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

The trial of Hissène Habré in Senegal 195
international crimes such as torture arose from the fact that torture violate
the domestic legal order of a state as well as the international legal order as
a whole. 45
In practice, international law distinguishes two types of universal
jurisdiction. On the one hand there is an absolute or pure universal
jurisdiction which arises when a state wants to assert jurisdiction over an
international crime although the suspect is not present on its territory. On
the other hand, the conditional universal jurisdiction which is exercised
when the suspect is already on the territory of the state asserting
jurisdiction exists. Both pure universal jurisdiction and conditional
jurisdiction are subject to controvercy. If pure universal jurisdiction is
found in many cases to be a violation of the jurisdictional principle, 46
conditional jurisdiction have consistently raised controvercy when a state
competent to have recourse to it fails to do so. As far as pure universal
jurisdiction is concerned, its implementation is confronted with practical
challenges namely, the fact that it does create an obligation on the side of
the territory or nation to assist in the investigations, provide evidence or
extradite the suspects. 47
Today, with the emergence of human rights instruments such as CAT
whereby states agree between themselves to pass jurisdiction onto one
another, the problem with universal jurisdiction tends to be rather with the
failure of states to exercise jurisdiction over suspects of international
crimes found in their territories than with states seeking to exercise
universal jurisdiction for crimes not committed in their territories.
The trial of Hissène Habré in Senegal would be a landmark case
regarding universal jurisdiction in that it would be the first time an African
state is compelled by virtue of international law to exercise jurisdiction
over a person suspected of international crimes. If for some reason Hissène
Habré fails to appear before a court for the human violations he is
suspected of having committed, the fact that Senegal was compelled to
confer jurisdiction upon its courts over the matter is already a situation that
is a first of its kind in the history of international law.
Although the Eichmann case previously referred to is an interesting
case in the international criminal law literature, care must be taken,
however, to allude to it as a universal jurisdiction case. This is because the
45 R Higgins Problems and processes: International law and how we use it (1994) 56-63; H
Jallow and F Bensouda ‘International criminal law in an African context’ in M du
Plessis African guide to international criminal justice Institute for Security Studies (2008)
16.
46 J Dugard International law: A South African perspective (2005) 157; Roitman Rosenmann v
47
Spain CAT Communication 176/2000, 30 April 2002, para 6.7.
B Broomhall International justice and the International Criminal Court: Between state
sovereignty and the rule of law (2003) 119-23.