Hissène Habré v. Republic of Senegal

Court	Court of Justice of the Economic Community of States of West Africa (ECOWAS), Nigeria
Case number	ECW/CCJ/JUD/06/10
Decision title	Judgment
Decision date	18 November 2010
Parties	Hissène Habré Republic of Senegal
Categories	Crimes against humanity
Keywords	crimes against humanity, torture
Links	Judgment
Other countries involved	Belgium Chad

Summary

Hissène Habré was the President of the Republic of Chad from 1982 until 1990. During that time, he established a brutal dictatorship which, through its political police, the Bureau of Documentation and Security (Direction de la Documentation et de la Sécurité (DDS)), caused the deaths of tens of thousands of individuals. Residing in exile in Senegal, he was unsuccessfully brought before the Senegalese courts in 2000-2001 at which time the Supreme Court of Senegal confirmed that it did not have jurisdiction to hear the case as the acts allegedly committed by Habré were not criminalised under domestic law. In response to an African Union mandate to prosecute Habré, Senegal amended its legislation to provide for universal jurisdiction over crimes against humanity and acts of torture committed by foreign nationals outside of Senegalese territory.

Habré brought a complaint against Senegal before the Court of Justice of the Economic Community of States of West Africa alleging that the new legislation breached his human rights, including the principle of non-retroactivity of the criminal law. The Court held, in a decision that has been criticised for lack of legal basis, that Senegal would violate the principle of non-retroactivity if its tried Habré in its domestic courts. Instead, international custom mandates that Senegal establish a special tribunal to try and prosecute Habté.

Procedural history

On 25 January 2000, seven Chadian nationals and the Chadian Association of Victims of Crimes and Political Repression (Association des victiemes des crimes et de repression politique de Chad) filed a civil action with the Regional Tribunal of Dakar against Hissène Habré.

On 3 February 2000, Habré was indicted on charges of complicity in crimes against humanity and acts of torture and barbarous acts.

On 4 July 2000, the Indictments Chamber of the Court of Appeal of Dakar granted Habré’s request to cancel the indictment and bar proceedings against him on the grounds that Senegalese law did not provide for jurisdiction over crimes against humanity or acts of torture committed by foreign nationals outside the territory of Senegal. This was confirmed on appeal by the Supreme Court of Senegal in a decision of 20 March 2001.

On 20 September 2005, Belgium issued an international arrest warrant for Habré. By a decision of 25 November 2005, the Court of Appeal of Dakar declared itself incompetent to rule on the extradition request.

On 1 October 2008, Hissène Habré filed a complaint before ECOWAS alleging that Senegal, in the proceedings against him, had violated his human rights by disregarding fundamental legal principles including the non-retroactivity of criminal law, the authority of res judicata, equality before the law, independence of the judiciary, separation of powers and the right to a fair trial.

On 17 November 2009, the Court, in an interlocutory decision, held that the applications to intervene filed by victims and victims’ associations are inadmissible (see also 'ECOWAS Court Rejects Habre’s Victims’ Request').

On 14 May 2010, the Court held that it had jurisdiction to hear the case and rejected the objections raised by Senegal to the present proceedings.

Related developments

In February 2009, Belgium introduced proceedings against Senegal before the International Court of Justice requesting the Court to order the Senegalese authorities to maintain Habré under house arrest. By a decision of 20 July 2012, the ICJ ordered Senegal to either prosecute or extradite Habré so that he may stand trial without further delay.

On 22 August 2012, Senegal and the African Union signed an agreement to establish the Extraordinary African Chambers in Senegal to prosecute, amongst others, Habré for crimes committed by his regime in Chad.

Habre (again) brought a suit at the ECOWAS Court seeking an order for the immediate suspension of all investigations and proceedings, alleging that the EAC were an illegitimate court and that his trial would be unfair. However, on 5 November 2013, the Court held that since the EAC was established pursuant to a treaty between Senegal and the AU, it had no jurisdiction to rule on the case. The case was dismissed, clearing the way for the trial to start.

Legally relevant facts

Hissène Habré was President of the Republic of Chad from 1982 until a coup d’état overthre him in 1990. Since his overthrow, he has been a resident of Senegal (para. 7).

Senegal has recently begun amending its legislation and its Constitution, with the effect that the trial of Hissène Habré for crimes against humanity and actsof torture would now be possible (para. 16).

Core legal questions

Does Article 74 of the Constitution of Senegal violate Hissène Habré’s right to effective remedy by excluding individuals from being able to raise the unconstitutionality of a new provision before the Constitutional Court?
Do the amendments carried out by Senegal to its domestic law in order to carry out the mandate of the African Union to prosecute and try Hissène Habré violate the principle of non-retroactivity of the criminal law?

Specific legal rules and provisions

Articles 7, 8, 10 and 11(2) of the Universal Declaration of Human Rights.
Articles 1 and 7 of the African Charter on Human and People’s Rights.
Articles 3(4), 14(1) and 26 of the International Covenant on Civil and Political Rights.
Articles 1a and 9 of the ECOWAS Protocol on Democracy and Good Governance.
Articles 7(4), 9 and 74 of the Constitution of Senegal.
Article 431-6 of the Criminal Code of Senegal.

Court's holding and analysis

Article 74 of the Constitution of Senegal excludes individuals from brining an action before the Constitutional Court of Senegal with a view to declaring a law unconstitutional. Hissène Habré is thus precluded from seizing the Constitutional Court to have declared the new Senegalese legislative amendments unconstitutional for breach of the principle of non-retroactivity of the criminal law. The right to an effective remedy guaranteed by the International Covenant on Civil and Political Rights (ICCPR) is different from the limited constitutional remedy reserved by the domestic laws of a State to a number of individuals to establish the unconstitutionality of one or more laws (para. 35).

In order to fulfil the mandate of the African Union to try and prosecute Hissène Habré for allegedly committing crimes against humanity and torture in Chad, Senegal has introduced new legislative provisions into its Criminal Code that provide for universal jurisdiction over such crimes (paras. 54-55). On the face of it, prosecuting Habré for acts that occurred twenty years ago and which have only recently been criminalised in Senegal would violate the principle of the non-retroactivity of the criminal law (para. 57). However, the principle is not breached where the acts in question, although not criminalised under domestic law amount to conduct criminalised by international law at the moment of their commission. This is expressly provided for in Article 15(2) of the ICCPR (para. 58).

Accordingly, international custom requires that Senegal should establish a special ad hoc tribunal to prosecute Habré as opposed to reliance on its domestic courts (paras. 58-59).