A/HRC/4/33
page 13
Hissène Habré resided since he was overthrown by Idris Deby in 1990. Only one week later, the
Senegalese judge Demby Kandji indicted the former dictator as an accomplice to torture and
placed him under house arrest. In July 2000, the Appeals Court quashed the indictment, and in
March 2001, the Court of Cassation confirmed that Senegalese courts were not competent to
establish universal jurisdiction. In April 2001, seven victims of torture lodged a complaint
against Senegal before the United Nations Committee against Torture (CAT), and in the
meantime legal proceedings were also initiated by victims in Belgium. After a long delay caused
by developments in Belgium which led to an amendment of its liberal universal jurisdiction
provisions, an international arrest warrant was finally issued by the Belgian judge Daniel
Fransen in September 2005, and Belgium made an extradition request to Senegal. In November
2005, Hissène Habré was arrested by Senegalese authorities, but the Court of Appeal again
released him, this time on the ground that it had no jurisdiction to rule on the extradition request.
Instead, the Government of Senegal placed him at the disposal of the President of the African
Union. In January 2006, the Assembly of Heads of State and Government of the African Union
decided to set up a Committee of Eminent African Jurists to consider all aspects and implications
of the Habré case and to submit a report to its next session in June 2006. Before the Committee
of Eminent African Jurists prepared its report, CAT, which had been requested by the parties to
delay its proceedings because of the judicial proceedings pending in Belgium, on 17 May 2006
issued a landmark decision on the complaint submitted by seven Chadian torture victims more
than five years before. It found a violation of article 5 (2) on the ground that the Senegalese
authorities had failed to take the legislative measures necessary to establish the legal possibility
for Senegalese courts to exercise universal jurisdiction.8 The Committee also ruled that Senegal
had violated its obligations to prosecute or extradite (aut dedere aut iudicare) in accordance with
article 7.9 In addition, by refusing to comply with the extradition request from Belgium, “the
State party has again failed to perform its obligations under article 7 of the Convention”.10 Most
importantly, the Committee noted that “the obligation to prosecute the alleged perpetrator of acts
of torture does not depend on the prior existence of a request for his extradition”.11 Therefore,
“the State party was obliged to prosecute Hissène Habré for alleged acts of torture unless it could
show that there was not sufficient evidence to prosecute, at least at the time when the
complainants submitted their complaint in January 2000”.12
44.
Indeed, the only alternative to prosecuting an alleged torturer present in its territory is for
a State to extradite him or her, in accordance with the principle aut dedere aut iudicare provided
for in article 7, to the State where the act of torture allegedly was committed (the territorial
8
Op. cit. at note 7, paras. 9.5 and 9.6.
9
Ibid., paras. 9.7-9.9.
10
Ibid., para. 9.11.
11
Ibid., para. 9.7.
12
Ibid., para. 9.8.
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