IV. Legal QuestionsThe prosecution of Hissène Habré raises a number of legal questions: Legal ReformIn order to take account of the Senegalese Cour de Cassation decision of March 20, 2001, criminal charges against Hissène Habré will only be possible after a modification of the Senegalese criminal procedure code. The acts imputed to Hissène Habré directly, as an accomplice, or on the basis of command responsibility, include crimes against humanity and war crimes. These crimes currently do not appear in the Senegalese criminal code and will have to be incorporated in order to allow prosecution on these charges. The Cour de Cassation ruling held that the Senegalese courts did not have competence to try Habré for acts of torture even though the Senegalese criminal code had been modified by law n° 96.15 of August 28, 1996, to include acts of torture. Because article 669 of the code of criminal procedure had not been amended, the judges ruled that “the Senegalese courts are without competence to take up acts of torture committed by a foreigner outside of its territory regardless of the nationality of the victims.”25 Thus, whether for torture or the other crimes discussed above, such as crimes against humanity and war crimes, it will be necessary to amend the code of criminal procedure to permit the bringing of charges against Hissène Habré, a foreigner, for crimes committed outside of Senegal against Senegalese or non-Senegalese. The UN Committee Against Torture and the AU Committee of Eminent African Jurists both found, in the words of the latter, that “[i]t is therefore incumbent on Senegal in accordance with its international obligations, to take steps, not only to adapt its legislation, but also to bring Habré to trial.”26 In November 2006 the Senegalese Council of Ministers adopted draft legislation addressing these questions, but the draft was not taken up by the parliament. The Senegalese parliament, when it reconvenes, will thus have to urgently take up these questions. Maintaining Habré’s Presence in SenegalA requisite for the trial is obviously that Hissène Habré remains in Senegal. Article 6.1 of the Convention against Torture stipulates that “any State Party in whose territory a person alleged to have committed any [acts of torture] is present, shall take him into custody or take other legal measures to ensure his presence.” Senegal has always upheld this obligation. When the UN Committee Against Torture in 2001 called on Senegal to “take all necessary measures to prevent Hissène Habré from leaving the territory of Senegal except pursuant to an extradition demand,” President Wade agreed to hold Habré in Senegal. In November 2005 Senegalese Minister of Foreign Affairs Cheikh Tidiane Gadio declared that Senegal would not take any actions that could allow Habré to escape justice (see above). Nullum crimen, nulla poena sine legeThis is not a case of “retroactive” application of the law. The crimes of which Hissène Habré is accused existed either in customary international law or in treaties ratified by Senegal and Chad at the time the acts were committed. Their incorporation into Senegalese law would not result in the creation of new criminal offenses but in the establishment of national mechanisms to prosecute and punish acts that were already prohibited. The principle “nullum crimen, nulla poena sine lege” (“no crime or penalty without a law”)—that one cannot be penalised for doing something that is not prohibited by law—would thus be respected. Article 15 of the International Covenant on Civil and Political Rights, ratified by Senegal,27 allows the trial and punishment of just this sort of case. It provides:
Ne bis in idemHissène Habré has never been tried or acquitted in Senegal or elsewhere. Complaints were filed against him, an investigation was opened, and he was indicted. The Court of Appeals of Dakar and then the Cour de Cassation of Senegal dismissed the charges on the ground that Senegalese courts did not have the competence to try him. The merits of the charges were never considered.28 Statute of LimitationsThe crimes of which Hissène Habré is accused have no statute of limitations under international law. The AU Committee of Eminent African Jurists considered that “in view of the nature and gravity of the crimes alleged against him, Hissène Habré cannot benefit from any period of limitation (i.e. prescription).”29 In any event, Senegalese law provides a 10-year statute of limitations for crimes such as torture and murder. Under Senegalese law, the statute does not run when prosecution is not possible (as when Hissène Habré was head of state until December 1990),30 and is stopped and begins again when a penal action is commenced (as was done in January 2000).31 The interval was thus less than the 10-year statute of limitations. ImmunityHissène Habré does not benefit from any immunity. In an October 2002 letter to the Belgian judge investigating the charges against Habré, Chad’s justice minister, Djimnain Koudj-Gaou, wrote, “Hissène Habré cannot claim to enjoy any form of immunity from the Chadian authorities.” According to the International Court of Justice, state representatives “cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity.”32 Moreover, the AU Committee of Eminent African Jurists “considered that Hissène Habré cannot shield behind the immunity of a former Head of State to defeat the principle of total rejection of impunity that was adopted by the Assembly [of heads of state in January 2006].”33 Independence of the JudiciaryIt is no secret that Hissène Habré, who is accused by Chad’s truth commission of emptying out his country’s treasury before fleeing, has powerful supporters in Senegal who have tried to influence the course of justice. There have also been allegations of direct interference in the judiciary. In 2000, after a Senegalese court charged Habré with torture and crimes against humanity, the magistrate who had indicted Habré and was pursuing the pretrial investigation was transferred from his post. An appeals judge considering Habré’s motion to dismiss the prosecution was given a promotion while the motion was sub judice. These actions (and the dismissal of the charges) led to a joint appeal by the UN special rapporteurs on the independence of judges and lawyers and on torture, who “expressed their concern to the Government of Senegal over the circumstances surrounding the recent dismissal of charges” and “reminded the Government of Senegal of its obligations under the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment to which it is party.” The Government of Senegal should take the necessary measures to prevent any interference with the judicial proceedings now foreseen. 25 “Les juridictions sénégalaises sont incompétentes pour connaître des actes de torture commis par un étranger en dehors du territoire quelle que soit la nationalité des victimes.” 26 See Report of the Committee of Eminent African Jurists on the Case of Hissène Habré, para. 18. 27 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by Senegal on February 13, 1978. 28 There is a Senegalese case on this point: Arrêt n° 214 du 18 décembre 1984 de la Chambre d’accusation de la Cour d’appel de Dakar sur une demande d’extradition des autorités judiciaires maliennes concernant Mone Antoine dit Abdoulaye Traoré alias Yoda Marcel Martin Fulgence. 29 See Report of the Committee of Eminent African Jurists on the Case of Hissène Habré, para. 14. 30 Article 7 of the criminal procedure code states, “La prescription est suspendue par tout obstacle de droit ou de fait empêchant l'exercice de l'action publique.” 31 Article 7 of the criminal procedure code also states, “En matière de crime, l'action publique se prescrit par dix années révolues à compter du jour où le crime a été commis si dans cet intervalle, il n’a été fait aucun acte d’instruction ou de poursuite. S'il en a été effectué dans cet intervalle, elle ne se prescrit qu'après dix années révolues à compter du dernier acte.” 32 See Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), International Court of Justice, Judgment of 14 February 2002, para. 61. 33 See Report of the Committee of Eminent African Jurists on the Case of Hissène Habré, para. 13. |