Practice Relating to Rule 157. Jurisdiction over War Crimes
Senegal’s Criminal Procedure Code (1965), as amended in 2007, states:
Any foreign national who, outside the territory of the Republic [of Senegal], is accused of perpetrating or acting as an accomplice to one of the crimes mentioned in articles 431-1 to 431-5 [on the crime of genocide, crimes against humanity, war crimes and other crimes under international law] of the  Penal Code [as amended in 2007] … or an act mentioned in article … 295-1 [on torture] of the  Penal Code [as amended in 1996] may be prosecuted and tried under the provisions of Senegalese law or applying in Senegal, if he is under the jurisdiction of Senegal or if a victim resides on the territory of the Republic of Senegal, or if the Government secures that person’s extradition.
The explanatory statement introducing the 2007 Law amending the Criminal Procedure Code states:
The principle of territorial sovereignty, according to which every State has the right to exercise exclusive jurisdiction over its nationals and over foreigners living on its territory, is broken down by the rule of “universal jurisdiction”. This extraterritorial jurisdiction is dictated by Senegal’s obligation to repress grave breaches as defined by the 1949 Geneva Conventions and their  Additional Protocol I and by other international legal instruments, as well as acts of terrorism[,] irrespective of where the breach was committed [and] the nationality of its author, providing that he or the victim reside[s] in Senegal.
Senegal’s Law on the establishment of the Extraordinary African Chambers within the Senegalese courts (2012) states:
Our country has signed an agreement with the African Union concerning the creation of the Extraordinary African Chambers within the Senegalese courts for the prosecution of international crimes committed in Chad during the period 7 June 1982 to 1 December 1990.
Since the African Chambers must be integrated into the existing court system, the Government of Senegal proposes the amendment of Article 1 of Law 84-19 of 2 February 1984 [governing the judicial system] to make this incorporation possible.
These courts, created by the agreement between the African Union and Senegal, are charged with investigating and deciding upon the international crimes committed in Chad between 7 June 1982 and 1 December 1990 and shall be automatically dissolved at the end of their mission. The composition and the operating procedures of these chambers are set out in their statute.
Senegal’s Law Authorizing Ratification of the 2012 Agreement on the Establishment of the African Extraordinary Chambers (2012) states:
Desiring to fully demonstrate the respect it has consistently shown for its international commitments since independence, Senegal has undertaken to organize the trial for crimes and serious violations of international law committed on the territory of Chad during the period 7 June 1982 to 1 December 1990.
The obligation for our country to prosecute and try the person or persons responsible for the above-mentioned breaches of international law derives from Article 7 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, ratified by Senegal on 21 August 1986. It was reiterated in Resolutions Doc Assembly/AU/3VID and Doc Assembly/AU/Dec.40 (XVIII), adopted by the African Union Conference of Heads of State and Governments on, respectively, 2 July 2006 in Banjul and 31 January 2012 in Addis Ababa.
In order to assemble the right conditions for organizing the trial, and taking into account the decision on this matter of the ECOWAS [Economic Community of West African States] Court of Justice on 18 November 2010, the Government of the Republic of Senegal and the African Union signed an Agreement in Dakar on 22 August 2012 concerning the creation of the Extraordinary African Chambers within the Senegalese court system.
This legal instrument should enable our country to tangibly honour our international commitments by facilitating the prosecution of the alleged perpetrators of the aforementioned violations, within the framework of a just and fair trial, taking duly into account the concerns of victims, with strict respect for the right of the defence, in accordance with relevant international requirements.
The Government is therefore committed, within the framework of this Agreement, to adopt the necessary laws, regulations and administrative measures for the purpose of putting in place the aforementioned judicial institutions.
The success of this exercise will surely represent a significant contribution by Senegal to the fight against impunity in the world.
In the Hissène Habré case
in 2000, Senegal’s Dakar Regional Court indicted Chad’s exiled former president on charges of torture and crimes against humanity, and placed him under house arrest.
In 2001, however, the Court of Cassation confirmed the ruling of the Dakar Court of Appeal that Habré could not be tried in Senegal for crimes allegedly committed in Chad. It stated that Senegalese courts lacked jurisdiction to prosecute and try aliens present on the territory of Senegal who had allegedly committed acts of torture outside Senegal. The decision was based on the absence of any legislative measure establishing such jurisdiction over torture-related offences, as required by Article 5(2) of the 1984 Convention against Torture, to which Senegal was a party.
In 2001, during a meeting of the UN Commission on Human Rights, Senegal, in exercise of its right to reply, stated with regard to the Hissène Habré case:
Mr. Habré, who was in Senegal as a refugee, had been arrested and charged on 3 February 2000. He had been released, however, and the prosecution had not been pursued because it was found that the Senegalese courts were not competent to deal with the matter. The acts with which Mr. Habré was charged had been committed abroad and [the relevant provision of Senegalese criminal law] did not apply when an act was committed by a foreigner abroad, except where certain conditions were fulfilled. In the case in question, none of those conditions was fulfilled … The case in question did not … fall under article 5, paragraph 1, of [the 1984 Convention against Torture]. The  Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity … was inapplicable to Senegal, which had not ratified it. The Indictment Division had withdrawn the prosecution on the basis of [the relevant provisions of Senegalese criminal law] according to which the national courts were not competent. That judgement had been confirmed by the Court of Cassation.
In 2011, in its third periodic report to the Committee against Torture, Senegal stated:
I. Information on new measures and new developments relating to the implementation of the  Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]
Article 2 of the Convention
93. New legislative measures have been adopted to strengthen the law in this respect:
- Act No. 2007-02 of 12 February 2007 incorporated articles 431-1, 431-2, 431-3, 431-4 and 431-5 into the [1965 Penal] Code. These articles deal with the crime of genocide, crimes against humanity, war crimes and other crimes under international law, such as those covered by the Hague Conventions of 1954, 1976 and 1980, which had not previously been specified in the Code.
Article 5 of the Convention
114. By adopting Act No. 2007-05 of 12 February 2007, which amends the  Code of Criminal Procedure, the State of Senegal has taken the necessary measures to establish the competency of the Senegalese criminal courts to try all acts of torture in cases where the alleged offenders are present in Senegalese territory if no order for their extradition has been issued.
115. In line with this law, any foreigner who has been accused of committing or aiding in the commission of any of the crimes mentioned in article 295-1 of the [Penal] Code [on the prohibition of torture and the acts that qualify as such] outside Senegalese territory may be tried under Senegalese law or laws applicable in Senegal if he or she is under Senegalese jurisdiction or if one of the victims resides in the territory of Senegal, or if the Government secures the alleged offender’s extradition.
II. Implementation of the conclusions and recommendations of the Committee
A. Compliance with the Committee’s conclusions and recommendations
178. The Committee had identified the following factors and difficulties impeding the application of the provisions of the Convention:
- At the normative level, the Committee notes the absence of regulations to ensure the effective implementation of the Convention
182. [T]here are some provisions of the Convention that, despite their immediate applicability, require the State party to adopt prior legislative or regulatory measures. Indeed, these provisions cannot be effectively implemented in the absence of measures to enforce them under domestic law. This was what led the Senegalese Court of Cassation to rule that no procedural text confers universal jurisdiction upon Senegalese courts to try presumed perpetrators of or accomplices to acts of torture who are found on Senegalese territory when those acts have been committed by foreigners outside Senegal.
183. Senegal has found a fitting solution to this problem by amending its legislation and incorporating certain provisions into the Code of Criminal Procedure. The universal jurisdiction of Senegalese courts regarding acts of torture is now recognized. (The aforementioned legislative reforms have been set out in extenso in the first part of this report.)
B. Compliance with the Committee’s decision concerning communication No. 181/2001
Recapitulation of facts and procedures
237. Mr. Hissène Habré, who was the President of the Republic of Chad from 1982 until 1990, was ousted on 1 December 1990. Following a stay in Cameroon, he moved to Senegal, where he has been ever since.
238. In January 2000, … and others submitted a complaint together with an application for indemnification to the senior examining judge of the Dakar special regional court …
239. On 3 February 2000, the senior examining judge indicted Mr. Hissène Habré …
241. On 4 July 2001, the Indictment Division dismissed the charges, thereby putting an end to the legal proceedings against him, on the grounds that the judge dealing with the case lacked jurisdiction.
242. On 20 November 2001, the Court of Cassation rejected the appeal lodged by the complainants on 7 July 2001 against the Indictment Division’s ruling of 4 July 2001, thus reaffirming that decision.
243. The Court of Cassation advanced the following reasoning for its decision:
Article 5, paragraph 2, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on 10 December 1984, provides that each State party shall take such measures as may be necessary to establish its jurisdiction over the offences set out in article 4 in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him or her;
Consequently, article 79 of the Constitution cannot be applied since the implementation of the Convention requires Senegal to adopt prior legislative measures;
No procedural text confers universal jurisdiction upon Senegalese courts to try presumed perpetrators of or accomplices to acts covered by the legislation of 28 August 1996, which aligned Senegalese law with article 4 of the Convention, in cases where such persons are found on Senegalese territory if the acts in question were committed outside Senegal.
244. Subsequently, the victims brought the same case before the Belgian courts. On 19 September 2005, the Belgian examining judge, after an investigation that lasted for years, issued an arrest warrant for Mr. Habré. On the same day, Belgium sent an extradition request to Senegal.
245. On 25 November 2005, the Indictment Division of the Dakar Court of Appeal, in response to the request to extradite Mr. Hissène Habré to Belgium, concluded that it was not competent to do so for the following reasons.
246. “Article 101 of the Constitution of Senegal and the High Court of Justice Organization Act of 14 February 2002 instituted exceptional legal proceedings in respect of any proceedings against the President of the Republic.
247. The Indictment Division, as an ordinary court, cannot extend its jurisdiction to investigating and prosecuting a Head of State for acts allegedly committed during his or her time in office.
248. Therefore, the lack of jurisdiction must also exist in respect of the extradition request, since legal proceedings can only be instituted after basic inquiries have been made, which include having the accused appear in court and be questioned. … Mr. Hissène Habré’s immunity does not exempt him from criminal responsibility, however, but is merely procedural in nature, as in the case of the arrest warrant issued for Yoro Abdoulaye Ndombassi on 14 February 2002 by the International Court of Justice in the case involving the Democratic Republic of the Congo and Belgium.
249. This immunity remains in place even after a president ceases to hold office, regardless of his or her nationality or of the existence of any mutual assistance treaty.
250. It may be inferred from these comments that the Indictment Division lacks jurisdiction over cases concerning the legality of proceedings against a Head of State or the validity of an arrest warrant issued for a Head of State.”
251. In the light of that decision, Senegal referred the case to the African Union, which, on 2 July 2006, pursuant to the recommendations of a committee of eminent African jurists appointed in January 2006, requested Senegal to try Mr. Hissène Habré on behalf of Africa.
252. The request of the African Union was set forth in its decision 127(VII) (Doc.Assembly/AU/3), which states that it:
the Hissène Habré case as falling within the competence of the African Union
- Mandates the Republic of Senegal to prosecute and ensure that Mr. Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for [a]
- Further mandates the Chairperson of the Union, in consultation with the Chairperson of the Commission, to provide Senegal with the necessary assistance for the effective conduct of the trial
- Requests all the Member States to cooperate with the Government of Senegal on this matter
- Calls upon the international community to avail its support to the Government of Senegal”
253. Prior to the African Union’s adoption of this position, the complainants who had referred the case to the senior examining judge of the Dakar special regional court had, on 18 April 2001, also submitted a complaint to the Committee against Torture under article 22, paragraph 7, of the Convention against Torture. The Committee submitted its recommendations to the Government of Senegal on 17 May 2006.
259. In addition, the Committee, acting under article 22, paragraph 7, of the Convention, found that “the State party has violated article 5, paragraph 2, and article 7 of the Convention”.
260. It also noted that: “In accordance with article 5, paragraph 2, of the Convention, the State party is obliged to adopt the necessary measures, including legislative measures, to establish its jurisdiction over the acts referred to in the present communication.”
264. The State of Senegal has taken note of the decision.
265. Following the decision of the African Union, President Abdoulaye Wade made a solemn vow before his peers to have Mr. Hissène Habré prosecuted in Senegal.
266. This strong political commitment reaffirms the legal obligations entailed by the Convention against Torture, which Senegal ratified on 21 August 1987 and which is the legal basis for the proceedings against Mr. Hissène Habré.
267. On 23 November 2006, the Minister of Justice set up a committee to examine the matter and to propose the necessary legislative and institutional reforms.
268. Furthermore, the President of the Republic reiterated this undertaking at the official inauguration of the new judicial year on 10 January 2007.
269. All the necessary substantive and procedural legislative amendments have now been made to give full effect to the provisions of the Convention and to ensure that Mr. Hissène Habré can have a just, fair and speedy trial in Senegalese courts presided over by Senegalese judges.
Legislative reforms (see the first part of the present report for details)
270. Various pieces of legislation have been passed which amend, introduce and repeal certain provisions of the [Penal] Code and the Code of Criminal Procedure.
271. Act No. 2007-02 of 12 February 2007 incorporated articles 431-1, 431-2, 431-3, 431-4 and 431-5 into our [Penal] Code. These articles deal with genocide, crimes against humanity, war crimes and other crimes under international law, such as those mentioned in the Hague Conventions of 1954, 1976 and 1980, which had not previously been specified in the Code. …
273. Article 669 of the Code of Criminal Procedure has been amended to read as follows: “Any foreign national who, outside the territory of the Senegal, is accused of perpetrating or acting as an accomplice to one of the crimes mentioned in articles 431-1 to 431-5 or a crime or offence mentioned in articles 279-1 to 279-3 or 295 of the [Penal] Code may be tried under Senegalese law or laws applying in Senegal, or if the Government secures that person’s extradition.”