Practice Relating to Rule 158. Prosecution of War Crimes
Chad’s Instructor’s Manual (2006) states that “States are under an obligation to repress war crimes.”
The manual further states:
- When faced with a grave breach of IHL … a State must ensure the penal repression of the perpetrator of that breach. This may be done in two ways:
- By applying sanctions to the breach by its own court (obligation of repression);
- By taking steps to ensure that the perpetrator of the breach is brought before a foreign or international court.
- When dealing with a breach of IHL that is not classified as “grave”, a State may take the measures necessary to put an end to that breach.
Those measures may include penal, disciplinary, statutory or administrative sanctions.
In 2007, in its initial report to the Committee against Torture, Chad stated:
The Commission of Inquiry of the Ministry of Justice into the crimes and abuses of power of former President Habré and his accomplices
112. The determination of the Chadian people to turn the final page on torture, and the foundation of the Government’s actions to that end, are manifest in the report of the aforesaid Commission, in which the key phrase is: “Never again”. Although the Commission was established prior to Chad’s ratification of the  Convention [against Torture], its report is just as relevant today. It is, in fact, the principal basis for the trial of Habré and his accomplices and for the fight against torture. The acts attributed to Habré and his accomplices are precisely those referred to in article 4 of the Convention, which is the subject of the present report.
113. The Commission of Inquiry was created by Decree No. 014/P.CE/CJ/90 of 29 December 1990 at the end of Hissène Habré’s dictatorship and entrusted with the task of assessing the reign of terror that had cost so many human lives.
114. Placed under the authority of the Ministry of Justice, the Commission of Inquiry’s tasks were to:
- Investigate the abductions, detentions, murders, disappearances, acts of torture and barbarism, ill-treatment, other attacks on physical and moral integrity and all human rights violations …
- Determine the amount of the contribution to the war effort and its use as of 1986;
115. That report, published by Harmattan in 1993, is one of the key documents in the prosecution of former President Habré and his accomplices …
380 … [T]he publication of the report of the Commission of Inquiry into the crimes committed by former President Hissène Habré and his accomplices has made quite an impact internationally; this provoked massive support for the victims on the part of non-governmental organizations and the international community.
381. This support inspired some 100 people to bring criminal indemnification proceedings individually and collectively so that their torturers, the former DDS [Documentation and Security Directorate] agents, should be brought to justice, tried and punished.
382. These criminal indemnification proceedings led to interviews of 35 persons and the indictment of 20 former DDS agents; 19 of them were subjected to detailed interrogation. Hitherto the investigating judges in charge of the case have only succeeded in making one confrontation.
383. It should be noted that the Habré case is still pending before the courts.
Chad also stated:
297. The criminal legislation of Chad does not envisage or punish torture as a criminal act. Consequently the discovery within the country of a suspected perpetrator of an act of torture committed outside the country cannot give rise either to extradition or to prosecution by the Chad[ian] authorities …
299 … Since torture is neither a crime nor a délit under Chadian law, not only can no request for extradition be met but in addition it will no longer be possible to undertake proceedings of any kind. Thus the introduction of the provisions of the  Convention against Torture into the domestic legal order is necessary for purposes of trial or extradition of perpetrators of acts of torture.
300. However, if a specific act of torture in respect of which extradition is requested is deemed to be an act giving rise to a penalty of criminal or délit
rank under the provisions of domestic instruments (such as the administration of a harmful substance during interrogation by a public official), extradition will be granted, since such acts are punishable under article 245 of the Chadian Criminal Code.
In 2007, in its initial report to the Human Rights Committee, Chad stated:
There is no legislative or regulatory provision at present dealing with serious crimes such as crimes against humanity, genocide and war crimes which are punishable under international humanitarian law. However, these categories of crime offend human conscience and have no place among civilized nations today. Chad has acceded to the 1949 Geneva Conventions … on international humanitarian law and, since 1 January 2007, has been a party to the … [1998 ICC] Statute … This will be taken into account in the current reform process, by codifying the crimes that fall within the jurisdiction of the International Criminal Court.
In 2009, in its written replies to the issues raised by the Human Rights Committee with regard to Chad’s initial report, Chad stated:
The Criminal Code allows justice system personnel to be prosecuted for abuses committed against detainees. For example, following the abuses committed under the regime of former President Habré, victims filed for criminal damages with the chief investigating judge in what could be called the “Habré and accomplices case”. As a result of their application investigations were launched in Chad and Senegal.
Chad also stated:
The Commission of Inquiry has investigated the circumstances surrounding the abduction of Mr. […] during the disturbances of 2 and 3 February 2008. The commission could not give any details. As the case has been brought before the courts, its conclusions should help explain what happened to him.
In 2009, during the consideration of Chad’s initial report to the Committee against Torture, a statement of the delegation of Chad was summarized by the Committee in its records as follows:
With regard to the events of 2 February 2008, for 48 hours N’Djamena had been entirely occupied by rebels who, as they withdrew, had attacked the population. Only after the rebels’ withdrawal had it become clear that people had disappeared, including civilians, some of whom had been found and some not. … A fact-finding commission had been set up and had been given considerable resources and complete discretion to investigate. It had formulated conclusions and recommendations, including the recommendation that legal proceedings should be instituted and that a monitoring committee should be established. The case had, accordingly, been taken to the court, and judges of renowned integrity had been selected to hear the case.
The statement of the delegation of Chad was also summarized by the Committee as follows:
[T]he Government was determined … to combat impunity. The authorities had to … consider the situation as a whole when they were considering punishing members of the army – in particular senior officers – who committed offences, since they were the defenders of territorial integrity, which could not be compromised. When members of the military were punished, other members sometimes abandoned their posts out of solidarity. Administrative sanctions were nevertheless applied.
In 2012, in its second periodic report to the Human Rights Committee, Chad stated:
128. The Government’s resolve to bring to justice those responsible for serious human rights violations was reflected in the setting up of a Commission of Inquiry. Having completed its task, that Commission submitted its findings. The Government set up a technical committee to follow up its recommendations.
129. The cases of those responsible for human rights violations during the events of February 2008 are currently being investigated. It is, however, worthwhile recalling a number of recommendations made by the Commission of Inquiry, including the following:
– … [T]rial of perpetrators;
130. The Committee had suggested that the Government should promptly implement those recommendations. It has done so by taking the following measures:
– … [T]rial of perpetrators;
131. Furthermore, pursuant to the recommendations of the Commission of Inquiry into the events of 28 to January to 8 February 2008, the Government decided to establish by Decree No. 1126/PM/2008 a Committee to follow up those recommendations, composed of members of the Government and chaired by the Prime Minister.
133. In addition, since the recommendations of the Commission of Inquiry are judicial (giving a judicial follow-up to the events) and legal (implementation of measures to avoid a recurrence of those events), a Technical Subcommittee was established by Order No. 2932/PR/PM/SGG/2008 to support the Follow-up Committee.
134. Similarly, the Minister of Justice established a judicial pool composed of members of the judiciary, lawyers, court clerks and officers of the judicial police. The judicial pool referred to the courts the complaint filed by the Government of Chad against persons unknown for war crimes against humanity committed by armed elements and their accomplices upon their entering the national territory in January and February 2008. A total of 1,037 case files were prepared by the supporting Technical Subcommittee. The procedure is following its course and remains pending before the courts; the Government awaits its outcome.
135. The Follow-up Committee has also recently published a progress report on the implementation of the recommendations of the Commission of Inquiry. Of 13 recommendations, 12 have been implemented. The one remaining, concerning judicial investigations, is following its course. The report was officially submitted by the Prime Minister and disseminated at the national and international levels.