The Politics of Prosecutions under the Convention against Torture

Recent incidents suggest that prosecutions under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("Convention Against Torture")1 are highly vulnerable to political pressures brought to bear by the potential defendant and his state. The dismissal of charges against former Chadian dictator Hissene Habre in Senegal and the detention and release of Peruvian Major Tomas Ricardo Anderson Kohatsu in the United States indicate that the successful prosecution of Augusto Pinochet under the Convention Against Torture was essentially an anomaly rather than the beginning of a new trend. The prosecution of Pinochet established the precedent that former-Head-of-- State immunity, and by extension all diplomatic immunities, do not apply to acts of torture.2 The decision was a concrete application of Article 5 of the Convention Against Torture, which requires nations to extradite or prosecute alleged torturers within their boundaries regardless of where the alleged crimes took place.3 The decision was widely hailed as one that would put fear into dictators around the world;4 however, it has done little to influence countries to prosecute individuals under the Convention Against Torture.5 Subsequent prosecutions that were begun ended in failure as the result of political interference in the judicial process. Hissene Habre, dictator of Chad from 1982 to 1990, has been implicated in 40,000 murders and a large-scale pattern of torture. He was indicted in Senegal in February 2000 on charges of torture.6 Far from advocating on Habre's behalf, Chad (now ruled by Habre's former army chief of staff) lent its support to the prosecution of other members of Habre's regime still in Chad.7 Although Senegal had been known for its independent judiciary, the charges against Habre were dismissed in July 2000, and journalists generally agree that the dismissal was due to high-level tampering.8 While the case was under consideration, a panel headed by the president of Senegal removed the investigating judge.9 The President then promoted the head of the Indicting Chamber, the body that issues the actual indictments, and it was this judge who soon after dismissed the case against Habre.10 Moreover, the President appointed Habre's lawyer as a paid consultant to the government.11 Commentators have suggested that this interference may have been due to Habre's connections within Senegal's wealthy elite, and the well-financed lobbying and media campaign he ran while under investigation12 that characterized him as an African who was being persecuted by "reactionary and neocolonial French circles."13 Senegal dismissed the charges against Habre on the grounds that his crimes were not committed in Senegal and that the applicable statute of limitations had run.14 However, Senegal signed and ratified the Convention Against Torture in 1986.(15) This treaty clearly grants jurisdiction under Article 5 for "offences in cases where the alleged offender is present in any territory" under the jurisdiction of the prosecuting state, regardless of where the criminal acts took place.16 Moreover, under Senegalese law, the ten-year statute of limitations only began to run in 1990, when Habre was deposed and prosecutions became possible; the charges against Habre were filed within this period.17 Although of dubious value as precedent because it ignored rather than interpreted the Convention Against Torture, the decision on its face did not challenge the Pinochet holding. The Senegalese court did not reach the questions of Head-of-- State immunity or dual criminality which were so central to the Pinochet prosecution, but rested instead on issues of territorial jurisdiction and the statute of limitations. The flimsy nature of the pretexts relied upon to dismiss the charges against Habre might suggest that the court did not avoid explicitly overruling Pinochet because it considered it too powerful to change. …