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

The trial of Hissène Habré in Senegal 193
of a specific treaty. That trend was outlined in the Lotus case where the ICJ
stated that: 39
The first and foremost restriction imposed by international law upon a State is
that – failing the existence of a permissive rule to the contrary – it may not
exercise its power in any form in the territory of another State. In this sense
jurisdiction is certainly territorial; it cannot be exercised by a State outside its
territory …
In contrast to other international crimes, the prosecution of which depends
on the good will of interested states, torture is one of the rare international
crimes over which a number of states have decided to pass jurisdiction to
each other, creating an obligation for themselves to prosecute or extradite
individuals suspected of torture found in their territories. The adoption of
the CAT in 1984 opened a new page in the evolution of international law,
in that it was the first international human rights instrument to attempt a
transformation of the universal jurisdiction principle from a non-binding
principle to a binding norm. 40
The Habré case has indeed provided a golden opportunity to test the
principle of aut dedere aut punire, encapsulated under article 7 paragraph 1
of CAT. The article alluded to the very raison d’être of CAT: before the
adoption of the Convention, torture was prohibited both by customary
international law and domestic legislation yet torture suspects could
escape justice by moving from one place to another. One of the main
objectives of CAT was therefore to establish universal jurisdiction over acts
of torture so that they could be prosecuted no matter where suspects found
themselves. Despite the fact that acts of torture amounting to crimes
against humanity 41 can today fall under the jurisdiction of the ICC, 42 CAT
remains of particular importance in the fight against impunity for
egregious human rights violations, specially when only a certain number
of crimes fall under the competence of the ICC.
39
SS Lotus (France v Turkey) (1927) PCIJ Rep Ser A, 10.
40 Art 7 CAT obligates state parties to either prosecute suspects of torture found in their
territories or extradite them to another state willing to prosecute them. CAT was
preceded by international instruments which, notwithstanding their nonbinding
character, serve as guiding principles to national and international bodies. These
instruments are, among others, the Declaration on the Protection of All Persons from
being subjected to Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment; the Standard Minimum Rules for the Treatment of Prisoners (1977); and
the Principles on the Protection of Persons under Detention or Imprisonment.
41
In the Akayesu case, for example, the International Tribunal for Rwanda established that
torture can constitute a crime against humanity if is perpetrated as part of a widespread
or systematic attack against the civilian population on discriminatory grounds; see
Prosecutor v Akayesu (Case ICTR-1996-4-T) Judgment 2 September 1998 (ICTR Reports,
1998, 44-404).
42 Ideally, the International Criminal Court (ICC) would be the best organ to examine the
Habré case. However, the ICC lacks the temporis jurisdiction to examine the case
because the aledged crimes occurred before the entry into force of the Rome Statute.