"An African Solution to an African Problem"

Last week, Senegal began setting up a court to try former Chadian dictator Hissein Habre for crimes against humanity. Habre led Chad between mid-1982 and 1990, coming to power and being forced out via coups. Under his command, the armed forces of Chad repelled attacks from Muammar Gaddafi's Libya in the north of the country, and fought a simmering civil war throughout the 1980s marked by torture, disappearances, and executions of regime opponents.

An estimated 40,000 people were killed and 200,000 tortured under Habre's rule.

Following a coup in 1990, Habre fled for Senegal, where he has remained under some degree of protection since. Belgium sought to have Habre extradited to stand trial in the Hague in 2005. Senegalese president Wade, who like many heads of state, worry about the precedent of trying leaders for war crimes, resisted calls to hand over Habre.

After the defeat of Abdoulaye Wade in 2012 however, Senegalese President Macky Sall negotiated the creation of an African Union-mandated court, paving the way for trial of the former dictator.

Writing on Aljazeera, Chandra Lekha Sriram observes that, assuming Habre does eventually stand trial, "What we might be seeing is a shift from the narrative of Habré as an African Pinochet, and international justice and the ICC as neocolonial, to the fruition of one possible model for "African solutions to African problems".

A possible "African solution" is hugely significant for several reasons. First, as Sriram again points out, this case would represent the first time a country's national court tries another country's former head of state for crimes against humanity. This model would provide an alternative path to bring political leaders to justice in addition to domestic courts, ad hoc international tribunals, or the oft-maligned International Criminal Court.

Second, and perhaps more significantly, the Senegalese model may set an important precedent for trying for former heads of state, and may build on a growing collection of jurisprudence and rulings breaking down the once insurmountable barriers to accountability for war crimes committed at the highest political levels.

Katherine Sikkink's 2011 book Justice Cascade (W.W. Norton & Co.) gives an excellent accounting of the barriers overcome in recent decades. The first countries to try former members of an oppressive military regime were Greece and Portugal, in the mid-1970s. These trials, while significant in that they were able to charge former leaders, were not human rights trials. They were trials for treason and overthrowing the state. Nevertheless, these trials “broke the back” of regime hardliners and supporters, and thus opened the door to the possibility of punishment for other abuses. 

The next experiment with trials of members of a former regime came in mid-1980s Argentina, when that country tried nine members of the former military regime. In the case of Argentina, however, prosecutors did in fact try—and convict—members of the military junta for human rights abuses committed between 1976 and 1983. As prosecutors continued to target low-level military officers (rather than just political-military leaders), this provoked a backlash in segments of Argentine society and regime supporters launched a coup attempt in 1987. This instance is hailed by some as proof that human rights trials destabilize new democracies.

Sikkink argues, however, that despite the backlash, coup attempt, and the amnesty laws and pardons that followed, the symbolic societal rejection of immunity for human rights abuses and the new relationship between the Argentine state and military were firmly in place. Furthermore, the initial successes in Argentina had already changed people’s beliefs and expectations about justice in transitional contexts throughout the globe. In the mid-1970s, when Greece and Portugal were experimenting with transitional justice, the idea of prosecuting heads of state for human rights abuses was unthinkable. After the Argentine trials, it was not.

Further, the Argentine trials informed a series of international treaties and conventions including the Convention Against Torture, The Genocide Convention, and the International Criminal Court--all of which embody and codify what was once a novel approach to international law: individual responsibility.

This idea of individuals—rather than states—being tried for crimes against humanity, combined with the ability of individuals to file complaints of human rights violations (in Argentina) is now a cornerstone of international human rights law.

Heads of state and senior political leaders have now been tried in a variety of fora: domestic courts (Pinochet, Fujimori, and now Efrain Rios Montt), international tribunals (the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda),  and the International Criminal Court, which handed down its conviction of Thomas Lubanga last year.

The Senegalese model is a positive step forward for accountability, especially in Africa. While any number of factors could prevent the trial--not expected to start until 2015--from yielding a ruling (death of the 70 year old defendant, political meddling, mishandling of evidence, etc.), the precedent and possibility of prosecution for current and future African (and non-African!) leaders are in themselves a positive development.