By Patrick Wegner
December 18, 2011
When we talk about justice in conflicts there is a potentially unlimited array of transitional justice mechanisms that could be brought to use in order to deal with atrocities committed during armed conflict. The first measures that come to mind are the ‘trinity’ of transitional justice: trials, truth commissions and amnesties. But there is a lot more to transitional justice. Mechanisms range from compensation over traditional reconciliation ceremonies to different forms of memorialisation in museums, through monuments, or even graffiti. But even among the best known mechanisms there are some variations that are not very well known and have received less attention. One of them is the possibility to pursue international trials of war criminals in third states, based on universal jurisdiction.
The idea of universal jurisdiction is grounded in the notion that there are some norms in public international law which are important enough to bind everyone (jus cogens) and the violation of which is considered a crime against everyone. These so called erga omnes norms include, for example, genocide, slavery, torture and racial discrimination. The most famous case pursued on the principle of universal jurisdiction was the indictment of the former Chilean dictator Pinochet for serious human rights violations committed during his regime. The indictment was issued by the Spanish magistrate Baltasar Garzón and Pinochet was arrested in London despite his immunity as a senator-for-life in Chile. Pinochet’s extradition to Spain was finally turned down by the British House of Lords on health grounds, but still, the case carried a huge symbolical message that those responsible for human rights violations are in danger of being pursued by third states at any time.
The former Chilean Dictator Pinochet only escaped international justice thanks to his bad health (ElPais)
Broad national provisions on universal jurisdiction in countries like Belgium and Spain quickly led to a wave of complaints against US and Israeli officials for alleged violations of erga omnes norms, e.g. in Guantanamo Bay or during ‘Operation Cast Lead’ by the Israeli Army. The diplomatic repercussions of these investigations led Spain and Belgium to limit the possibilities of pursuing cases based on universal jurisdiction in national courts. Even though the reach of universal jurisdiction has now been limited in many places, it still remains relevant in a number of cases. Germany has issued a law on international criminal law (Völkerstrafgesetzbuch) and is currently prosecuting the political leadership of militias in the Democratic Republic of Congo that have been living in exile in Germany. Another interesting case is the attempt to prosecute the former President of Chad, Hissene Habré, for crimes committed during his regime.
One of the key figures behind these efforts is the Chadian human rights lawyer Jacqueline Moudeina, who received the 2011 Right Livelihood Award, also known as the Alternative Peace Nobel Price. Moudeina has been fighting for a trial for Habré for over a decade. The idea behind these efforts was to make the example of the Pinochet case universal by prosecuting an African dictator in a third country in Africa. In the beginning the attempts focused on indicting Habré in his current country of exile, Senegal.
These efforts met a dead end due to the political intervention by Senegal’s President Wade which led to the court in Senegal declaring itself as not competent. In the next step Moudeina and her partners (including Human Rights Watch) tried to indict Habré in Belgium. During that time Belgium was already trying to limit the cases based on universal jurisdiction in its courts due to diplomatic implications. But since naturalized Belgian citizens of Chadian origins were among the victims, the investigations were allowed to proceed. Belgium finally asked for Habré’s extradition in 2005.
Senegal’s Wade refused to extradite Habré, however, and asked the African Union to take up the case. At the current stage, the AU has brought in Rwanda as a country that could potentially prosecute Habré for crimes committed during his regime. Yet, Moudeina has made it clear that this is a largely political maneuver. Rwandan officials have told her that they have no intrinsic motivation to prosecute Habré.
While the current Chadian President Déby viewed an extradition of Habré to Chad as a favorable option in July 2011, he has not taken up the topic again after the AU decision to involve Rwanda. At the current stage Belgium is not able to enforce an extradition of Habré, Chad is not making any move to ensure an extradition and trial of Habré in his home country, and Rwanda is less than enthusiastic about trying Habré, as suggested by the AU.
The Habré case is a perfect example for the dilemmas involved in pursuing justice based on universal jurisdiction. If Habré would be tried in Belgium, the trial would be far removed from the realities on the ground in Africa. A meaningful participation of his victims in Chad is difficult to implement in such a case. Additionally, the fact that a Western country is prosecuting a former African head of state feeds into allegations brought forward by the AU that the West is using international criminal law to target African states. On the other hand there seems to be no real African drive for prosecuting Habré in Africa.
Should the world and the victims wait until Africa has figured out how to deal with the case of Habré? Or is it preferable to move on with a trial in Belgium even though it would be far removed from the realities on the ground and would enforce allegations of neo-colonialism? Moudeina’s position is that justice delayed is justice denied. She is fighting for a trial of Habré in Belgium, as there seem to be no realistic possibilities of an African trial in the near future.