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

190 Chapter 8
It should be noted that the argument of non-retroactivity of criminal law in
relation to Habré was also raised before the Court of Justice of the
Economic Community of West African States (ECOWAS Court). 28 The
ECOWAS Court found Senegal in violation of the principle of nonrectroativity
of laws and punishment under article 7(2) of the African
Charter, article 8 of the Universal Declaration of Human Rights and article
3(4) of the ICCPR. The ECOWAS Court’s decision has the effect that
Senegal should not try Habré unless he can be tried before an international
tribunal.
As far as the principle of non retroactivity is concerned, international
law does not accept the application of the principle in circumstances where
the crimes were prohibited by customary international law at the time of
their commission. The Eichmann case, a well-known example of a
domestic court exercising jurisdiction over international crimes,
constitutes a very interesting jurisprudence on the legal obligation of states
to prosecute international crimes suspects, no matter the fact that the crime
is not punishable under the domestic legislation of the concerned state. 29
Adolf Eichmann was abducted from Argentina by Israeli secret police
in 1960 and taken to Israel to be prosecuted under Israeli and Nazi
Collaborators Punishment Law of 1950, a law similar to the 1948
Convention on the Prevention and Punishment of the Crime of Genocide.
Eichmann strongly objected to the retroactive application of the
Punishment Law but his objection was dismissed by both the District
Court of Jerusalem and the Supreme Court of Israel on the grounds that
the crimes with which Eichmann was charged were prohibited under
international law at the time they were committed. 30
Contrary to the decision of the ECOWAS Court, Senegal may have
not violated the principle of non-retroactivity of criminal law by amending
its legislation in order to criminalise acts of torture even though the reasons
for the amendment should be researched elsewhere than in the desire for
creating the legal framework for the trial of Hissène Habré. In fact, as
monist state where international treaties are directly part of the domestic
legal order, 31 Senegal did not need to amend its legislation to incorporate
acts of torture before prosecuting Hissène Habré. Furthermore, Senegalese
27
declaration accepting the competence of the Court to receive petitions filed by
individuals or nongovernmental organisations (NGOs). The article further declares that
the Court shall not examine communications filed by individuals or NGOs against a
state that has not made such declaration. Senegal did not make the declaration at the
time the communication was filed by Mr Yogogombaye.
28 The argument was raised in a communication filed at the time, by Habré himself.
29
Supreme Court of Israel, Attorney General v Eichmann [1961] 36 ILR277, 288-83 (1968).
30 As above.
31 Art 98 Senegalese Constitution: ‘international treaties or agreements regularly ratified
or approved have on their publication, an authority superior to that of the national
laws.’