Originally published on Justice in Conflict as part of the Hybrid Justice – A Justice in Conflict Symposium series.

How have hybrid courts dealt with the question of head of state immunity and how might they in the future? In this latest contribution in our ongoing symposium on Hybrid Justice, Kerstin Carlson joins JiC to explore these questions in the context of the trial of Hissène Habré and its aftermath. Kerstin is an Associate Professor in the Department of Law at the University of Southern Denmark. She is also affiliated with The American University of Paris and iCourts at the University of Copenhagen. She is the author of Model(ing) Justice: Perfecting the Promise of International Criminal Law (Cambridge University Press, forthcoming 2018).

There is an ongoing disagreement in international criminal law regarding sovereign immunity. International humanitarian law takes the possibility of challenging impunity as a central element of its mandate, in part because of the fundamental norm of rule of law practice that none is above the law and in part because leaders are those who arguably bear the greatest responsibility for the types of collective harms international humanitarian law would criminalize. Thus international criminal law as practiced by ad hoc tribunals and the International Criminal Court promises that sovereigns are not immune from prosecution for atrocity crimes, and suggests that violations of international humanitarian law by those in positions of power are more worthy of prosecution that the infractions of low level offenders. This norm does not distinguish between sitting and former heads of state.

At the same time, there has been significant pushback, especially across Africa, over the prosecution of sitting leaders. This pushback has arisen in many forms, with perhaps the most public being the refusal of South Africa and others to comply with the ICC’s open arrest warrant against Sudan’s president Al-Bashir. More subtle, but no less significant, are examples such as amendments to the Malabo Protocol, the guiding document of the African Union’s proposed African Court of Justice and Human Rights, which explicitly grant sitting heads of state immunity from prosecution (but also references norms that would limit sovereigns to two terms in office, thereby in principle making them available for prosecution when they leave office). While this court is far from the 15 ratifications required to make it operational, Kenya has promised to join Uganda and ratify the proposed court by March 15 2018.

In this contested environment, the recent prosecution and conviction of former Chadian head of state Hissène Habré by an ad hoc, hybrid tribunal in Senegal was momentous. The Chambres Africaines Extraordinaires (CAE), a cooperative effort supported by western governments, the African Union, Chad and Senegal, was a temporary tribunal nestled in Senegal’s local juridical architecture that applied international criminal law to try Habré. The outcome of a 25-year saga by Chadian victims groups and international NGOs to bring Habré to justice, the CAE was novel in several ways. It was the first court set up in one country to try the leader of another, and the first African application of universal jurisdiction, a doctrine enabling any judge in any court to consider commissions of internationally recognized crimes. Despite these characteristics, the CAE’s greatest claim seems to be that it is an African institution that successfully prosecuted and convicted a former head of state. Other such attempts have always been the purview of internationally governed institutions such as the Special Court for Sierra Leone or the International Criminal Court.

The experience of the Habré process leads to the question: what does the trial of the former Chadian President tell us about current resistance to sovereign impunity on the African continent? 

The answer is not entirely clear. Hissène Habré fled Chad for Dakar in 1990, ousted from power by collaborator-turned-rival Idriss Dèby. From the very beginning of his reign, Déby sought to punish Habré for crimes committed during his regime, although many of these crimes involve actions in which Déby was involved in a leadership role, raising questions of his own criminal responsibility. Déby’s long-voiced desire for “justice,” a quest that is headlined by his pursuit of Habré, has lost whatever veneer of credibility it might once have had. Over the 28 years Déby has remained in office refusing to cede power, he has amassed a personal fortune that ranks him as Africa’s 9^th richest president, although Chad is still one of the world’s poorest countries. Déby governs much as Habré did, including using many of the same individuals as secret police. During the Habré investigation, as the inquiries related to Habré’s trial pushed deeper towards Chad’s present power structure, Déby ceased cooperating, cancelling a fifth investigative trip to the country. Moreover, after the CAE became operational, Chad staged a series of trials of Habré-era collaborators, including three who were sought by the CAE: Mahamat Djibrine “El Djonto”, Saleh Younouss and Zakaria Berdei. Although convicted by the Chadian court, their trial rendered these defendants out of reach to the CAE, and thus is credibly understood as a challenge and not a collaboration with rendering justice. Concerns remain that these defendants will simply be released now that the Habré process has been concluded.

The Senegalese judicial apparatus orchestrated impressive achievements in trying the former leader; Habré was apprehended, tried, and sentenced without major incident, with no dead or suddenly and inexplicably recanting witnesses. He is presently serving a life sentence (albeit under a regime rather infamous for its capacity to grant pardons). Yet given that Habré ultimately sat in the dock alone, without his co-indictees and without implicating Chad’s current president-for-life Idriss Déby, there is little to suggest that the Habré experience would be repeatable, in Senegal or elsewhere, against a leader with more live political clout. There has been no change in attitude with regards to pushing for Head of State immunity at the ICC or under Malabo. Moreover, many heads of state with similar records aren’t facing prosecution. Thus the Habré trial must be seen as inconclusive with regards the current status of sovereign impunity in Africa.

One bright spot on the horizon, however, may be found in Senegal’s neighbor, The Gambia, where the repressive strongman Yahya Jammeh, was recently ousted from power. Speaking at a conference revisiting the Habré trial in Dakar last month, Gambian Minister of Justice, Abubacarr M. Tambadou, praised the CAE’s work in terms of its challenge to sovereign immunity as “laudable”, and said that The Gambia hoped to follow Senegal, Rwanda, and Sierra Leone in prosecuting leaders who violate human rights. At present, Gambian efforts consist of a truth and reconciliation commission to consider Jammeh’s abuses. The future will show how deeply such efforts effectuate meaningful structural reform, a central goal of removing sovereign immunity from prosecution.