The Habré trial was the first in which a court in Africa prosecuted a suspect under universal jurisdiction, creating a precedent for universal competence and for future prosecutions of international crimes in African courts. Incorporating universal jurisdiction into national law allows a state to exercise jurisdiction over persons accused of certain especially egregious crimes, regardless of where they were committed or the nationality of the accused and the victims. The principle derives from the claim that certain crimes are so grave –crimes against humanity, genocide, war crimes, torture and the like– as to be deemed offences against the humankind. Applying this logic, the universally egregious nature of the harm done would necessarily impose a moral duty on all states to prosecute the perpetrators, while the universally felt nature of the harm would vest all states with a shared source of judicial authority to bring such prosecutions.
The principle of universal jurisdiction was introduced into Senegalese law in February 2012 (Act No. 2007- 05), thus amending the Code of Criminal Procedure to allow the prosecution in a domestic court of any foreign national accused of committing certain specified grave crimes outside Senegalese territory. The Act goes beyond genocide, crimes against humanity and war crimes extends to include acts of torture and crimes against the security of the state, such as terrorism, attacks, plots and other related offences.
Adopting the principle of universal jurisdiction allowed Senegal’s courts to exercise jurisdiction in the Habré trial, despite his being a foreign national whose crimes had been committed outside the country’s borders. In addition to refusing to recognise this jurisdiction, Habré’s counsel voiced the further objection that his client could not be charged with crimes that had not existed under Senegalese law at the time they had been committed. The Senegalese Constitution, however, provides that any international treaty ratified by Senegal can be directly applied in its domestic courts. Since Senegal had ratified various instruments of international customary law which defined Habré’s alleged offences as international crimes before they had been committed, these instruments were applicable at the EAC. These included the Torture Convention, the four Geneva Conventions and the Genocide Convention, among others.16 The authority to prosecute Habré thus came from applying international customary law, as permitted by the Constitution, in a case established under the principle of universal jurisdiction, thereby giving Senegal the right to try Habré despite his crimes having been committed elsewhere.
Universal jurisdiction offered a path to justice in the Hissène Habré case. It should nonetheless be recalled that establishing the EAC and securing his conviction took fifteen years of advocacy, investigation, litigation and persistence. In that regard, the Habré case is also a lesson in just how difficult it is to bring powerful officials to justice through universal jurisdiction. To the extent that the case can be seen as a model for future prosecutions of international crimes on the African continent, the Habré trial also illustrates that an affordable and efficient regional option, capable of replacing the International Criminal Court, is still a long way off.17