The recent decision by the Extraordinary African Chambers (ExAC) to authorise the trial of the former President of Chad Hissène Habré on charges of crimes against humanity, war crimes and torture is a fascinating and potentially momentous moment for African criminal justice and human rights.
From the perspective of the African Court on Human and Peoples’ Rights, it brings into sharp relief the pending establishment of the African Court of Justice and Human Rights (ACtJHR) and especially its proposed international criminal law chamber.
As to whether this is a dress rehearsal for the ACtJHR, there are certainly similarities between the ExAC and the ACtJHR. From a practical standpoint, the ExAC is funded and administered in large part by the African Union who will also run the ACtJHR (ExAC Agreement, Article 4). ExAC judges and staff will enjoy privileges and immunities similar to those which UN and AU staff are entitled and which ACtJHR staff will also enjoy, giving the ExAC the feel of an international tribunal (ExAC Agreement, Article 6 & ACtJHR Statute, Article 15). With regards the law, the ExAC has jurisdiction to try cases of genocide, war crimes, crimes against humanity and torture (ExAC Statute, Articles 4, 5, 6, 7, 8). These crimes will also fall within the jurisdiction of the international criminal law chamber of the ACtJHR, although an important distinction should be noted that whilst torture is a crime against humanity and war crime under the ACtJHR Statute, it does not enjoy status as a separate crime as found under the ExAC Statute (Amended ACtJHR Statute, Article 28A & ExAC Statute, Article 8.) .
The two tribunals have a number of other differences too. For example, the ExAC bench will consist of a majority of Senegalese judges. The ExAC will have an international flavour since the President of the Trial and Appeals Chamber will be judges from another AU member state (ExAC Statute, Article 3 (3) & (4)), but its roots are squarely within the Senegalese judiciary. The ACtHJR however will likely have three judges from three different AU countries (Article 10(4) of the ACtJHR Draft Statute does not explicitly state the Judges should be from different countries but consistency with the current African Court on Human and Peoples Rights and other international tribunals would strongly suggest this is a case of vague drafting rather than anything else).
In addition, the ACtJHR will be a permanent court whereas the ExAC has a limited remit. The ACtJHR also has an ambitious roster of 14 crimes within its jurisdiction, whereas the ExAC has just the four mentioned above. The structures of the tribunals also appear slightly different with the international criminal law chamber of the ACtJHR consisting of a pre-trial, trial and appeals chambers (Amended ACtHJR Statute, Article 16(2)) whereas the ExAC consists of pre-trial, indictment, trial and appeals chambers (ExAC Statute, Article 2).
Both the ExAC Statue and Amended ACtJHR Statute contain definitions of the crimes they have in common- genocide, crimes against humanity, war crimes and torture. With regards the definition of genocide, both tribunals have almost identical definitions save for the interesting absence of “acts of rape or any other form of sexual violence” from the ExAC Statute (Amended ACtJHR Statute, Article 28B & ExAC Statute Article 5). Although it should be noted that Habré will not face genocide charges at the ExAC.
As to the definition of crimes against humanity, the ACtJHR Statute is more expansive, including”enterprise” alongside “widespread or systematic attack” to read “widespread systematic attack or enterprise” and adding the requirement of knowledge of the attack or enterprise (Amended ACtJHR Statute, Article 28C). Both include murder, extermination, rape or sexual violence, apartheid, and enslavement as crimes against humanity. The ACtJHR Statute is however more extensive including forcible transfer, enforced disappearance, imprisonment in violation of “fundamental rules of international law”, and other inhumane acts (Amended ACtJHR Statute, Article 28C.1), whilst also providing detailed explanations of most terms found in the Crimes Against Humanity section (Amended ACtJHR Statute, Article 28C.2). The ExAC Statute does however contain elements not found in the ACtJHR Statute including summary executions, kidnapping and enforced disappearance (ExAC Statute, Article 6(f)).
As to war crimes, the ExAC’s jurisdiction is a relatively scaled back list including murder, torture, destruction of property, compelling prisoners of war to serve in armed forces, deprivation of fair trial, unlawful deportation or transfer and taking of hostages and Article 3 violations including violence to life, collective punishments, taking of hostages, terrorism, and pillage. Whilst the ACtJHR Statute contains the above crimes but expands its area of jurisdiction to something similar to that found under Article 8 of the ICC Rome Statute (Amended ACtJHR Statute, Article 28D). As mentioned above, interestingly the ExAC Statute makes torture a separate crime whose definition follows closely that found in Article 1 of the Convention Against Torture (ExAC Statute, Article 8).
(Just as a side note on differences, the vexed question of immunities is not particularly relevant here since Habré is a former head of state and the immunities provision found in Article 46A of the Amended ACtJHR Statute pertains only to serving heads of state or other senior state officials.)
So on balance these two tribunals have some similarities but also significant differences. However the reality is that with the ExAC we have an African Union backed international criminal law chamber containing an international bench trying an accused of crimes against humanity, war crimes and torture in Africa. Given the similarities to what the AU hopes to achieve with the ACtJHR it is difficult to imagine that the Habré trial will not create some sort of precedent, good or bad, for the ACtJHR and will be seen by many as a test case on whether the ACtJHR can succeed.
Of course the ACtJHR is still some ways off, still requiring 15 ratifications to be created and then some time to actually get set up. No doubt there will be difficulties with the ExAC but if ultimately its Habré trial is seen as transparent, compliant with international human rights standards (particularly for the accused) and completed within a reasonable time frame it will serve as a strong and encouraging example to the international community- including perhaps the ICC from whom the AU hope to wrestle some measure of control- that the international criminal law chamber of the ACtJHR is a viable answer to prosecuting international crimes that occur in Africa. As to whether this happens- we have to wait and see.
You can find the ExAC agreement and statute referred to in this post within the Agreement between Senegal and the African Union for the establishment of the ExAC here and the proposed ACtJHR Statute here and June 2014 amended statute here.
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