Prosecuting International Crimes in Africa - PULP - University of ...

The trial of Hissène Habré in Senegal 191
courts also had the possibility of using the passive personality principle 32
to exercise jurisdiction over Hissène Habré since two Senegalese nationals
are among Habré’s victims. Ultimately, the position of the Dakar Court of
Appeal and the Senegalese Court of Cassation according to which Senegal
lacked jurisdiction to prosecute Habré on the ground that it had not
incorporated CAT into its domestic legislation was a mockery of
international law.
3.2 The Belgian extradition request
A number of Habré’s victims filed a case against him before a Belgian court
of first instance, immediately when the Senegalese Court of Appeal
declared that Senegal did not have competence to prosecute Habré. 33 The
complaint was filed under a law on universal jurisdiction adopted by
Belgium in 1993. 34 In its original form, the Belgian law on universal
jurisdiction allowed Belgian courts to prosecute serious international
crimes, such as genocide, crimes against humanity, or war crimes,
regardless of the nationality of the victim and the place where the crimes
were committed. 35
After a four- year-long investigation, Judge Fransen from the Belgian
Court of First Instance issued an international arrest warrant against
Hissène Habré for crimes against humanity, war crimes, and acts of torture
and serious violations of international humanitarian law. 36 On the same
day, Belgium asked for Habré’s extradition from Senegal.
Seized with the Belgian extradition request, the Indicting Chamber of
the Court of Appeals of Dakar ruled that Hissène Habré enjoys immunity
from jurisdiction pursuant to the Arrest warrant decision by the
32 The passive personality principle allows a state to exercise jurisdiction over a person
suspected of having committed an offence abroad which harm one of more of its
nationals.
33 There were 21 victims and three of them had Belgian nationality.
34 The Belgian law on universal jurisdiction was not yet amended at the time and the
complaint was declared admissible. From 26 February to 7 March 2002, Fransen J
conducted investigations in Chad during which he interviewed witnesses, Habré-era
officials, toured former grave sites and visited five jails where the DDS had
systematically tortured prisoners. See Amnesty International (n 2 above) 6.
35 The Belgian Act, named the Act Concerning the punishment of Grave Breaches of
International Humanitarian Law (the law on universal jurisdiction), adopted on 16
June 1993, was repealed following the position adopted by the International Court of
Justice in the Arrest warrant case and new legislation was promulgated in its place.
Under the new legislation, Belgian courts have jurisdiction only for international crimes
if the suspect is Belgian or has primary residence in Belgium; or if the victim is Belgian
or has lived in Belgium for at least three years at the time the crimes were committed.
Most cases filed under the original Belgian law on universal jurisdiction, including the
case filed against Mr Yerodia, were dismissed. However, the Habré case was maintained
as it complied with the criteria of a transitory clause contained in the new Belgian
legislation which allows cases in which judicial investigations had already begun and
plaintiffs are Belgian, to proceed.
36 The arrest warrant was issued on 19 September 2005.