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

196 Chapter 8
crimes allegedly committed by Eichmann occurred before the coming into
existence of the state of Israel.
Before Habré, Augusto Pinochet was the first former head of state to
be prosecuted in a domestic court for human rights violations allegedly
committed while serving as head of state. Proceedings were instituted
against Pinochet in the United Kingdom for the crimes he aledgedly
committed while President of Chile from 1973 to 1990. These proceedings
were terminated, based on the fact that Pinochet was deemed unfit to stand
trial. The case was a landmark case on the immunity of former heads of
state. 48 The Habré case has caused a state of confusion by different fora:
the ICJ, Senegalese courts, UN Committee Against Torture, the
ECOWAS Court, and Belgium courts. These institutions have given
conflicting positions on retroatctivity and universal jurisdiction in respect
of Habré.
5 Conclusion
Unpunished human rights violations in other parts of Africa permanently
remind one that the trial of Hissène Habré in Senegal is not an end but
rather a beginning and that it will contribute to the development of
international law in Africa. Particularly, it will unveil the duty to prosecute
or extradite suspects of international crimes under customary international
law. It is also likely to echo the sentiment that no person, including a
former state official, is above the law. Further, the trial is likely to explain
that international crimes are punishable regardless of the defences
regarding the non-retroactivity of law and punishment. Importantly, the
trial will shed light on the principles of universal jurisdiction, territoriality
and passive nationality, and will re-state the principle that the immunity of
a state official is not a defence in international criminal justice.
The trial of Habré in Senegal has also helped the African Court on
Human and Peoples’ Rights to give its position on the admissibility of
cases before that Court pursuant to articles 5(3) and 34(6) of the Protocol
establishing the Court. Further, the case has enabled Senegal to enact laws
that enforce the principles of international criminal law as found in the
Constitution. Article 9 of the Constitution of Senegal provides for
universal jurisdiction over genocide, war crimes and crimes against
humanity committed in the past and outside the territory of Senegal.
48 The House of Lords which examined the issue of Pinochet’s immunity as former head
of state was of the opinion that ‘a former head of state may only benefit from immunity
for acts carried out in the exercise of legitimate state functions, which cannot include
international crimes such as torture’.