By way of background, Chad's current President—Idriss Déby Itno—deposed Habré in 1982, causing the latter to flee to Senegal. The 1992 report of the Chadian truth commission accused the Habré regime of committing 40,000 political murders.
In 2000, Senegal (incidentally the first state to have signed the Statute of the ICC) indicted Habré for crimes committed in Chad during his rule. At that time, however, Senegalese courts ruled that the legislative framework in place did not allow for his prosecution. In particular, the courts expressed concerns about the extraterritorial reach of Senegalese law and the absence of crimes against humanity in the domestic penal code.
Victims constituting themselves as parties civiles in Belgium then initiated suit against Habré in Belgium. (Image at right is of widows of the disappeared. Photo credit). After a four-year investigation, a Belgian judge issued an arrest warrant in September 2005 charging Habré with crimes against humanity, war crimes, and torture. Belgium requested extradition. Senegal's refusal to hand Habré over to Belgium, in part on the ground that he was entitled to head of state immunity, has given rise to a suit before the International Court of Justice, as we've discussed here.
Back in Senegal, legislators finally drafted ICC implementing legislation that would enable the prosecution under principles of extraterritorial jurisdiction. In particular, the penal code was amended to make punishable acts considered criminal according to general principles of law as recognized by the community of nations. This legislative provision, however, could not override a superior constitutional articulation of the prohibition against ex post facto prosecution. The constitutional provision was eventually amended to reflect the articulation of the principle of legality in Article 15(2) of the International Covenant on Civil & Political Rights:
Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to international law pertaining to genocide, crimes against humanity, and war crimes.The law was also amended to abolish the statute of limitations associated with international crimes in keeping with the ICC Statute. This change did not, however, apply to the crime of torture. For more on the amendments to Senegalese law, see here.
In response to a 2008 suit filed by Habré alleging that the change in the law violated the ex post facto principle as set forth in Article 7(2) of the African Charter on Human & People's Rights, the ECOWAS Court of Justice ruled on November 24, 2010, that any prosecution of the former president under the new statutes would violate the principle of non-retroactivity. See this article for a discussion and here for our prior posts on this innovative and increasingly important regional court. The Court recommended, however, that Senegal implement the AU proposal and convene a hybrid court along the lines of the Special Court for Sierra Leone.
This ruling reflects a trend of relying on international tribunals to avoid difficulties in domestic law. And so, international tribunals have ruled that they:
- are not bound by domestic amnesty laws or pardons,
- can abrogate common law immunities,
- can escape statutes of limitation, and
- are empowered to prosecute individuals for crimes that were not punishable under domestic law at the time the defendant acted.
In January 2011, the AU confirmed the decision to set up such a tribunal in its Decision 340(XVI). The AU has authorized $1 million of Union funds to go toward the trial; additional funds to the tune of $11 million will be provided by a group of donors (the so-called Donors' Round Table for the Financing of the Trial) who met on November 24, 2010. Although the AU and Senegal have yet to sign an agreement defining the complete modalities of the plan, it is envisioned that the ad hoc tribunal would be part of the Senegalese justice system. The President and Appeals Chamber President would likely be appointed by the AU. The tribunal would have jurisdiction over those individuals (potentially beyond Habré himself) "who bear the greatest responsibility" for genocide, crimes against humanity, war crimes, and torture during the Habré years. Human Rights Watch, which has been involved in the suit since the beginning, has coverage on the efforts to hold Habré accountable here. See also here.