Prosecuting International Crimes in Africa - PULP - University of ...

192 Chapter 8
International Court of Justice and, therefore, the matter is beyond its
jurisdiction. 37 Even though having Habré tried in Belgium is not
foreseeable at the current time, 38 the proceedings initiated by the Belgian
court of first instance played the role of catalyst in the Habré case in that it
added pressure on the Senegalese authorities. The mention ‘on behalf of
Africa’ in the AU decision requesting Senegal to prosecute Habré could be
interpreted as an expression of the AU’s desire not to see Habré prosecuted
by a western country. However, the fact that the AU mandated Senegal to
prosecute Hissène Habré without providing the necessary funding and
timeline for the trial, raises questions with regards to the AU’s
commitment for the organisation of the trial. To date, the majority of
donors which pledged funding for the trial of Habré in Senegal are from the
western world. This is troubling when one recalls the position
unanimously taken by AU members to see Habré prosecuted by an African
state for Africa.
4 Relevance of the Habré trial in international law
Instead of asserting that the trial of Habré in Senegal is a certainty, this
section tries simply to examine the impact an eventual prosecution in
Senegal would have on international law. If prosecuted by a Senegalese
court, Hissène Habré would become the first former African head of state
to be tried by a foreign domestic court. This section examines the role
played by CAT in the Habré case and the precedent that would be set in
international law should the trial of Habré take place in Senegal.
4.1 CAT and the case of Habré
International law allows states to exercise universal jurisdiction over
international crimes, but it does not compel them to do so in the absence
37 See extract of the decision, http://www.hrw.org/legacy/french/docs/2005/11/26/
chad12091.htm (accessed 4 April 2010). The decision of the Court of Appeals of Dakar
was a voluntary misinterpretation of the Arrest warrant decision because, although the
ICJ seized the opportunity given by the complaint filed by DRC on behalf Mr Yerodia,
to make a pronouncement regarding the immunity of jurisdiction from prosecution that
certain high ranking sitting officials enjoy before the courts of other states, it did not
dwell on the issue of immunity of jurisdiction for former high ranking officials such as
former head of states.
38 On 19 February 2009, Belgium filed a case against Senegal before the ICJ in
compliance with art 30(1) of CAT. Belgium referred to a statement made by the
President of Senegal, Mr Abdoulaye Wade, whereby the latter declared that ‘Senegal
could lift his house arrest if it fails to find the budget which it regards as necessary in
order to hold the trial of Mr. Habré’ and argued that in the event Senegal lifts the house
arrest, it would be easy for Habré to leave Senegalese territory and escape prosecution.
Belgium concluded that this would cause irreparable prejudice to the right conferred on
it by international law to bring criminal proceedings against Habré. See ICJ Case
concerning questions relating to the obligation to prosecute or extradite (Belgium v Senegal)
Request for the indication of provisional measures 28 May 2009 para 13.