This tactic provides a pathway for victims of severe abuses to seek justice denied them in their home country.
Image: Stephanie Hancock/Human Rights Watch
Universal Jurisdiction and the Hissène Habré’s Trial
Although it may require time, the application of universal jurisdiction has gained recognition by countries around the world as an effective way to combat impunity. Universal jurisdiction is a legal principle of international law. It allows national courts to prosecute such crimes regardless of where they occurred or the nationality of the perpetrator or victim. Universal jurisdiction is especially effective regarding crimes considered so grave that accountability for them should concern humanity as a whole.
The trial of former Chadian dictator Hissène Habré that took place in Senegal is precedent setting. It provides an excellent example of the benefits and challenges in applying universal jurisdiction. Habré’s case was groundbreaking in that it was the first trial of an ex-leader by an African Union-backed court. This was an outstanding victory in advancing the use of universal jurisdiction. On May 30, 2016, Hissène Habré was found guilty of crimes against humanity, rape, and sexual slavery in the Senegalese Extraordinary African Chambers courtroom. The court sentenced him to life in prison.
From Repression to Justice
The Chadian Association of Victims of Crimes and Political Repression (AVCRP) was founded in 1991 by Souleymane Guengueng and other survivors of Habré’s brutal regime. They founded AVCRP to demand justice and compensation for victims. It later became the Association of Victims of the Regime of Hissene Habre (AVCRHH).
The trial in Senegal began on July 20, 2015. It required more than 20 years of victim-centered accountability efforts – initiated, lead and carried to fruition. Ninety three (93) witnesses, most of them traveling from Chad, testified about torture, rape, sexual slavery, mass executions, and the destruction of entire villages. If not for the tenacious campaigns for justice by determined victims the trial might never have happened in Senegal. Two Chadian lawyers supported them – Jacqueline Moudeina and Delphine Djiraibe. They had essential backing and assistance from Human Rights Watch (HRW). This included their discovery of abandoned files of Habré’s political police which named thousands of victims.
Ongoing efforts were carried out by a coalition made up of the AVCRHH, HRW, the International Federation of Human Rights Leagues (FIDH), Agir ensemble pour les droits de l’Homme (AEDH), and African Assembly for the Defense of Human Rights, (RADDHO), among others.
Hissène Habré was president of Chad from 1982 to 1990. He fled to Senegal after being deposed in 1990 by the current president, Idriss Déby Itno. A 1992 Truth Commission accused Habré’s regime of 40,000 political assassinations and systematic torture. In 2000, he was arrested and indicted in Senegal. Over the next 12 years, the trial against Habré kept pending. This was because, after political interference by the executive, Senegalese courts ruled they had no jurisdiction to try the case because the crimes were not committed in Senegal.
Ensuring Justice Beyond Borders
In the past 20 years, there has been an increase in the use of universal jurisdiction, mainly but not exclusively, by courts in European countries. Cases in European courts have involved crimes committed in Rwanda, the Democratic Republic of Congo, Afghanistan, Guatemala, Kosovo, Iraq, Liberia, Bosnia and Herzegovina, Argentina, and Syria, among others. The case against Habré in Senegal set another precedent, similar to the 1999 case against the former Chilean dictator, Pinochet.
As demonstrated by the Habré case, when suspects cannot be prosecuted before the courts of the country where the crimes were allegedly committed or before the International Criminal Court due to its statute, universal jurisdiction becomes an important safety net to ensure that suspects of atrocities do not enjoy impunity in a third state.
Balancing Justice and Sovereignty
The African Union has encouraged its member states to adopt universal jurisdiction legislation against war crimes, crimes against humanity and genocide. At the same time, during the 19th Summit of the African Union Assembly in 2012, members raised their concerns regarding “abuse of the universal jurisdiction.” One area of concern originated from the influence of politics on the process. Some critics saw this as bias, which could impinge upon the sovereignty of African nations. In response, the African Union adopted a Model Law on Universal Jurisdiction. In 2014, the South Africa Constitutional Court provided a guide and mandate to investigate crimes based on universal jurisdiction.
Belgium provided crucial pressure to prosecute the Habré case, seeking his extradition for trial. Belgium’s universal jurisdiction legislation came into force in 1993. It included universal jurisdiction over crimes against humanity and genocide in addition to war crimes. A wide variety of cases show the important impact universal jurisdiction has for victims to seek justice and fight against impunity.
The trial in Senegal did indeed set a precedent. In fact, the use of universal jurisdiction by national courts is still a rare phenomenon. States have taken few steps to ensure the actual implementation of universal jurisdiction in their courts. Among the barriers are the vague definition of specific crimes, the failure to incorporate the principle into domestic law, and the difficulty to provide evidence in areas like investigation, documents and witnesses.
A Beacon of Hope for Victims
Even if universal jurisdiction is not possible in many cases, international criminal jurisdiction compensates for some of the weaknesses of domestic criminal jurisdiction. Therefore, universal jurisdiction has been serving as a wake-up call to tyrants everywhere. Universal jurisdiction is a tool that can be a strong lever in the fight against impunity. It can give hope to victims that they can bring their tormentors to justice.
See this case study for another example of universal jurisdiction as a legal tactic.
