Association des Victimes des Crimes et Répressions Politiques au Tchad (AVCRP) et al. v. Hissène Habré

Court	Supreme Court of Senegal, Senegal
Case number	14
Decision title	Judgment
Decision date	20 March 2001
Parties	Souleymane Guengueng Dr Zakaria Fadoul Khidir Issac Haroun Yonous Mahadjir Valentin Neatobet Bidi Ramadane Souleymane Togoto Lamaye Samuel Association des Victimes des Crimes et Répressions Politiques au Tchad (AVCRP) Chadian Association of Victims of Crimes and Political Repression Hissène Habré
Categories	Crimes against humanity, Torture
Keywords	crimes against humanity, torture
Links	Judgment
Other countries involved	Chad

Summary

Hissène Habré, currently a resident of Senegal, 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. He was indicted by the investigating judge in Senegal for complicity in crimes of torture committed in Chad.

The present decision of the Supreme Court upheld a decision of the Court of Appeal of Dakar barring criminal proceedings against Habré on the grounds that the Senegalese courts lacked jurisdiction to prosecute foreign nationals for acts of torture committed outside Senegal. The Supreme Court found that there was no provision in domestic legislation establishing jurisdiction over such offences.

Procedural history

On 25 January 2000, counsel for Souleymane Guenguen, Zakarta Fadoul Khidir, Isaac Haroun Abdallah, Younouss Mahadjir, Togoto Lonaye Samuel, Ramadame Souleymane, Valentin Neatobet Bidi and the Chadian Association of Victims of Crimes and Political Repression (Association des victims de crimes et répression politiques au Tchad) applied to be admitted as civil parties in the criminal proceedings against Hissène Habré for complicity in crimes against humanity, acts of torture and barbarous acts before the Regional Court of Dakar.

On 3 February 2000, the investigating judge indicted Hissène Habré for the afore-mentioned acts in violation of Articles 45, 46, 294 bis and 288 of the Criminal Code of Senegal.

On 18 February 2000, the Accused filed a motion before the Indictments Chamber of the Court of Appeal of Dakar with a view to having the Senegalese courts declared incompetent to hear his case.

On 4 July 2000, the Court of Appeal of Dakar barred criminal proceedings against Habré on the grounds that Senegalese courts lacked jurisdiction to prosecute foreign nationals who had allegedly committed acts of torture outside the territory of Senegal (see also 'Senegal: Case Against Hissène Habré Dismissed', IRIN, 5 July 2000).

The decision was appealed by the plaintiffs to the Supreme Court.

Related developments

On 8 May 2003, other victims of Habré instituted proceedings against the latter before the Belgian courts in application of a law providing for universal jurisdiction in the country.

In September 2005, Belgium issued an arrest warrant for Habré and requested his extradition from Senegal. By a decision of 25 November 2005, the Court of Appeal of Dakar rejected the extradition request on the grounds that the former Head of State enjoyed immunity from prosecution.

On 15 August 2008, the criminal court in N’Djaména tried Habré in absentia and sentenced him to death for crimes against humanity.

In October 2008, Habré requested a declaration of the Court of Justice of the Economic Community of States of West Africa (ECOWAS) to the effect that Senegal had violated his human rights by disregarding fundamental legal principles. By a decision of 18 November 2010, the Court replied that Habré must be treated in accordance with international law and customs.

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 (EAC) 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 Habrè was the President of Chad from 1982 until 1990 and he imposed a brutal dictatorship in his country, characterised by a persistent violation of human rights. Its political police, the Bureau of Documentation and Security (DDS) is alleged to have caused the deaths of tens of thousands of individuals in the country.

Core legal questions

Does the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provide a legal basis for the Senegalese courts to exercise jurisdiction over acts of torture?

Specific legal rules and provisions

Articles 4 and 5(2) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Articles 288 and 295-1 of the Criminal Code of Senegal.

Court's holding and analysis

Article 4 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment obliges States Parties to criminalise all acts of torture under their domestic law. Article 5(2) further requires that States Parties shall take the necessary measures to establish jurisdiction over acts of torture in cases where the offender is present on their territory. Whilst Senegal ratified this Convention and introduced into its Criminal Code Article 295-1 criminalising all acts of torture, no corresponding modification was made to its Code of Criminal Procedure. The Senegalese courts are therefore incompetent to try foreign individuals for acts of torture committed outside of their national territory, whatever the nationality of the victims may be. Senegalese law does not provide for universal jurisdiction over crimes of torture. Thus, the presence of Hissène Habré on Senegalese territory does not by itself suffice as a legal basis to institute criminal proceedings against him for torture committed in the Republic of Chad (p. 5).

Further analysis

I. Sansani, 'The Pinochet Precedent in Africa: Prosecution of Hissène Habré', Human Rights Brief, 2008, No. 2.
J. Panakova, 'Law and Politics of Universal Jurisdiction', Amsterdam Law Forum, 2011, pp. 49-72.
R. Brody, 'The Prosecution of Hissène Habré – An “African Pinochet”', New England Law Review, 2001, Vol. 35, pp. 321-345.
M.P. Scharf, 'Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States', New England Law Review, 2001. Vol. 35, pp. 363-382.
L. Arimatsu, 'Universal Jurisdiction for International Crimes: Africa’s Hope for Justice?', Chatham House Briefing Paper 2010, IL BP 2010/01.
D.V. Hoover, 'Universal Jurisdiction Not So Universal: A Time to Delegate to the International Criminal Court', Student Conference Paer, 2011, 6-4-2011.
Internationallaw Blogger, 'ECOWAS Court Rejects Hissene Habre's Challenge to Trial at Extraordinary African Chambers', Law Professors' Blog, 5 November 2013.
M. Inazumi, Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes Under International Law, 2005. See esp. p. 90 et seq.

Instruments cited

Criminal Code of Senegal, 21 July 1965 (in French only).
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 10 December 1984.

Related cases

Court of First Instance of N’Djaména, The Prosecutor v. Hissène Habré, Case No. 04/PR/MJ/93, Ordinance of Non-Competence, 23 November 2000.
Court of Appeal of Dakar, Souleymane Guengueng and Others Against Hissène Habré, Case No. 135, Arrêt, 4 July 2000 (Summary in English, Decision in French).
Constitutional Court of Chad, Appeal by the Civil Parties Related to the Criminal File Opened against the Agents of the DDS and Hissène Habré, Case No. Nº002/PCC/SG/001, Decision, 6 April 2001.
Court of Appeal of Dakar, Opinion on the Extradition Request for Hissène Habré, Decision, 25 November 2005.
Court of Justice of the Economic Community of States of West Africa, Hissène Habré v. Republic of Senegal, Case No. ECW/CCJ/JUD/06/10, Judgment, 18 November 2010 (in French only).
Belgium v. Senegal, International Court of Justice, Judgment of 20 July 2012.