UPDATE ON STATUS OF HISSENE HABRE II

C O N F I D E N T I A L SECTION 01 OF 02 DAKAR 000155

SIPDIS

SENSITIVE
SIPDIS

DEPT FOR AF/W, AF/RSA, DRL AND INR/AA

E.O. 12958: DECL: 02/07/2018
TAGS: PGOV PINR KDEM PHUM SG CD
SUBJECT: UPDATE ON STATUS OF HISSENE HABRE II

REF: DAKAR 1966

Classified By: CLASSIFIED BY CHARGE D,AFFAIRES JAY T. SMITH FOR REASONS
1.4 (B) AND (D).


1. (SBU) On January 22, a delegation of judicial experts
from the European Union (EU) concluded a series of
discussions with the Government of Senegal on the ways and
means to prosecute former Chadian President Hissene Habr.
While it seems that the discussions went well and that the
GOS said the right things, it is our assessment that Habre is
unlikely to be tried in Senegal in the near future, if ever.
Senegalese President Abdoulaye Wade will likely prefer to
take the slow route and defer real action to another day.
Moreover, on January 25 the National Assembly ) no doubt
with President Wade,s acquiescence ) failed to approve
legislation that would make it possible for Senegalese courts
to try someone for crimes committed outside of Senegal. End
Summary.

The World Awaits Senegalese Justice
--------------

2. (C) Senegal is slowly being forced into a corner by the
international community and the African Union to put Habre on
trial as soon as possible. Although this matter has been
pending for 18 years due to claims that Senegal neither had
the means nor the legal framework to try Habre, President
Wade only relatively recently announced that Habre would be
put on trial. As a result, he invited a team of judicial
experts from the EU to receive advice on how best to go about
setting up and managing a trial of this magnitude, a first
for Senegal. The team, lead by Bruno Cathala, chief clerk at
the International Criminal Court (ICC),held four days of
discussions with various government agencies.


3. (C) In their briefing to the international diplomatic
community, the EU legal team characterized their meetings as
successful, emphasizing the Senegalese Government,s
cooperation. They met with officials from the Ministries of
Foreign Affairs, Justice, and Finance; the judiciary, as well
as representatives of civil society and Habre,s lawyers. At
the MFA they were told that President Wade wanted this trial
to go forward and that Foreign Minister Cheikh Tidiane Gadio
would go to Addis Abba to discuss the trial with African
Union (AU) officials to explore having a non-Senegalese
magistrate serve as one of the judges. According to judicial
officials, finances were needed to build a new courthouse to
conduct the trial. More importantly, articles 9, 62, 92, and
95 of Senegal,s constitution needed to be amended to permit
the modification of the criminal code and grant Senegalese
courts jurisdiction over the crimes and to have this
jurisdiction applied retroactively. Representatives from
civil society underlined the importance of moving quickly to
trial, warning that delays would tarnish Senegal,s image.
Budget analysts from the Ministry of Finance said that it was
vital to determine how much the trial would cost, that each
line item needed to be carefully considered and that who
would pay what must be determined beforehand. The EU team
described the &budget people8 as being serious and speaking
for the GOS.


4. (C) The EU legal team leader Cathala then identified a
number outstanding issues, including the timeline of the
trial, putting measures in place to protect the witnesses,
security at the courthouse, support and training for the
judges, the appointment of a single Senegalese interlocutor
with the full authority to manage Habre,s trial, the method
the GOS will use to disseminate information about the trial,
and the budget. President Wade has been quick to emphasize
that this will be a Senegalese trial, presided over by
Senegalese judges. Cathala also admitted that the
outstanding problems are numerous and complex enough that he
does not expect the trial to begin until at least 2009. In
the meanwhile, the GOS can use any number of avenues to delay
the trial. For example, Cathala mentioned that the
Senegalese judicial authorities thought that each witness
needed to be allocated 30 hours for depositions whereas he
thinks that four is more than enough for a case of this kind.


Establishing Jurisdiction
--------------


5. (C) In spite of Cathala,s optimism, on January 26 the
National Assembly rejected a bill to amend Senegal,s
constitution that would make it possible for Senegalese
courts to try someone for crimes committed outside of
Senegal. Without such legislation, Habre cannot be put on
trial. The leader of the opposition to the proposed

DAKAR 00000155 002 OF 002


amendment, Deputy El Hadj Diouf, who served as one of
Habre,s lawyers before becoming a deputy, argued that
passage of the bill would make any law in Senegal retroactive
and that this would plunge the country into chaos. However,
given that very little happens in the National Assembly
without President Wade,s blessing, it is all but certain
that he orchestrated the vote.

Comment and Analysis
--------------


6. (C) While President Wade has publicly stated that he wants
this trial to occur it is our analysis that he will be
content to let delays drag out if they ensure that the trial
does not happen under his watch. As an avid promoter of
pan-Africanism, President Wade recently lent his unequivocal
support to Zimbabwean President Robert Mugabe during an AU/EU
summit in Lisbon. This trial, while having the support of
the AU, would set what many African leaders would consider a
dangerous precedent; any number of African leaders could one
day find themselves in the docket. The aging Wade is
unlikely to be willing to go down in history as the first
African president to put another one on trial. Tellingly,
the National Assembly -- which is completely controlled by
the president and his allies and typically rubber stamps his
every desire -- rejected a bill that would make it possible
to try Habre.


7. (C) Another key problem remains the carrot and stick.
While the EU is dishing out plenty of carrots, such as
agreeing to support the construction of a Judicial Center and
training for judges, the stick does not exist. Senegal does
not fear that the United States or the EU will withhold
financial assistance, development aid, or threaten other
funding if this trial does not go forward. Therefore,
President Wade does not perceive that he has anything to lose
if Senegal fails to put Habre on trial.


8. (C) Finally, Habre, who is not in jail or under house
arrest, continues to enjoy the support of many influential
political, legal and religious personalities. In addition to
Deputy Diouf, Habre enjoys the support of Minister of Mines
and Industry Madicke Niang and former Minister of Justice
Doudou Ndoye, both of whom also have served on his legal team
and is close friends with the current Minister of Justice
Cheikh Tidiane Sy. Moreover,
Habre is a member of the powerful Tidjani Muslim brotherhood
which has considerable influence in Senegal. End Comment and
Analysis.


9. (U) Visit Embassy Dakar,s SIPRNET website at
http://www.state.sgov.gov/p/af/dakar.
SMITH