Erga Omnes

Universal jurisdiction took center stage last week at The Hague, as the contentious case between Belgium and Senegal opened before the International Court of Justice, raising key questions:

Does a general (i.e., non-treaty-based) obligation to ‘prosecute or extradite’ exist in international law?  And has the Senegalese government violated international customary law in its adamant refusal to extradite former Chadian ruler Hissène Habré, who took refuge in Dakar over 20 years ago and is charged with egregious human rights crimes?

The case is loaded with symbolic value.  Habré has commonly been referred to as “Africa’s Pinochet,” another high-profile former dictator being sought by European courts on the basis of universal jurisdiction.  And in the current historical moment, when early post-Pinochet legal ambitions have been scaled back (including in Belgium), proponents and critics of universal jurisdiction are looking to the ICJ’s judgment for support.

The debate over whether an obligation to prosecute or extradite exists, important as it is, obscures alternatives:  once someone is indicted for an international crime, based on substantiated social claims, what exactly is supposed to happen absent prosecution or extradition?  We shouldn’t fool ourselves:  most often, the failure to prosecute amounts to official forgetting.

The case before the ICJ is intriguing in part because various alternatives for prosecution were defined, including regional options supported by both the African Union and international donors, which would bypass more controversial extradition to a Western capital.  And yet Senegal’s leaders resisted.

On some level, Senegal’s refusal to extradite seems rooted in everyday politics, close to the ground and bureaucratic—caught up in personal loyalties and survival strategies.  These ordinary exchanges can matter as much if not more than the “high politics” of foreign relations or grand statements about state sovereignty and the primacy of peace.

If Senegal’s resistance to prosecute or extradite Habré reflects the mundane circumstances of harboring him for decades, how can we expect Chadians demanding justice to walk away from their memories of atrocity?