Miša Zgonec-Rožej
Associate Fellow, International Law

The special court set up in Senegal to try former president of Chad, Hissène Habré, officially opened its investigations on 8 February. This is significant because it leads the way for the first trial of an ex-head of state by another country for rights abuse abroad.

Habré is accused of committing international crimes while he was president of Chad, including thousands of political killings and systematic torture. Habré, who came to power in 1982, fled to Senegal after being ousted in 1990 by Chad’s current president, Idriss Déby Itno, and has since been living in exile.

Despite persistent attempts by the victims to bring Habré to court, the former president has until now evaded justice because of Senegal's unwillingness to bring proceedings. In July 2012, the International Court of Justice in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium vs. Senegal) ordered Senegal to submit the case to its competent authorities for the purpose of prosecution, or extradite him to Belgium (which had been seeking his extradition since 2005).

The Extraordinary African Chambers

The long-delayed prosecution got underway with a change of government in Senegal. In August 2012, Senegal signed an agreement with the African Union on the establishment of a special court and in December the Senegalese National Assembly adopted the law establishing the Extraordinary African Chambers. The Chambers, which will be funded in large part by the international community, will include a president of the trial chamber consisting of a judge from another country of the African Union and another as president of the appeals chamber.

The Chamber's mandate is to prosecute and try the persons most responsible for genocide, crimes against humanity, war crimes and torture committed in Chad from 1982-1990. Habré might possibly be the only person put on trial. The Chamber's Statute rules out any potential claims by Habré to the immunity to which former presidents may be entitled under international law for acts carried out in their official capacity. The highest sentence prescribed is life imprisonment.

According to the present plans, the pretrial investigation is expected to last 15 months and if Habré is indicted it will be followed by a trial in 2014. Victims will be able to participate in the proceedings as civil parties, represented by legal counsel. The Statute establishes a fund to compensate victims, funded by reparations ordered by the Chambers and voluntary contribution by states, international institutions, NGOs and private donors. 

Habré’s case, provided that he stands trial, will mark the first time the domestic courts of one country try the former head of state of another country for alleged international crimes. As a trial of an African leader by an African court in Africa, this is a test case which will help assess the capacities of African states in meeting their commitments in international criminal justice.

Leading the way

This case is an important example of domestic prosecution based on the principle of universal jurisdiction. This principle is an important tool in the fight against impunity because the jurisdiction of international courts is limited and because national authorities are often unwilling or unable to investigate and prosecute international crimes. Despite allegations that the principle of universal jurisdiction has been in decline, Amnesty International has revealed that a total of 163 of all UN member states can exercise universal jurisdiction over at least one international crime.

The Habré case also shows the importance of the obligation to prosecute or extradite (aut dedere aut judicare) to ensure that those responsible for crimes do not evade justice. Under this obligation a state is required either to exercise jurisdiction, which, as shown in the case of Habré may include universal jurisdiction, over persons suspected of certain categories of crimes, like torture; or to extradite the person to a state able and willing to do so; or to surrender the person to an international criminal court with jurisdiction over the suspect and the crime.