by Dr. Miša Zgonec-Rožej
On Friday, 8 February 2013, Senegal officially inaugurated the Extraordinary African Chambers that has been set up within the Senegalese judicial system to try the former president of Chad, Hissène Habré. Habré is allegedly responsible for international crimes committed during his reign in Chad, including thousands of political killings and systematic torture. Habré, who came to power in 1982, fled to Senegal after being ousted in 1990 by the current president of Chad, Idriss Déby Itno, and has since been living there in exile.
Despite the victims’ attempt to bring Habré to justice, Senegal has continually avoided instituting any criminal proceedings against the former dictator. In July 2012, the International Court of Justice (ICJ) in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) ordered Senegal to submit the case to its competent authorities for the purpose of prosecution, if it did not extradite him to Belgium which has been seeking his extradition since 2005, as required by Article 7(1) of the UN Convention against Torture.
The Extraordinary African Chambers
A month later, on 22 August 2012, Senegal signed an agreement with the African Union on the establishment of a special court. On 17 December 2012, the Senegalese National Assembly adopted the law establishing the Extraordinary African Chambers. The Chambers, which will be funded in large part by the international community, consists of four sections: an investigative section with four Senegalese investigating judges, an indicting chamber of three Senegalese judges, a trial chamber and an appeals chamber, each having two Senegalese judges and president from another country of African Union.
The Chambers’ mandate is to prosecute and try the person (Habré might possibly be the only person put on trial) or persons most responsible for genocide, crimes against humanity, war crimes and torture committed in Chad between 1982 and 1990. While the definition of torture in the Chambers’ Statute has been taken from the UN Convention against Torture, the definitions of genocide, crimes against humanity and war crimes, with some discrepancies, closely track definitions in the Statute of the International Criminal Court. The Chambers will apply Senegalese procedural law.
The Chambers’ Statute contains identical provisions on the modes of responsibility to the Statutes of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda. The Statute of the Chambers rules out any potential claims by Habré to immunity to which former presidents are entitled under international law for acts carried out in their official capacity. The Statute prescribes that the official position of an accused person, whether as Head of State or Government or as a responsible Government official, does not relieve such person of criminal responsibility.
According to the present plans, the pretrial investigation is expected to last 15 months and, if Habré is indicted, it will be followed by a trial in 2014. The highest sentence prescribed in the Chambers’ Statute is life imprisonment. Victims will be able to participate in the proceedings as civil parties, represented by legal counsel. The Statute establishes a victims’ fund that will be funded by reparations ordered by the Chambers and voluntary contribution by states, international institutions, NGOs and private donors. Reparations from the victims’ fund are also available to victims who do not participate in the Habré trial.
Habré’s case, provided that he will stand trial, will mark the first time that the domestic courts of one country have tried the Head of State of another country for alleged international crimes. As a trial of an African leader by an African court in Africa, Habré’s case is a test case which will help assess the capacities of African states to meet their commitments in the field of international criminal justice. The case also shows the importance of the obligation to prosecute or extradite (aut dedere aut judicare) and the principle of universal jurisdiction in the fight against impunity. The nature and the content of the obligation to prosecute or extradite is one of the priority research topics of the International Law Commission.
Habré was first indicted in 2000 by a court in Senegal for international crimes, but the case was dismissed after the court ruled that Senegalese courts lacked jurisdiction to try crimes committed by a foreigner abroad. In 2005, a Belgian court indicted Habré for international crimes and requested, four times, his extradition from Senegal. Senegal has not complied with any of Belgium extradition requests. In 2006, after the African Union called upon Senegal to put Habré on trial, Senegalese law was amended to give the domestic courts extraterritorial jurisdiction over international crimes.
In October 2008, Habré filed an application to the ECOWAS Court of Justice arguing that his trial in Senegal, on the basis of Senegal’s legislative changes, would violate the principle of non-retroactivity of criminal laws. In November 2010, the ECOWAS Court of Justice ruled that, in order to circumvent the principle of non-retroactivity, Habré should be tried before a special ad hoc procedure of an international character. This ruling has been criticized for disregarding the accepted view that the principle of non-retroactivity is not violated by the prosecution of any acts which, at the time of their commission, were already prohibited under international law (see Article 15 of the ICCPR).
In 2009, Belgium instituted proceedings against Senegal before the ICJ alleging that Senegal had failed to uphold its obligations under the UN Convention on Torture to prosecute Habré for international crimes or to extradite him to Belgium to face trial there. In 2011, the African Union’s proposed plan for special chambers within the Senegalese justice system was rejected by Senegal. After the presidential elections in March 2012, the new Senegalese president agreed to prosecute Habré in Senegal rather than extradite him to Belgium. After the ICJ judgment, Senegal resumed negotiations with the African Union, which led to an agreement to create the Extraordinary African Chambers.
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