Senegal’s African Justice: The Extraordinary African Chambers and the ICC

[caption id="attachment_12936" align="aligncenter" width="600"] The National Assembly in Dakar. Senegal's government has a long history of international engagement, including with the ICC. IMF Staff Photograph/Stephen Jaffe, via Flickr. Creative Commons.[/caption]

In October 2016, Burundi announced its decision to withdraw from the International Criminal Court (ICC), followed swiftly by South Africa and the Gambia (though the Gambia's new president has reversed that decision). The idea of African countries withdrawing from the ICC has been floated since 2013, when Kenya's parliament voted in favor of the country's withdrawal in response to a warrant levied against President Uhuru Kenyatta, though Kenya has not yet taken further steps. These three withdrawals provoked fear of a coming "mass African exodus" from the ICC, fears that may have now materialized in a recent announcement of mass intent to withdraw at the January 2017 African Union (AU) summit.

The argument in favor of withdrawal has been characterized by a consistent theme since then: that the ICC is a Western institution which has disproportionately charged African heads of state and refuses to hold Western leaders accountable. The opposing argument, from those in favor of remaining members of the ICC, has emphasized that the ICC is a symbol of international justice, and abandoning an international court demonstrates a blatant disregard for accountability, good governance, and human rights.

The success of the Extraordinary African Chambers, however, means that it has been held up as an example of what an alternative to the ICC might look like. Five months before Burundi's exit, the Extraordinary African Chambers, located in Dakar, Senegal, tried and convicted former Chadian president Hissène Habré for charges of torture, crimes against humanity, and "barbaric acts" which took place during his presidency in the 1980s. He was sentenced to life in prison, a verdict which marked the end of a decade-and- a-half long process to, for the first time, convict an African head of state in an African court.

The international community celebrated the decision as a significant step towards accountability for African dictators and despots. Drawing on this praise, Nkosazana Dlamini-Zuma, the former chair of the African Union, has suggested that the success of the Extraordinary African Chambers is proof that African countries can properly dispense justice without the ICC, a stance repeated by African Union officials, responding to questions about the recent call for a collective withdrawal from the ICC.

Given the prospect of an African withdrawal from the ICC, and the way that the Extraordinary African Chambers have been held up as an alternative, Senegal holds a key position. The host of the Extraordinary African Chambers, Senegal is also represented at the top of ICC leadership and has a long history of international engagement. Despite the rhetoric about the Chambers from those pushing to leave the ICC, Senegal has signaled its support for the Court, and that it sees the existence of the Chambers as complementary to the country's continued membership within the ICC and to its larger history of international engagement.

Senegal: A History of Engagement on the International Stage

Senegal's commitment to international engagement began with its independence from France. Its first president, Léopold Sédar Senghor, believed that a policy of maintaining close ties with the West could exist alongside an African identity, rather than running counter to it. He was instrumental in fostering Senegal's close relationship with France and with other former French colonies in supporting the creation of the Organisation Internationale de la Francophonie, an association of the French-speaking countries of the world, in 1970.

Following Senghor's resignation, Abdou Diouf continued Senghor's legacy of international engagement. He was Chairman of the Organization of African Unity, the precursor to today's AU, from 1985 to 1986 and again from 1992 to 1993, one of only three leaders to be elected to the position twice. In February 1999, towards the end of Diouf's presidency, Senegal became the first state in the world to ratify the Rome Statute, the treaty establishing the Court. He was also elected Secretary General of La Francophonie in 2003, serving until 2014.

Diouf's successor Abdoulaye Wade brokered talks between Chad and Sudan in 2008, and spearheaded one of the two development plans that would merge to become the New Partnership for Africa's Development (NEPAD).

Since assuming office in April 2012, current president Macky Sall has demonstrated a stronger interest in maintaining African connections to international systems than his predecessors. In July 2012, the UN's International Court of Justice ruled that Senegal had violated its duties under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by refusing to extradite Habré to Belgium. Almost immediately, Sall resumed negotiations with the AU over the case where Wade had let them lie fallow, resulting in the Extraordinary African Chambers's inauguration in February of 2013. In February 2016, Sall led a delegation to mediate the constitutional crisis in Burundi. NEPAD contains a mechanism to review African states for good governance, and Sall submitted Senegal for review in early 2016. At the most recent AU summits in July 2016 and January 2017, Senegal joined a few other states in loudly resisting the idea of African withdrawal from the ICC.

The Extraordinary African Chambers vs. the ICC

The ICC could not try Habré because the Rome Statute dictates that the court only has jurisdiction over crimes committed after its establishment in 2002, and Habré's crimes occurred between 1982 and 1990. This necessitated the creation of the Extraordinary African Chambers.

The courts were established in Senegal only because Habré happened to be in exile there, though Senegal was also a natural choice given its tradition of supporting international justice and accountability.

In the controversy about the ICC, Senegal had two options:

1. Promote the Extraordinary African Chambers as a viable African alternative to the ICC, in doing so supporting the three countries' withdrawals; or
2. Promote the Extraordinary African Chambers as part of the type of justice the ICC wants to promote, in doing so criticizing the three countries' withdrawals.

Senegal ultimately chose the second, to support the ICC. On July 20, 2015, President Sall organized a conference called "Sovereignty of States and International Criminal Justice," during which he met with ICC president Judge Silvia Fernández de Gurmendi and Prosecutor Fatou Bensouda, and reaffirmed to both his support for the court. In reaction to the recent AU declaration of intent to withdraw, Dakar holds that the AU is not signatory to the Rome Statute, and therefore cannot advance and defend a position on this issue.

Senegal had good incentives to choose the latter, and not to buck the ICC. Senegal's justice minister, Sidiki Kaba, has been President of the Assembly of State Parties to the ICC since December 2014, the first African to hold this three-year position. He was elected based on his long career in human rights activism. Critically, he participated in the 1998 negotiations of the Rome Statute, and then implemented numerous campaigns to promote the ratification of the Statute by Senegal and many other African countries. Given Kenya's vote to withdraw, Kaba's election could have been read as an attempt to maintain African support for the court. Whatever the motivation, Kaba has interpreted his responsibility this way; he is very outspoken, urging South Africa to reconsider its announcement to withdraw.

Justice Has Many Prongs

Senegal's long tradition of international engagement has demonstrated that international and African justice might be approached in concert, not in conflict, and that an Extraordinary African Chambers could exist alongside the ICC, rather than serving as a check on its influence. In a 2014 interview with The Guardian, Sall declined to criticize the ICC and also underscored the responsibility African governments must take in bolstering their own judicial systems. Given Senegal's vocal position on maintaining the ICC, Sall may well have been surprised when his African counterparts began to use his country's special court as proof that Africa does not need international justice.

Senegal's Abdoulaye Bathily was one of the top contenders for the AU Commission chair. If Senegal had won, Bathily might have approached the ICC differently than Dlamini-Zuma and tried to foster more engagement between the AU and other international organizations like the UN. Instead, in a twist of irony, the next AU chair hails from Chad, the home country of Hissène Habré (though it's worth noting Chad has sought to prosecute Habré).

The debate around separation from the ICC is another manifestation of deeper and longer-running tensions between international cooperation and individual and regional sovereignty. Invoking the Extraordinary African Chambers pins Senegal squarely in the middle of this debate. Given this, Senegal is uniquely positioned to advance the notion that institutions developed in Europe and those developed in Africa can work together for a vision of justice that works for everyone.

Jordyn Iger was an intern with the Wilson Center Africa Program. She will be starting service with the Peace Corps in Senegal in 2017.