Developments since the African Union RecommendationOn November 2, 2006, four months after Senegal’s commitment to the AU, Senegalese government spokesman El Hadji Amadou Sall said that Senegal would revise its laws to permit Habré’s trial, and would establish a commission under the minister of justice to prepare the Habré trial. That commission began to deliberate in December under the leadership of magistrate El Hadj Malick Sow, who is also the coordinator of the Senegalese Human Rights Committee. In February 2007, President Wade signed into law measures permitting Senegal to prosecute cases of genocide, crimes against humanity, war crimes and torture, even when they are committed outside of Senegal. The laws also contained a provision, drawn directly from Article 15 of the International Covenant on Civil and Political Rights,2 which allows charges to be brought for such acts which, at the time of their commission, were criminal under international law.3 This allows Habré to be tried for genocide, crimes against humanity, war crimes, and torture even though these may not have been crimes under Senegalese or Chadian law at the time they were committed. In March 2007 the working group led by Malick Sow presented its report to President Wade (the “Sow report”).4 The report made several key findings. In particular, it recommended that Senegal take immediate measures to assure Habré’s presence at the trial, and found that the question of non bis in idem (double jeopardy) did not bar Habré’s trial. It also proposed creating a new jurisdiction to try Habré, with a new building and 15 new judges paid at top salaries on United Nations scales. The working group did not hold public meetings or hearings, examine the evidence in the case, or contact the Belgian or Chadian authorities. President Wade reportedly found the plan to create a new court—and its €66 million price tag—exorbitant, and he asked for a more reasonable proposal. 5 In April 2007, the European Parliament invited the European Union “to encourage and assist the government of Senegal in preparing for the prompt and fair trial of Hissène Habré, in order to answer accusations of mass violations of human rights.” In July 2007, the Senegalese Minister of Justice Cheick Tidiane Sy announced that Habré would be tried before the ordinary courts of Senegal rather than a new jurisdiction as had been proposed. After review by an auditing firm, a new budget (“The Financial Report”)6 of €28 million was prepared.7 Of this, one-third would be for the reconstruction of the abandoned Cap Manuel Courthouse. In July 2007, the President of the Swiss Confederation, Micheline Calmy-Rey, and the President of France, Nicolas Sarkozy, both announced publicly in Dakar that their countries would assist Senegal in organizing the trial. On July 18, 2007, over one year after the AU summit, President Wade wrote to the African Union, the European Union and a number of potential donor countries—including the United States and Canada—advising them of Senegal’s plans to prosecute Habré, inviting them to a donor meeting, and asking for their support. The European Union has decided in principle to respond positively to President Wade’s request and agreed to dispatch an expert mission to Dakar. The mission will consist of Bruno Cathala, the Registrar of the ICC, and Roelof Haveman, a Dutch law professor. Senegal called a donors meeting for October 18, but agreed to postpone it pending the arrival of the EU assessment mission. Unfortunately, that mission—originally scheduled for October—has been subject to lengthy delays because of scheduling conflicts, and is now expected to visit Dakar for the first time in late January 2008. In November 2007 it was announced that the African Union had named Robert Dossou, Benin’s former foreign minister and justice minister, as the AU envoy to the trial. Dossou had been chair of the AU Committee of Eminent African Jurists on the Habré case. On November 29, President Wade again wrote to donors inviting them to a donors’ meeting on December 13-14. On December 7, however, the Senegalese authorities again postponed the meeting. 2 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976. Article 15 of the ICCPR states: “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.” 3 The Law of January 31, 2007 n° 06/2007 modifying the Penal Code, in Article 431-6 para. 3, says: “Notwithstanding the provisions of article 4 of this code, a person can by tried and convicted for any act or omission set forth in this chapter [genocide, crimes against humanity, war crimes] and article 295-1 of the Penal Code [torture] which, at the time and in the place when it was committed, was criminal according to the general principles of law recognized by the community of nations, whether or not it constituted a contravention of the law in force at the time and in the place of its commission” [« Nonobstant les dispositions de l’article 4 du présent code, tout individu peut être jugé ou condamné en raison d‘actes ou d’omissions visés au présent chapitre [génocide, crimes contre l’humanité, crimes de guerre] et à l’article 295-1 du Code Pénal [torture] qui, au moment et au lieu où ils étaient commis étaient tenus pour une infraction pénale d’après les principes généraux de droit reconnus par l’ensemble des nations, qu’ils aient ou non constitué une transgression du droit en vigueur à ce moment et dans ce lieu ».] 4 Rapport du Groupe de Travail sur l’Affaire Hissène Habré, Ministère de la Justice de Senegal (March 2007). 5 “ Senegal—Proces Habré: devis exorbitant, Jeune Afrique, April 1-14, 2007. 6 Validation du Rapport Financier du Groupe de Travail sur l’Affaire Hissène Habré, Compagnie International de Conseil et d’Expertise. 7 The budget now attached to the Sow Report is CFA 18,337,500,000 (approximately €27,955,000). The budget used by the Financial Report is CFA 18,750,971,825 (approximately €28,585,672).
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