WHEN THE DUST SETTLES Judicial Responses to Terrorism in the Sahel By Junko Nozawa and Melissa Lefas October 2018 Copyright © 2018 Global Center on Cooperative Security All rights reserved. For permission requests, write to the publisher at: 1101 14th Street NW, Suite 900 Washington, DC 20005 USA DESIGN: Studio You London CONTRIBUTING AUTHORS: Heleine Fouda, Gildas Barbier, Hassane Djibo, Wafi Ougadeye, and El Hadji Malick Sow SUGGESTED CITATION: Junko Nozawa and Melissa Lefas, “When the Dust Settles: Judicial Responses to Terrorism in the Sahel,” Global Center on Cooperative Security, October 2018. globalcenter.org @GlobalCtr WHEN THE DUST SETTLES Judicial Responses to Terrorism in the Sahel By Junko Nozawa and Melissa Lefas October 2018 ABOUT THE AUTHORS JUNKO NOZAWA JUNKO NOZAWA is a Legal Analyst for the Global Center on Cooperative Security, where she supports programming in criminal justice and rule of law, focusing on human rights and judicial responses to terrorism. In the field of international law, she has contrib- uted to the work of the International Criminal Court, regional human rights courts, and nongovernmental organizations. She holds a JD and LLM from Washington University in St. Louis. MELISSA LEFAS MELISSA LEFAS is Director of Criminal Justice and Rule of Law Programs for the Global Center, where she is responsible for overseeing programming and strategic direction for that portfolio. She has spent the previous several years managing Global Center programs throughout East Africa, the Middle East, North Africa, the Sahel, and South Asia with a primary focus on human rights, capacity development, and due process in handling terrorism and related cases. HELEINE FOUDA HELEINE FOUDA served as a research assistant for this project and provided support for the Global Center’s criminal justice and rule of law work. She holds an MA and an advanced certificate in terrorism studies from John Jay College of Criminal Justice. Her research focused on the country overviews and legal frameworks of Burkina Faso, Chad, Mali, Mauritania, Niger, and Senegal. GILDAS BARBIER GILDAS BARBIER is the auxiliary judge at the Criminal Chamber of the Court of Cassation of France. A magistrate since 1998, he advises on terrorism law issues, specializ- ing in criminal procedure matters. HASSANE DJIBO HASSANE DJIBO is a senior judge of second class, occupying the post of counselor at the Criminal Chamber of the Court of Cassation of Niger since 2013. He has been attorney general at the Niamey Court of Appeal and secretary-general of the Ministry of Justice. WAFI OUGADEYE WAFI OUGADEYE is the attorney general at the Supreme Court of Mali. He has been a Supreme Court judge and president of the Extraordinary African Assize Appeal Chamber at the Dakar Court of Appeal, where he sat on the appeal of the case against Hissein Habré. EL HADJI MALICK SOW EL HADJI MALICK SOW is a chamber president at the Supreme Court of Senegal. He has led the Senegalese Human Rights Committee and the UN Working Group on Arbitrary Detention. He is a member of the Committee for the Prevention of Torture in Africa and is the president of the National Anti-Trafficking Unit. ACKNOWLEDGMENTS This report captures the main findings of a project implemented in collaboration with the Association of Francophone Supreme Courts (AHJUCAF), the UN Security Council Counter-Terrorism Committee Executive Directorate, and the UN Office on Drugs and Crime. The authors are grateful for their partnership and expert input in this process, with special thanks to Jean-Paul Jean, secretary-general of AHJUCAF, for his leadership in con- vening the network of supreme court justices to adopt guidelines on the judicial responses to terrorism. The authors thank the numerous officials, criminal justice practitioners, and experts whose insights shared over the course of study visits have informed the recommendations at the centerpiece of this report. Special thanks are extended to the magistrates from the partici- pating jurisdictions who provided their thoughtful contributions, in particular members of the Sahel steering committee currently comprised of Mahamat Abderamane, Gildas Barbier, Hassane Djibo, Ahmed El Mahboubi, Matthias Niamba, Wafi Ougadeye, and El Hadji Malick Sow and advisers Michel Carrié, Serigne Bassirou Guèye, and Pierre Moreau. The authors extend their gratitude to the chief justices who endorsed the recommendations presented in this report: Ousmane Batoko of the Supreme Court of Benin, Thérèse Traoré- Sanou of the Court of Cassation of Burkina Faso, Samir Annour of the Supreme Court of Chad, Bertrand Louvel of the French Court of Cassation, Jean Fahed of the Lebanese Court of Cassation, Nouhoum Tapily of the Supreme Court of Mali, El Houssein Ould Nagi of the Supreme Court of Mauritania, Bouba Mahamane of the Nigerien Court of Cassation, Mamadou Badio Camara of the Supreme Court of Senegal, and Hédi Guediri of the Tunisian Court of Cassation. The authors also would like to thank the following supreme court representatives observing this process: Roger Bilodeau of the Supreme Court of Canada and Abdelkader Chentouf of the Moroccan Court of Cassation. The authors convey their gratitude to the governments of Canada and Japan and the International Organisation of la Francophonie for their financial contributions to the project. The views expressed in this report are those of the authors and do not necessarily reflect the views of the Global Center, its advisory council, its partners, or the donors. ABOUT THIS REPORT This report is part of the project “The Role of Supreme Supreme Court of Senegal, Mamadou Badio Camara, Courts in Countering and Preventing Terrorism as well as Chief Justice Ousmane Batoko of Benin, in the Sahel.” A steering committee comprised of AHJUCAF president. The document was signed in supreme court representatives from Burkina Faso, the presence of their homologues the chief justices of Chad, France, Mali, Mauritania, Niger, and Senegal the Courts of Cassation in France, Bertrand Louvel; in appointed by their chief justices serves as the courts’ Lebanon, Jean Fahed; and in Tunisia, Hédi Guediri, as focal point for counterterrorism efforts, shaping this well as the Supreme Court of Canada Registrar Roger project and participating in its activities. The activ- Bilodeau and Abdelkader Chentouf, the representative ities were led with the support and expertise of the of the chief justice of the Moroccan Court of Cassation. UN Security Council Counter-Terrorism Committee Executive Directorate (CTED), UN Office on Drugs and Crime (UNODC), Association of Francophone Supreme Courts (AHJUCAF), and Global Center on Cooperative Security, with the financial support of the International Organisation of la Francophonie (OIF) and the governments of Canada and Japan. The project brought together around select themes a wide range of criminal justice practitioners committed to the fight against terrorism in the region. National visits allowed judges of the highest courts and appel- late and lower courts to exchange views on questions of law arising from the judicial investigation and man- Closing ceremony for the adoption of the recommendations by the agement of terrorism cases. The project thus provided chief justices. an interactive platform to deepen judges’ understand- ing of comparative and international legal frameworks The recommendations reflect, in a concrete way, the in countering terrorism and served to strengthen the demonstrated commitment of the judiciaries of the judicial network in the region around the supreme Sahel countries to present a unified front against ter- courts comprising the AHJUCAF membership. rorism regarding respect for the rule of law and the National study visits and training seminars were protection of fundamental rights. This commitment held on topics relating to the treatment of minors, in builds on the initiative launched at the AHJUCAF Bamako, Mali (24–26 October 2016); the collection of Congress in Dakar in 2014, with the support of the information by the military, in Niamey, Niger (22–24 OIF and the United Nations. It also comes two years May 2017); the rehabilitation of terrorist offenders, in after the Open Briefing of the UN Counter-Terrorism Nouakchott, Mauritania (10–12 July 2017); and the Committee held in New York on 10 March 2016, qualification of terrorism acts, in Dakar, Senegal (1 during which the justices of supreme courts from March 2018). North Africa, the Middle East, South Asia, and the United States for the first time presented their per- On 2 March 2018, the project culminated in the spectives on the fight against terrorism before the UN unanimous adoption of guidelines on the handling membership. of terrorism cases by the chief justices of the Court of Cassation of Burkina Faso, Thérèse Traoré-Sanou; the This report is organized around the priority issues Supreme Court of Chad, Samir Annour; the Supreme identified by the steering committee and highlights Court of Mali, Nouhoum Tapily; the Supreme Court important points of discussion that were raised over of Mauritania, El Houssein Ould Nagi; the Court the course of the program. The steering committee of Cassation of Niger, Bouba Mahamane; and the representatives from France (Gildas Barbier), Mali (Wafi Ougadeye), Niger (Djibo Hassane), and Senegal issues pertaining to the prevention of and fight against (El Hadji Malick Sow) have lent their technical exper- terrorism, this report seeks to provide an overview of tise to this process and feature as contributors to