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

194 Chapter 8
CAT has played a crucial role in the Habré case through the fact that it
was the legal instrument relied upon by Habré’s victims to argue that the
Senegalese courts were competent to hear their case even if Hissène Habré
was suspected of having committed other international crimes. The
Committee Against Torture ruled that by having failed to take the
necessary steps within a reasonable time to confer universal jurisdiction on
its courts over acts of torture, Senegal had violated CAT. 43 This statement
sounds like a clear criticism of the views expressed by the Dakar Court of
Appeal and the Senegalese Court of Cassation. It is also somewhat contrary
to what the ECOWAS court held on retro-active application of the law in
Senegal.
There is no doubt that CAT is not a self-executing treaty; however,
article 5, paragraph 2 imposes an obligation on states parties to take the
necessary legislative measures in a reasonable time to confer on their
courts universal jurisdiction over acts of torture. Article 5(2) of CAT
should be interpreted as obligating states parties to the Convention to take
not only legislative measures but also practical measures aiming at
ensuring the effective and timely prosecution of any suspect of torture
found in its territory.
The critics of putting Habré on trial in Senegal argue that the case is
directed solely against the former president of Chad because, if real justice
had to be done, Habré should have been prosecuted along with all those
who collaborated closely with him and participated in the alleged human
rights violations. Although these critics raise the relevant question of the
accountability of Habré accomplices, the trial of Habré in Senegal should
be confused with the prosecution of his accomplices. The reason being that
Senegal cannot exercise jurisdiction over senior officials of the Habré
administration accused of participation in the human rights abuses because
they are not in Senegalese territory at present. If article 7 of CAT obligates
state parties to either extradite suspects of torture found on their territory
or prosecutes them, it is mainly because jurisdiction is first and foremost a
matter of sovereignty, meaning that a state cannot exercise jurisdiction
over crime suspects living in another state.
4.2 Landmark case on universal jurisdiction
The term universal jurisdiction refers to jurisdiction established over a
crime, regardless of the place it has been committed, the nationality of the
suspect, or of the victim or any other connection between the crime and the
prosecuting state. 44 Universal jurisdiction is limited to specific
international crimes such as war crimes, crimes against humanity and
torture. The idea that universal jurisdiction should be exercised over
43 Committee Against Torture Communication 181/2001, May 2006, paras 9.5 & 9.6.
44 R Cryer et al An introduction to international criminal law and procedure (2007) 44.