The Habré Trial and the Norms of African Sovereign Immunity "Hybrid Justice for Heads of State"

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).

(Photo: Jean-Louis Atlan / Sygma / Corbis)

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?