Senegal is now proceeding with plans to
prosecute former Chadian tyrant Hissène Habré, who has enjoyed a form of asylum
in Senegal for more than two decades. Last week, the text of the ‘Statut des Chambres africaines extraordinaires’ was released. It provides for the
establishment of something that must be without precedent in the annals of
international criminal law and, indeed, in the annals of law: a national
tribunal created by one State with exclusive jurisdiction over acts perpetrated
in another State.
Article 1 of the Statut says that its
purpose is to implement the decision of the African Union concerning
prosecution by Senegal of international crimes perpetrated in Chad between 7
June 1982 and 1 December 1990 in accordance with Senegal’s international
obligations. A relevant fact, but one not cited in the law, is the decision by
the International Court of Justice last July finding Senegal to have breached its
international obligations by failing to prosecute Habré.
Article 2 establishes the ‘Chambres
africaines extraordinaires’ within the courts of Senegal and article 3 says:
‘The Chambres africaines extraordinaires are empowered to prosecute and judge
the principal perpetrators of crimes and serious violations of international
law, of international custom and of international treaties ratified by Chad,
committed on the territory of Chad during the period from 7 June 1982 to 1
December 1990.
The Chambres have jurisdiction over
genocide, crimes against humanity war crimes and torture. As is often the case
in national legislation providing for prosecution of international crimes, the
definitions are somewhat idiosyncratic. For example, whereas article 2 of the 1948
Genocide Convention lists ‘meurtre de membres du groupe’ (‘killing members of
the group’) as the first punishable act of genocide, the Senegalese legislation
uses the words ‘l’homicide volontaire de membres du groupe’. Actually, the
Senegalese version may be an improvement on the French version of the
Convention. It is certainly closer to the English text.
The definition of crimes against
humanity has its own unique feature. In contrast with genocide, where a
treaty-based definition dating to 1948 was applicable to Chad in the 1980s, the
only comparable treaty-based definition of crimes against humanity in the 1980s
is found in article VI of the Charter of the International Military Tribunal
(the Nuremberg tribunal). The Senegalese legislation proposes a concept of
crimes against humanity with a contextual element that refers to ‘a widespread
or systematic attack directed against any civilian population’, language that
appears in article 7 of the 1998 Rome Statute. It proceeds to list the
punishable acts in a rather original form, with the first category clearly
drawn from the sexual violence provisions of the Rome Statute. It proceeds by
listing ‘homicide involontaire’ (killing), whereas the Rome Statute says
‘meurtre’ (murder). The final act in the list is quite novel and does not seem
to have any precedent: ‘g) la torture ou les actes inhumains causant
intentionnellement de grandes souffrances ou des atteintes graves à l’intégrité
physique ou à la santé physique et psychique inspirées par des motifs d’ordre
politique, racial, national, ethnique, culturel, religieux ou sexiste’ (torture
or inhuman acts intentionally causing great suffering or serious attacks on
physical integrity or physical or mental health for political, racial,
national, ethnic, cultural, religious or sexist motives).
The Chambres are international not only
by virtue of the crimes that they prosecute but also because of the involvement
of the President of the Commission of the African Union in the appointment of
judges and at least one of the judges is to be a national of another African
State.
The Human Rights Watch website has a
very useful FAQ section about the new court.
Although Habré’s name is not mentioned in the Statute,
he will be the main defendant, if not the only one. An interesting issue of immunity
arises, given that Habré is being prosecuted for acts perpetrated while he was
head of State of Chad. When Pinochet was arrested in London in 1998, the House
of Lords held that he did not enjoy immunity from prosecution for torture.
However, this finding was reversed by the International Court of Justice in the
2002 Yerodia case. In principle, according to the International Court of
Justice, a national court may not judge the head of state or even the former
head of state, even for international crimes. The famous paragraph 61 of the
Yerodia decision sets out exceptions to this general rule, of which the second
is: ‘Secondly, they will cease to enjoy immunity from foreign jurisdiction if
the State which they represent or have represented decides to waive that
immunity.’ That is what seems to have happened. In fact, in para. 20 of last
July’s ruling the International Court of Justice noting a letter dated 7
October 2002 from the Minister of Justice of Chad saying ‘that the Sovereign
National Conference, held in N’Djamena from 15 January to 7 April 1993, had
officially lifted from the former President all immunity from legal process’.
Habré’s lawyers may argue that the immunity is a personal defence, but there is
much authority for the view that the immunity belongs to Chad, not Habré, and
that Chad can waive it if that is what it wants.
