Senegal to Send Former Chadian President Habre Back to Chad – in Breach of Assurance to the ICJ.

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According to the BBC:

Former Chadian President Hissene Habre is to be sent home from Senegal to face accusations that he committed atrocities during his eight-year rule.

Senegal said Mr Habre would be flown to Chad on 11 July.

Mr Habre is blamed for killing and torturing tens of thousands of opponents between 1982 and 1990, charges he denies.

Mr Habre – sometimes dubbed “Africa’s Pinochet” – has been living in Dakar since he was ousted.

In a statement, the Chadian government said President Idriss Deby was informed about the decision to return Mr Habre by Senegalese President Abdoulaye Wade.

Dakar separately confirmed this, without providing a reason for its move.

In 2008, Mr Habre was sentenced to death by a court in Chad for planning to overthrow the government.

He was sentenced in absentia along with several rebel leaders, who launched an assault on the Chadian capital, N’Djamena, earlier that year.

This is the latest in the long running saga regarding attempts to prosecute Habre for alleged torture and crimes against humanity committed by him while in power in Chad. After failed initial attempts to prosecute him in Senegal and a request for his extradition to Belgium, the African Union got involved in the matter and requested that Senegal prosecute Habre “on behalf of Africa”. Senegal has since amended its law to allow for this but insisted that the funding for the prosecution come from the international community with the Senegalese President expressing his frustration that the money wasn’t forthcoming. In the meantime, Belgium initiated proceedings before the ICJ arguing that Senegal had failed to comply with its obligations under the Convention Against Torture to prosecute Habre or to extradite him. Belgium also requested provisional measures ordering  Senegal not to permit Habre to depart from that country. However, a further complication was added when the ECOWAS Court of Justice, in a rather strange decision, held, late last year, that Senegal could only try Habre in an ad hoc special tribunal of an inernational character. For more on the background  on the case, see this ASIL Insight and for commentary on the ICJ proceedings, see previous EJIL:Talk! posts here, here and here.  For a comment on the ECOWAS Court judgment,see the ASIL Insight and this post by Prof. Bill Schabas on his blog.

Perhaps Senegal is just frustrated by the whole process, including the involvement of international organizations and international courts, and just wishes to rid itself of the problem. Given the effort of Senegal to amend its law and the saga over funding, one can’t blame Senegal for being frustrated by the decision of the ECOWAS court (which suggests having to start over again). This is a case where an international court has not helped the process. But despite Senegal’s frustration, it will be acting in breach of a solemn commitment it gave to the ICJ during the provisional measures hearing. The main reason why the ICJ declined to indicate provisional measures was because of the assurance that Senegal had given that it would not permit Habre to leave before the Court had given its final decision. In the provisional measures decision, the Court said:

 71. Whereas the Court further notes that Senegal, both proprio motu and in response to a question put by a Member of the Court, gave a formal assurance on several occasions during the hearings that it will not allow Mr. Habré to leave its territory before the Court has given its final decision;

 72. Whereas, as the Court has recalled above, the indication of provisional measures is only justified if there is urgency; whereas the Court, taking note of the assurances given by Senegal, finds that, the risk of irreparable prejudice to the rights claimed by Belgium is not apparent on the date of this Order;

73. Whereas the Court concludes from the foregoing that there does not exist, in the circumstances of the present case, any urgency to justify the indication of provisional measures by the Court;

Provisional measures ordered by the Court are binding but here the Court did not order any provisional measures on account of the assurance. So Senegal will not actually be in breach of an ICJ order. But it is bad form for a State to make such a formal assurance, which induces the Court not to make a formal order, and then for the State to breach its assurance. I’m not sure if there is a breach of a particular principle of international law here but it could be argued that Senegal would not be acting in good faith where it to return Habre to Chad. In any event, Belgium could return to the Court to ask for provisional measures before the transfer takes place. In fact the Court explicitly contemplated this  in para. 75 of the decision:

Whereas the present decision also leaves unaffected Belgium’s right to submit in future a fresh request for the indication of provisional measures, under Article 75, paragraph 3, of the Rules of Court, based on new facts;


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