré conviction by prosecuting more grave crimes at home, and by supporting ICC prosecutions when such cases are not possible.
Elise Keppler is the associate director of the International Justice Program at Human Rights Watch.