Universal Jurisdiction and the Extraordinary African Chambers in the Senegalese Judicial System: Towards a Replicable Enforcement Model?

Abstract

On 22 August 2012, the Republic of Senegal and the African Union agreed to create the Extraordinary African Chambers (EACs) within the Senegalese judicial system. The Chambers’ mission would be to try Hissène Habré for international crimes he had allegedly committed while he was President of the Republic of Chad (1982–1990). The Agreement recognised that even before its conclusion, Senegal enjoyed jurisdiction to try Habré and was even obliged to do so – unless it extradites him -. Senegal’s jurisdiction was based on the universality principle. The success of the trial – i.e. the conclusion of the criminal aspect of the proceedings – has brought some stakeholders to think and declare that a new enforcement mechanism of universal jurisdiction had been found. They argued that it could be generalised. This article questions that view. It first recalls the context in which the Chambers were created. The purpose is to demonstrate that their setting up resulted from a historical accident rather than a well thought out policy. The essential element of that context is the controversial judgment of the Court of Justice of the Economic Community of Western African States (ECOWAS). The article then undertakes a detailed presentation of the Chambers as a judicial institution, emphasising their composition. It finds out that the rationale behind the hybridity was the mere concern to comply with the judgment of the ECOWAS Court. At no point was the discussion about pursuing hybridity for its (alleged) intrinsic advantages. Lastly, the article balances the possible value-added of an EACs-like formula against the risks it presents when it comes to the enforcement of universal jurisdiction. It finds out that while the formula has no apparent advantages, there are risks attached to it. The most important of these is that it would decrease the likelihood of trials based on the universality principle in Africa.