September 2, 2013

Statute of the Extraordinary African Chambers within the courts of Senegal created to prosecute international crimes committed in Chad between 7June 1982 and 1 December 1990

(Unofficial translation by Human Rights Watch)

 

Article 1 – Purpose

The purpose of this Statute is to implement the decision of the African Union concerning the Republic of Senegal’s prosecution of international crimes committed in Chad between 7 June 1982 and 1 December 1990, in accordance with Senegal’s international commitments.

 

Article 2 – Establishment of the Extraordinary African Chambers

Extraordinary African Chambers within the courts of the Republic of Senegal are hereby established as follows :

a)    one Investigative Chamber within the Tribunal Régional Hors Classe de Dakar;

b)    one Indicting Chamber within the Dakar Court of Appeals;

c)    one Trial Chamber within the Dakar Court of Appeals; and

d)    one Appeals Chamber attached to the Dakar Court of Appeals.

 

Article 3 - Jurisdiction

1. The Extraordinary African Chambers shall have the power to prosecute and try the person or persons most responsible for crimes and serious violations of international law, customary international law and international conventions ratified by Chad, committed in the territory of Chad during the period from 7 June 1982 to 1 December 1990.

2. The Extraordinary African Chambers may choose to prosecute the most serious crimes within their jurisdiction.

 

Article 4 – Crimes within the jurisdiction of the Extraordinary African Chambers

The Extraordinary African Chambers have jurisdiction in accordance with this Statute with respect to the following crimes:

a)    the crime of genocide;

b)    crimes against humanity;

c)    war crimes; and

d)    torture.

 

Article 5 – Genocide

For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

a)    Killing members of the group;

b)    Causing serious bodily or mental harm to members of the group;

c)    Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d)    Imposing measures intended to prevent births within the group; or

e)    Forcibly transferring children of the group to another group.

 

Article 6 – Crimes Against Humanity

For the purpose of this Statute, “crime against humanity”means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population:

a)    Rape, sexual slavery, enforced prostitution, enforced sterilization, or any other form of sexual violence of comparable gravity;

b)    Murder;

c)    Extermination;

d)    Deportation;

e)    The crime of apartheid;

f)     The enslavement or massive and systematic practice of summary executions, kidnapping of persons followed by their enforced disappearance;

g)    Torture or inhumane acts intentionally causing great suffering or serious injury to body or to physical or mental health, on political, racial, national, ethnic, cultural, religious or gender grounds.


Article 7 – War Crimes

1. For the purpose of this Statute, a war crime means any of the following acts concerning members of the armed forces, prisoners of war, or civilians, or property protected under the provisions of the Geneva Conventions of 12 August 1949:

a)    Murder;

b)    Torture or inhuman treatment, including biological experiments, or wilfully causing great physical or mental suffering;

c)    Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

d)    Compelling a prisoner of war or other protected person to serve in the armed forces  [sic];

e)    Depriving a prisoner of war or other protected person of the rights of fair and regular trial;

f)     Unlawful deportation or transfer or unlawful confinement;

g)    Taking of hostages.

2. The Extraordinary African Chambers shall have jurisdiction to try persons who have committed serious violations of Common Article 3 of the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Armed Conflicts and of the Second Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, of 8 June 1977. These violations include:

a)    Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

b)    Collective punishments;

c)    Taking of hostages;

d)    Acts of terrorism;

e)    Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

f)     Pillage;

g)    The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples;

h)   Threats to commit any of the foregoing acts.

 

Article 8 - Torture

For the purpose of this Statute, the term "torture" shall encompass anyact by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

 

Article 9 – Non-Applicability of Statutory Limitations

The crimes within the jurisdiction of the Extraordinary African Chambers shall not be subject to any statutory limitations.

 

Article 10 – Individual Criminal Responsibility and Irrelevance of Official Capacity

1. The Extraordinary African Chambers shall have jurisdiction over natural persons pursuant to this Statute.

2. A person who committed, ordered, planned or instigated others to commit, or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 5 to 8 of this Statute, shall be individually responsible for the crime, as a principal or accomplice.

3. The official position of an accused, whether as Head of State or Government, or as a responsible government official, shall not relieve him or her of criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

4. The fact that any of the acts referred to in afs 5 to 8 of this Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if the accused knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

5. The fact that an accused acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment.

 

Article 11– Composition of the Extraordinary African Chambers and Nomination of Judges

1. The Extraordinary African Investigative Chamber withinthe Tribunal Régional Hors Classe de Dakar shall be composed of four (4) investigative judges of Senegalese nationality and two (2) alternate investigative judges of Senegalese nationality, who shall be nominated by the Senegalese Minister of Justice and appointed by the Chairperson of the African Union Commission.

2. The Extraordinary African Indicting Chamberwithin the Dakar Court of Appeals shall be composed of three (3) judges of Senegalese nationality and one (1) alternate judge of Senegalese nationality, who shall be nominated  by the Senegalese Minister of Justice and appointed by the Chairperson of the African Union Commission.

3. The Extraordinary African Trial Chamber within the Dakar Court of Appeals shall be composed of one (1) President, two (2) judges of Senegalese nationality and one (1) alternate judge of Senegalese nationality, who shall be nominated  by the Senegalese Minister of Justice and appointed by the Chairperson of the African Union Commission. The President of the Chamber shall be a non-Senegalese judge from another African Union Member State.

4. The Extraordinary African Appeals Chamber shall be composed of one (1) President, two (2) judges of Senegalese nationality and two (2) alternate judges of Senegalese nationals, who shall be nominated  by the Senegalese Minister of Justice and appointed by the Chairperson of the African Union Commission. The President of the Chamber shall be a non-Senegalese judge from another African Union Member State.

5. The judges shall be chosen from among persons of high moral character, impartiality and integrity, and shall have exercised judicial functions for a period of at least ten (10) years. The Presidents of the Extraordinary African Trial and Appeals Chambers shall possess the qualifications required by their respective States for appointment to the highest judicial offices.

 

Article 12 – Office of the Prosecutor

1. The Office of the Prosecutor for the Extraordinary African Chambers shall be represented by the Chief Prosecutor or his or her deputy prosecutors. The Chief Prosecutor and his or her three (3) deputy prosecutors of Senegalese nationality shall be nominated by the Senegalese Minister of Justice and appointed by the Chairperson of the African Union Commission.

2. The Prosecutors shall have high moral character, impartiality and integrity, and shall have at least ten (10) years of professional experience, as well as the requisite experience in conducting investigations and criminal prosecutions. Prosecutors shall be fully independent in the performance of their functions.

3. Except as provided in this Statute, the Office of the Prosecutor shall carry out prosecutions before the Extraordinary African Chambers. The Office of the Prosecutor shall, in this respect, have powers as provided by the Senegalese Code of Criminal Procedure.

 

Article 13 – The Registry

1. The Extraordinary African Chambers shall be assisted by one or several clerks whose duties shall be determined pursuant to the Senegalese Code of Criminal Procedure.

2. The clerks of the Extraordinary African Chambers shall be appointed by the Minister of Justice of Senegal.

 

Article 14 – General Principles of Victims’ Participation as Civil Parties

1.    Civil partiesmay be formed at any stage during the investigative phase by submitting a request in writing to the Registry, either by a victim or his or her beneficiary. The Registry shall submit the request to the relevant Chamber, as well as to the Office of the Prosecutor and to the Defense.

2.    Victims may choose to form groups and may decide to be represented by a joint representative. When the interest of justice so requires, the Extraordinary African Chambers may, where necessary, and with assistance from the Administrator, provide the victims or a group of victims the choice of having one or more joint representatives. The foregoing mandate may be revoked at any time.

3.    If the victims are unable to select one or more joint representatives within the time allotted by the relevant Chamber, the Chamber may request that the Administrator appoint one or several representatives.

4.    If a group of victims does not have the means to pay a join representative, it may request assistance from the Administrator who shall rule on the request.

5.    Subject to the articles of this Statute, the participation of victims shall be governed by the Senegalese Code of Criminal Procedure.

 

Article 15 – Administration of the Extraordinary African Chambers

1. The Minister of Justice of the Republic of Senegal shall appoint the Administrator of the Extraordinary African Chambers. The Administrator shall be responsible for the non-judicial aspects of the administration and the servicing of the Extraordinary African Chambers. Along with the Presidents of the Chambers and the Office of the Prosecutor, the Administrator shall also be responsible for managing the human resources of the Extraordinary African Chambers. In the performance of his or her functions, the Administrator shall be assisted by personnel necessary to the functioning of the Extraordinary African Chambers.

2. The Administrator shall be responsible for the Extraordinary African Chambers’ public relations with the international community, including the Management Committee created pursuant to the Donors’ Round Table Final Document of 24 November 2010.

3. The Administrator may enter into the necessary agreements to carry out outreach program activities and to raise public awareness regarding the Extraordinary African Chambers’ work, both in Africa and internationally.

4. The Administrator shall be responsible for directing and assisting, in the appropriate manner, the witnesses and victims who appear before the Extraordinary African Chambers as well as other individuals who may be put at risk or danger by the testimony of such witnesses, in addition to providing for  the necessary measures and arrangements to ensure their protection and security. In this regard, the Administrator shall coordinate accordingly with the governments of Chad, Senegal, and other interested States.

6. The Administrator shall assist in establishing a judicial cooperation mechanism between Senegal and other States.

 

Article 16 –Applicable Law

1. The Extraordinary African Chambers shall apply this Statute.

2. For those cases not provided for in this Statute, the Chambers shall apply Senegalese law.

 

Article 17 – Procedure and Initiation of Prosecutions

1. The Extraordinary African Chambers shall apply, in the first place, this Statute, and, for those cases not provided for in this Statute, the Code of Senegalese Criminal Procedure.

2. The crimes referred to in articles 5 to 8 of this Statute shall not be subject to a mediation procedure.

3. The Office of the Prosecutor for the Extraordinary African Chambers shall be the only body that may initiate prosecutions.

4. The Prosecutor may initiate investigations prioprio motu or on the basis of information obtained from any source, particularly from governments, international organizations and non-governmental organizations, or on the basis of complaints filed by victims notwithstanding their place of domicile.

 

Article 18 – Investigations and Prior Judicial Proceedings

1. The Extraordinary African Chambers shall make all arrangements for judicial cooperation generally, and where necessary, for the reception and use of results of investigations carried out by the judicial authorities of other States into the crimes which are the subject matter of this Statute.

2. They may request the transfer of any criminal prosecutions and in this context may validate the statements and any piece of evidence established by the competent authorities of the requested state.

 

Article 19 Ne bis in idem

1. Exceptas provided in this Statute, no person shall be tried before the Extraordinary African Chambers with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Chambers.

2. No person shall be tried by another court for the crimes referred to in articles 5 to 8 for which that person has already been convicted or acquitted by the Extraordinary African Chambers.

3. No person who has been tried by another court for conduct also proscribed under articles 5, 6, 7, or 8 shall be tried before the Extraordinary African Chambers with respect to the same conduct  unless the proceedings in the other court:

a)    Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Extraordinary African Chambers; or

b)    Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

 

Article 20 Amnesty

An amnesty granted to any person falling within the jurisdiction of the Extraordinary African Chambers with respect to the crimes referred to in articles 5 to 8 of this Statute shall not be a bar to prosecution.

 

Article 21 – Rights of the Accused

1.    All persons shall be equal before the Extraordinary African Chambers.

2.    The accused shall be entitled to a fair and public hearing, subject to measures ordered by the Extraordinary African Chambers for the protection of victims and witnesses.

3.    The accused shall be presumed innocent until proven guilty according to the provisions of the present Statute.

4.    In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees:

(a) To be informed promptly and in detail in a language which the accused fully understands of the nature, and content of the charge, in a language which the accused  understands ;  

(b) To have adequate time and facilities for the preparation of his or her defense and to communicate freely with counsel of his or her own choosing;

(c) To be tried without undue delay;

(d) To be present at the trial, and to conduct the defence in person or through legal assistance of the accused's choosing; to be informed, if the accused does not have legal assistance, of this right; and to have legal assistance assigned in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her;

(f) To have, free of any cost, the assistance of an interpreter if the accused cannot understand the language used in the Extraordinary African Chambers;

(g) Not to be compelled to testify or to confess guilt.

 

Article 22 – Hearings

Hearings shall be held in public and questions concerning the manner in which they are carried out shall be governed by the Senegalese Code of Criminal Procedure.

 

Article 23 Sentencing

1. The Extraordinary African Trial Chamber shall impose sentences, penalties and sanctions with respect to persons convicted of serious violations of human rights, international law and customary international law.

2. The sentence shall be pronounced in public by a majority of judges of the Extraordinary African Trial Chamber. The sentence shall be in writing and shall state the reasons on which it is based.

 

Article 24 – Applicable Penalties

1. The Extraordinary African Chambers may impose one of the following penalties on a person convicted of a crime under articles 5 to 8 of this Statute:

a)    Imprisonment for a maximum of 30 years; or

b)    A term of life imprisonment, when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.

2. In addition to imprisonment, the Extraordinary African Chambers may order:

a)    A fine under the criteria provided for in Senegalese law;

b)    A forfeiture of proceeds, property and assets derived directly or indirectly from the crime, without prejudice to the rights of third parties acting in good faith.

 

Article 25 – Proceedings on Appeal

1. The Extraordinary African Appeals Chamber shall hear appeals from persons convicted by the Trial Chamber, from the Prosecutor, or civil parties with respect to their civil interests, on the following grounds:

a)    Procedural error;

b)    An error concerning a material question of law invalidating the decision ; including an error related to the Chambers’ exercise of jurisdiction;

c)    An error of fact which has occasioned a miscarriage of justice.

2. The Extraordinary African Appeal Chamber may, on a case-by-case basis, affirm, reverse or revise the decisions taken by the Extraordinary African Trial Chamber.

3. The judges of the Extraordinary African Appeals Chamber may draw upon the jurisprudence of international criminal courts and tribunals.

4. The judgments rendered by the Extraordinary African Appeals Chamber shall be final and unappealable to anybody, however exceptional.

 

Article 26 – Measures for Provisional Detention and Enforcement of Sentences

1. All measures of provisional detention and imprisonment ordered by the Extraordinary African Chambers prior to the judgment shall be served in Senegalese penitentiaries and shall be carried out in accordance with applicable Senegalese law.

2. All prison sentences shall be served in accordance with international standards. If the circumstances so require, the convicted person may serve his or her prison sentence in one of the African Union member States with which Senegal has entered into an agreement concerning the execution of prison sentences.

3. All detention conditions, whether in Senegal or in another cooperating African Union Member State shall be governed by the law of the cooperating State and shall be in conformity with international standards. The cooperating State is bound to comply with length of the sentence.  

4. The national courts shall be in charge of all procedures, in particular those related to detention, which may arise after the dissolution of the Extraordinary African Chambers.

5.  The relevant national authorities shall be responsible for enforcing fines and measures related to the forfeiture of assets and property ordered by the Extraordinary African Chambers pursuant to Article 22 [sic - should be 24] of this Statute, and in accordance with the laws of the State where the property and assets are located.

 

Article 27 – Reparations

1. The reparations measures awarded by the Extraordinary African Chambers are restitution, compensation and rehabilitation.

2. The Extraordinary African Chambers may order that a reparations award for compensation be made by the intermediary of the Trust Fund as provided for in Article 28 of this Statute.

3. Before making an order pursuant to the present Article, the Extraordinary African Chambers may invite observations from or on behalf of the convicted person, victims, and other interested persons or States.

4. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.

 

Article 28 – Trust Fund for the Victims

1. A Trust Fund shall be established for the benefit of victims of crimes within the jurisdiction of the Extraordinary African Chambers, and of the beneficiaries of such victims. The Trust Fund shall be financed by voluntary contributions from foreign governments, international institutions, non-governmental organizations and other entities wishing to support the victims.

2. Reparations shall be open to all victims, individually or collectively, whether or not they participated in the proceedings before the Extraordinary African Chambers.

 

Article 29 –  Privileges and Immunities

1. Foreign judges, as well as members of their family household, shall enjoy the privileges and immunities, exemptions and facilities, including all those financial, accorded to diplomatic agents in accordance with the 1961 Vienna Convention on Diplomatic Relations. Such officials shall enjoy exemption from taxation in Senegal on their salary, emoluments and allowances.

2. Senegalese Judges, Prosecutors, Clerks, and Administrator, as well as other Senegalese personnel of the Extraordinary African Chambers shall enjoy, in accordance with the General Convention on the Privileges and Immunities of the Organization of African Unity (OAU), the following privileges and immunities:

a)      Immunity from criminal and civil prosecution for all acts (including those words spoken or written) performed in their official capacity. This immunity shall also apply after they have vacated their official functions within the Extraordinary African Chambers.

b)      Exemption from taxation on salary, emoluments and allowancesthat they receive throughout the course of their involvement in the Extraordinary African Chambers.

 

Article 30   Working Language

The working language of the Extraordinary African Chambers shall be French.

 

Article 31 – Practical Arrangements

1.  The setting up of the Extraordinary African Chambers shall occur chronologically, in the following order:

a)    The Prosecutors and Assistant Prosecutors, the Judges of the Extraordinary African Indicting Chamber, and the Clerks of the Court shall be nominated during the first phase of the creation of the Extraordinary African Chambers.

b)    In the investigative phase, the judges of the Extraordinary African Indicting Chambers shall convene and shall rule on all appeals which will have been lodged pursuant to the Senegalese Code of Criminal Procedure. All decisions rendered by the Extraordinary African Indicting Chambershall be final and unappealable.

c)    Judges of the Extraordinary African Trial Chamber(Cour d’Assises) shall take permanent office when the investigation phase has been completed. Judges of the Extraordinary African Appeals Chamber shall take permanent office when and if an appeal has been lodged against the decision rendered in the first instance by the Extraordinary African Trial Chamber.

2. Terms of the judges shall expire when their respective phases have terminated.

 

Article 32 Budget

1. The setting up and functioning of the Extraordinary African Chambers shall be financed in accordance with the budget approved by the Donors’ Round Table held on 24 November 2010.

2. If necessary, additional funds and financial resources may be mobilized at a suitable time.

 

Article 33 – Access to the Trial

All reasonable measures shall be taken to guarantee trial access to all concerned parties as well as to press representatives, international and African Union observers, and representatives of civil society.

 

Article 34 – Protections of Parties and Witnesses

The government of Senegal shall ensure, within its territory, the protection of all parties and witnesses to the trial for the entire duration of the proceedings.

 

Article 35 – Protection of Witnesses and Experts

The protection of witnesses and experts for acts performed during the course of proceedings before the Extraordinary African Chambers shall be governed by the Agreement concerning the creation of the Extraordinary African Chambers, entered into by the African Union and the Government of the Republic of Senegal.

 

Article 36 – Recording of Hearings

The proceedings of the Extraordinary African Chambers shall be filmed and recorded, under the supervision of the Chief Prosecutor, for broadcasting purposes, except as necessary for the protection of witnesses or other participants.

 

Article 37 – Duration of the Existence of the Extraordinary African Chambers

1. The Extraordinary African Chambers shall be dissolved in their own right once all judgments are final.

2. Once the Extraordinary African Chambers have been dissolved, all records and case files shall be archived with the Registry of the Court of Appeal of Dakar.

3. The ordinary national courts shall supervise any proceedings, including those relating to detention, which may arisesubsequent to the dissolution of the Extraordinary African Chambers.