Senegal: Extradition of former Chadian president Hissene Habre

The international press has widely covered the refusal of Senegal to extradite the former president of Chad, Hissene Habre, to Chad for an indictment of crimes against humanity, war crimes, and torture.  In 2008, Habre was sentenced to death in abstentia by a court in Chad, for his role in presiding over 40,000 political murders and widespread torture.  A Belgian court issued an international arrest warrant and requested his extradition in 2005, but the Senegalese Court of Appeal found that it had no jurisdiction to order compliance with the extradition request.  Senegal is required by the Convention Against Torture to try Habre, but Senegal's own constitution does not permit retroactive application of criminal law, and until recently the Senegalese judiciary did not have jurisdiction to try war crimes, crimes against humanity, and torture.

The Institute for Security Studies in Pretoria published an interesting piece arguing that the failure to extradite Habre for war crimes denies justice to his victims and gives him impunity.  A press release by Amnesty International condemns the extradition because of a the death sentence arising from a trial in abstentia (which does not accord with international norms for capital trials).  Like the Institute for Security Studies, Amnesty has called for Senegal to try Habre instead.  The UN High Commissioner for Human Rights Navi Pillay has also condemned Senegal for attempting to deliver Hissene Habre to the government of current Chadian president Idriss Deby, whose government had sentenced Habre to death.

This is a hard case, and one that may not have a satisfactory conclusion.  In one respect, Senegal should follow the emerging trend of not extraditing defendants who face death sentences.  There is cause for concern that Habre's trial in Chad did not comport with international standards and had political overtones.  On the other hand, Senegal did not have a legal mechanism to prosecute war crimes or crimes against humanity until 2008, and the Senegalese constitution prohibits retroactive application of criminal laws.  Short of a constitutional amendment, trying Habre in Senegal for crimes committed in Chad two decades before may not be possible.