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Background

The Alleged Crimes of Hissène Habré

Hissène Habré ruled Chad from 1982 until 1990, when he was deposed by current President Idriss Déby Itno. His one-party government was marked by widespread atrocities. Mr. Habré periodically targeted various ethnic groups such as the Sara (1983-84), Chadian Arabs, the Hadjerai (1987), and the Zaghawa (1989-90), killing and arresting group members en masse when he believed that their leaders posed a threat to his regime. The exact number of Mr. Habré’s victims is not known. A 1992 Chadian government truth commission accused Mr. Habré’s regime of some forty thousand political murders and systematic torture.¹ These acts were not connected to Chad’s armed conflict with Libya. Most predations were carried out by Mr. Habré’s political police, the Documentation and Security Directorate (DDS), whose directors all came from Mr. Habré’s small Gorane ethnic group and which reported directly to Mr. Habré. Torture was a common practice in the DDS detention centers. Among the most common forms of torture was arbatachar binding in which a prisoner’s four limbs were tied together behind his back, leading to loss of circulation and paralysis.

In 2001 Human Rights Watch discovered the files of the DDS. Among the tens of thousands of documents in the files were daily lists of prisoners and of deaths in detention, interrogation reports, surveillance reports, and death certificates. The files detail how Mr. Habré placed the DDS under his direct authority, organized ethnic cleansing, and kept tight control over DDS operations. They reveal the names of 1,208 persons who died in various jails, including one on the grounds of Mr. Hissène Habré’s presidential compound. The documents mention a total of 12,321 victims of different forms of abuse. In these files alone, Hissène Habré received 1,265 direct communications from the DDS about the status of 898 detainees.

The truth commission also accused Mr. Habré of stealing some 3.32 billion CFA francs (U.S.$5,926,520 at today’s rates) from the national treasury in the days before his flight to Senegal. The total amount taken by Hissène Habré during his rule is said to be considerably higher.

The Attempts to Prosecute Hissène Habré

After Mr. Habré fled Chad, he eventually settled in Senegal. The Chadian truth commission recommended the prosecution of Hissène Habré and his accomplices. The Chadian government did not seek Mr. Habré’s extradition, however. As noted below, the government of Chad has supported Hissène Habré’s extradition to Belgium and has formally waived his immunity.

Senegal

In January 2000, a number of Chadian victims filed a criminal complaint against Hissène Habré in Senegal, where he lives. Jurisdiction was asserted on the basis, inter alia, of the 1984 U.N. Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment, ratified by Senegal, which obliges states to either prosecute or extradite alleged torturers who enter their territory. The Constitution of Senegal provides that “the treaties or agreements regularly ratified or approved have, on their publication, an authority superior to that of the laws.”² Senegal had informed the U.N. Committee against Torture in 1990 and again in 1995 that Senegalese courts could exercise jurisdiction over acts of torture committed by non-Senegalese outside of Senegal.³

In February 2000, a Senegalese court charged Mr. Habré with torture and crimes against humanity and placed him under house arrest. After he was elected in March 2000, however, Senegal’s President Abdoulaye Wade stated publicly on a number of occasions that Mr. Habré would not be tried in Senegal. In July 2000, the magistrate  who had indicted Habré and was pursuing his pre-trial investigation was transferred from his post and shortly thereafter the court of appeals dismissed the charges,  ruling that Senegalese courts had no competence to pursue acts of torture that were not committed in Senegal.

In a joint appeal, the U.N. Commission on Human Rights’ special rapporteurs on the independence of judges and lawyers and on torture “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.”⁴ Nevertheless, the Cour de Cassation, Senegal’s court of final appeals, upheld the ruling on March 20, 2001, holding that Mr. Habré could not stand trial in Senegal for crimes allegedly committed elsewhere because Senegal had not incorporated the provisions of the Convention against Torture into its code of criminal procedure, and because—despite the constitutional provision cited above—such incorporation was required for a criminal prosecution.⁵

However one views the Senegalese courts’ interpretation of Senegalese domestic law—and the decision has been criticized by at least one eminent Senegalese jurist⁶—it cannot excuse Senegal’s failure to prosecute Mr. Habré. As the Vienna Convention on the Law of Treaties states, “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”⁷

Following the Cour de Cassation decision, the Chadian victims/plaintiffs lodged a communication against Senegal with the U.N. Committee against Torture,⁸ alleging a violation of the Convention against Torture. In April 2001, President Wade declared publicly that he had given Habré one month to leave Senegal. In a preliminary ruling issued in April 2001, however, the committee called on Senegal to “take all necessary measures to prevent Mr. Hissène Habré from leaving the territory of Senegal except pursuant to an extradition demand.”⁹ U.N Secretary-General Kofi Annan privately appealed to President Wade to heed the committee’s call. Senegal has indeed scrupulously respected that request.

Belgium

Following the Cour de Cassation decision, Mr. Habré’s victims also announced that they would seek his extradition to Belgium, where twenty-one of Mr. Habré’s victims, including three Belgian citizens, had filed suit under Belgium’s former “universal jurisdiction” law. That law, in its original form, allowed Belgian courts to judge particular crimes of international concern, such as genocide, crimes against humanity, or war crimes, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims. The international law principle of universal jurisdiction, which is incorporated into the legislation of many countries, holds that every state has an interest in bringing to justice the perpetrators of certain atrocities no matter where they were committed.

President Wade stated in September 2001 that following the intervention of U.N. Secretary-General Annan he had agreed to hold Hissène Habré in Senegal pending an extradition request. President Wade has kept that promise. In addition, President Wade said that “if a country capable of organizing a fair trial—there is talk of Belgium—wants him, I do not foresee any obstacle.”¹⁰

The complaints against Mr. Habré were deemed admissible by the Belgian courts. In February and March 2002, at the invitation of the Chadian government, the Belgian judge, a prosecutor, and a police team visited Chad where they interviewed dozens of witnesses, visited Mr. Habré’s prisons and mass graves together with former detainees, and took copies of the DDS files.

A multitude of cases were filed in Belgium against sitting officials of other countries. In February 2002, the International Court of Justice (ICJ), in a case brought by the Democratic Republic of Congo (DRC) against Belgium based on the arrest warrant issued against the DRC Foreign Minister Abdoulaye Yerodia Ndombasi,¹¹ said that certain high-ranking sitting officials enjoyed “immunity of jurisdiction” from prosecution before the courts of another state. As a result, a Belgian court later dismissed the attempted prosecution of Israel’s Prime Minister Ariel Sharon on immunity grounds. Other cases—including several against African heads of state—were then dismissed on immunity grounds as well.

The ICJ left open the question of immunity of jurisdiction for former office-holders. It made clear, however, that immunity belongs not to the individual but to the state, and that the office-holder will “cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity.”¹² In an October 2002 letter to the Belgian judge investigating the charges against Mr. Habré, Chad’s justice minister, Djimnain Koudj-Gaou, removed any doubts as to Mr. Habré’s immunity, writing, “Mr. Hissène Habré can not claim to enjoy any form of immunity from the Chadian authorities.”¹³

The Belgian parliament repealed its universal jurisdiction law in July-August 2003. Most of the cases filed under that law were then dismissed. A transitory clause permitted the maintenance of cases in which the judicial investigation had already begun and in which there were Belgian plaintiffs, however. The Habré case met these criteria as the investigating judge had already carried out a mission to Chad and three of the original plaintiffs were Belgian citizens for many years before the case was filed. Politically, the Habré case was also considered “safe” because the government of Chad was pressing for his extradition to Belgium and President Wade had specifically said that he would look favorably on an extradition request from Belgium for Hissène Habré. Other cases that continue in Belgium include those in which Belgian citizens were killed in Guatemala and Rwanda.

The four-year investigation by a Belgian judge resulted in an international arrest warrant for Mr. Habré on September 19, 2005, charging him with genocide, crimes against humanity, war crimes, torture, and serious violations of international humanitarian law.

Belgium’s Extradition Request

Also on September 19, 2005, Belgium made an extradition request to Senegal. The request cited, inter alia, article 8 of the Convention against Torture, which provides that, as between states parties, the convention serves as a legal basis for extradition for acts of torture.

On October 5, 2005, U.N. Secretary-General Kofi Annan said, “I think the indictment of the [Belgian] Court ought to be respected and countries around the world should cooperate.”¹⁴

On October 26, 2005, Alpha Oumar Konaré, president of the African Union Commission, said, “Regarding Hissène Habré, the Senegalese government has said that if a country wants to try him, it is committed to deliver him to justice. From all the information that we have, his case is with the Senegalese judicial system so that such a procedure is commenced and we can only support such a procedure.”¹⁵

Acting pursuant to the extradition request, the Senegalese authorities arrested Hissène Habré on November 15, 2005.

On November 18, the special rapporteur of the U.N. Commission on Human Rights on torture and other cruel, inhuman, or degrading treatment or punishment, Manfred Nowak, welcomed the arrest and called on the Senegalese government to extradite Mr. Habré to Belgium.

On November 24, 2005, the president of Chad, Idriss Déby Itno, called on President Wade to extradite Mr. Habré to Belgium.

On November 24, 2005, the state prosecutor (Ministère Public) recommended to the Indicting Chamber of the Court of Appeals of Dakar that it declare itself without jurisdiction to rule on the extradition request.

On November 25, 2005, the Indicting Chamber of the Court of Appeals of Dakar ruled that it had no jurisdiction to rule on the extradition request, saying that Mr. Habré, as a former head of state, enjoyed an “immunity of jurisdiction” pursuant to the Yerodia decision of the International Court of Justice¹⁶ that could not be lifted by the Indicting Chamber.¹⁷ (In the opinion of Human Rights Watch, this is a manifest misinterpretation of the Yerodia decision since, as described above, that decision confirmed that the that the office-holder will “cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity,” which Chad had done in this case.)

The court therefore asked the prosecutor to go before another court (“mieux se pourvoir”), and implied that the appropriate jurisdiction to lift Mr. Habré’s immunity was the High Court of Justice (which is the only court in Senegal competent to hear a case against the president of Senegal, and can only be seized by the parliament), thus throwing the case into a legal limbo.Under the Senegalese law on extradition, if the opinion of the Indicting Chamber “rejects the extradition request, the request cannot be granted.”¹⁸ “In the contrary case, the extradition can be authorized by decree.”¹⁹ It is in this second case that the extradition request finds itself after the Indicting Chamber could not rule. In other words, under a literal reading of the law, President Wade may now authorize the extradition of Hissène Habré by decree. Alternatively, the prosecutor could, as the court suggested, ask the parliament to seize the High Court of Justice. In a note circulated to the African Union at its January 2006 session, however, the government of Senegal said that as a result of the court’s decision, the extradition case was “closed.”²⁰

On November 26, 2005, the day after the court decision, the interior minister of Senegal issued an order placing Hissène Habré “at the disposition of the President of the African Union,” and stating that after forty-eight hours Hissène Habré would be expelled to Nigeria. On November 27, the foreign minister of Senegal, Cheikh Tidiane Gadio, stated that Hissène Habré would remain in Senegal. The foreign minister announced in a communiqué that:

Following an interview between His Excellency Maître Abdoulaye Wade, President of Senegal, and His Excellency Olusegun Obasanjo, President of the Federal Republic of Nigeria, and President of the African Union, it was agreed to bring the issue before the next summit of Heads of State of the African Union, scheduled for Khartoum (Sudan) on 23 and 24 January 2006.²¹

The communiqué continued that:

The State of Senegal, sensitive to the complaints of victims who are seeking justice, will abstain from any act which could permit Mr. Hissène Habré to not face justice. It therefore considers that it is up to the African Union summit to indicate the jurisdiction which is competent to try this matter. ²²

As noted below, from a legal standpoint, the role of the African Union can only be a political or consultative one. The treaty obligation to ensure that Hissène Habré not escape justice belongs to Senegal, and Senegal cannot transfer that obligation to the African Union.

The African Union

In the run-up to the African Union summit, most leading human rights NGOs in Africa called for Hissène Habré’s extradition to Belgium either immediately or if the African Union were unable, after a short period, to arrange his trial in Africa.

The West African Civil Society Forum which met in Niamey, Niger from January 4-6, 2006 preceding the Economic Community of West African States (ECOWAS) Heads of State and Government Summit brought together over one hundred representatives from civil society organizations in the fifteen member states of ECOWAS. It adopted a resolution stating that if the African Union could not organize Hissène Habré’s trial in Africa within one year, it should recommend Hissène Habré’s extradition to Belgium.

On January 16, 2006, thirty-five leading civil society groups from across Africa²³ “urge[d] that the African Union recommend to Senegal that it extradite the former Chadian dictator Hissène Habré to Belgium.” The groups said, “We all would have preferred to see Hissène Habré tried in Africa. But the fact is that Senegal refused to prosecute Mr. Habré in 2000 when it had the opportunity to do so, Chad has never sought Mr. Habré’s extradition (and could not guarantee him a fair trial), and no other country has asked for Mr. Habré’s extradition.”²⁴

Similarly, at the African Civil Society Consultation on Engagement with the A.U. organized in Nairobi on January 13-14, 2006, more than forty NGOs²⁵ adopted a statement on the Habré case which concluded that:

The African Union must now propose a concrete, realistic and fundable plan which would lead to Hissène Habré’s prompt and fair trial in Africa.
If the A.U. is unable to set such a plan in motion, with tangible progress by the mid-2006 summit, we would reluctantly conclude that Mr. Habré’s extradition to Belgium is the only possibility for justice and the A.U. should advise Senegal accordingly.

At its Sixth Ordinary Session in Khartoum, the Assembly of the African Union “reiterate[d] the A.U.’s commitment to fighting impunity” and decided “to set up a Committee of Eminent African Jurists to be appointed by the Chairperson of the African Union in consultation with the Chairperson of the Commission of the African Union” to “consider all aspects and implications of the Hissène Habré case as well as the options available for his trial” and to submit a report to its next Ordinary Session in June 2006.²⁶ The assembly asked the CEAJ to take into account the following benchmarks:

• Adherence to the principles of total rejection of impunity;
• Adherence to international fair trial standards including the independence of the judiciary and impartiality of proceedings;
• Jurisdiction over the alleged crimes Mr. Habré should be tried for;
• Efficiency in terms of cost and time of trial;
• Accessibility to the trial by alleged victims as well as witnesses;
• Priority for an African mechanism.

The assembly also mandated the CEAJ “to make concrete recommendations on ways and means of dealing with issues of a similar nature in the future.”