Background Briefing

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Future Situations

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

By “issues of a similar nature,” the assembly presumably meant the situation of exiled former heads of state accused of committing serious crimes against international law such as genocide, crimes against humanity, war crimes, and torture. We thus leave aside the questions of what the African Union should do to prevent sitting heads of state from committing such crimes or how countries in transition to democracy should deal with the crimes of previous regimes.

In the opinion of Human Rights Watch, the way to deal with similar situations in the future, like the way to deal with the case of Hissène Habré, is by respecting and applying the principles of the African Union,55 the applicable norms of international law, and the international accountability mechanisms already in place. These include the rules against impunity for the worst international crimes, the conventions which require states to extradite or prosecute the worst offenders, and the International Criminal Court. Looked at in this light, there is no need for new mechanisms to deal with issues of this nature.

The case of Hissène Habré illustrates this point. As described above, Senegal was under a legal obligation to prosecute or extradite Hissène Habré once he arrived in its territory.56 Had Senegal lived up to its international obligations, the objectives of the Convention against Torture would have been fulfilled, Hissène Habré would not have continued to enjoy impunity for his alleged crimes, the victims would not have turned to a Belgian court and the issue would not have reached the African Union.

The reason given by the Senegalese courts for Senegal’s inability to fulfill its treaty obligations was its failure to incorporate in its criminal procedure code a provision giving its courts judicial competence to pursue acts of torture committed by non-Senegalese outside of Senegal, as required by the Convention against Torture. This appears to be a widespread problem among African states which have ratified the convention. The CEAJ should therefore recommend that states not only ratify the relevant conventions, such as the Convention against Torture and the Geneva Conventions, but also bring their domestic legislation into harmony with these conventions so that they are in a position to fulfill their obligations.

As noted above, Senegal’s president on a number of occasions ruled out Hissène Habré’s trial in Senegal on the ground that such a trial would involve hundreds of witnesses and prove too costly for the Senegalese courts. It is true that the trial of Hissène Habré, or that of other former heads of state, when conducted outside the country where the crimes took place, would inevitably cost millions of dollars. The CEAJ might therefore look at ways in which the financial burden on the forum state of meeting its international obligations could be reduced or shared evenly by African states, through a sort of “Africa Justice Fund” and/or via international cooperation.

For international crimes committed after July 2002, the International Criminal Court regime would seem to offer the strongest guarantee against impunity where national jurisdictions are either unwilling or unable to bring to justice the alleged perpetrators. Twenty-sevenAfrican states are parties to the ICC, and the CEAJ could recommend that all African states ratify the Rome Statue of the ICC and incorporate the required provisions into their domestic legislation.

In order to deal with issues of a similar nature in the future, the CEAJ should thus recommend that:

  • All African states ratify the principal international anti-impunity instruments, including the Rome Statute of the International Criminal Court, the U.N. Convention against Torture, and the Geneva Conventions, and they bring their domestic legislation into harmony with these conventions so that they are in a position to fulfill their obligations; and
  • A fund be created, open to international donors, to assist African states in bringing to justice the perpetrators of the worst international crimes.

[55] Article 3(h) of the Constitutive Act of the African Union contains the promotion and protection of “human and people’s rights in accordance with the African Charter on Human and People’s rights and other relevant human rights instruments” as one of the objectives of the African Union. Article 4 of the same act enunciates as a founding principle of the African Union “respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.”

[56] Although it is not legally relevant to Senegal’s obligations, it should be noted that Hissène Habré’s flight from Chad on December 1, 1990, and his eventual arrival in Senegal were not part of any “deal” in which Mr. Habré was assured of immunity from prosecution. Hissène Habré fled Chad for neighboring Cameroon as the troops of current President Idriss Déby Itno advanced on the capital N’Djamena. At the request of the president of Cameroon, Senegal agreed to allow Mr. Habré to take up residence there.

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