ASIL Insights

On February 3, 2000, a court in Senegal indicted Hissène Habré, the head of state in Chad from 1982 to 1990, for presiding over a pattern of torture during the period of his rule in Chad.  Habré fled from Chad to Senegal after being overthrown in 1990.  He has lived in Senegal since then. 

The case is similar to, but not the same as, the proceedings in the United Kingdom aimed at the extradition of former Chilean head of state Augusto Pinochet to Spain for prosecution on charges of presiding over systematic torture in Chile while he was in power there. 

One difference is that the indictment in Senegal is aimed at prosecution in Senegal, not extradition.  Thus there are no extradition treaty requirements to be met.  Another difference has to do with the dates on which Senegal and Chad became parties to the multilateral treaty that makes torture a crime under international law, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Under that convention, any state (country) where the alleged torturer is present must either submit the case for prosecution in its courts or extradite the accused. The convention entered into force in June 1987.  Senegal has been a party to it from then on, but Chad did not become a party until June 1995.  The question arises whether Habré could legitimately be prosecuted for acts of torture committed in Chad before one or the other of those dates.

A head of state is normally entitled to immunity from prosecution anywhere, even after he or she is no longer the head of state.  The British House of Lords in the Pinochet case faced the question whether that immunity extends to such universally condemned international crimes as torture committed (or presided over) during the time the person was the head of state.  It answered the question in the negative, but held that under British law, Pinochet could be extradited only for torture committed in Chile after December 8, 1988, the date on which the Convention against Torture became effective for the U.K.  (It had already entered into force for Chile and Spain at that point.)  According to the House of Lords, only then did Pinochet lose the immunity from prosecution he enjoyed as a former head of state, since only at that point did his role in the torture in Chile become an international crime for purposes of British law as well as of international law. 

If the courts of Senegal were to take a similar approach, Habré could be denied head of state immunity and convicted of torture, but only as to acts committed after June 1987 at the earliest.  But they might go further and hold that since Chad became a party to the Convention against Torture only in June 1995, and since by then Habré was no longer in power, to apply the Convention's standards against him for conduct while he was head of state would be equivalent to applying an ex post facto law stripping him of his immunity for conduct not unlawful when and where it was committed, and he could not legitimately be convicted at all.  The counter argument would be that official torture was universally condemned as a moral outrage even before the Convention against Torture was signed, so much so that it had achieved the level of a peremptory norm of international law-and an international crime-by the time Habré took control of Chad or in any event before the torture there ended.  (A peremptory norm is a rule of such stature and wide acceptance that no country may opt out of it.  The rule against genocide is an example.)  Thus the fact that no treaty in force for Chad expressly made torture an international crime before 1995 might not preclude legitimate prosecution.  Habré, in other words, might not be allowed to prevail by claiming that conduct in violation of an existing peremptory norm should be immune from prosecution after he is no longer the head of state, wherever he might be found. 

Addendum to: The Indictment in Senegal of the Former Chad Head of State
By Frederic L. Kirgis
April 2001

According to news reports, the highest court in Senegal has held in March 2001 that Hissène Habré, the former head of state of Chad, cannot be prosecuted in Senegal for torture that occurred outside Senegal.

About the Author: 
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee      University School of Law. He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law. 
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ASIL Insights are intended to identify international law issues in order to provide a basis for informed discussion of current events. They are not intended to be definitive, and they do not necessarily reflect the views of all members of The American Society of International Law. The Society itself takes no position on these issues.