CURRENT EVENTS

Non-retroactivity of
Criminal Law
A New Chapter in the Hisse'ne Habre¤ Saga

Valentina Spiga*

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Abstract
In a recent judgment, the Court of Justice of the Economic Community of West
African States held that Senegal cannot use its domestic courts to try Hisse' ne
Habre¤ for allegedly committing, from 1982 to 1990, torture and crimes against hu-
manity in Chad. According to the Court, the legislative changes adopted in 2007
by Senegal, incorporating international crimes into its Penal Code and providing
for extraterritorial jurisdiction of Senegalese courts over international crimes,
would violate the principle of non-retroactivity of criminal law if applied to prosecute
crimes allegedly committed by Habre¤ almost 20 years before. Therefore, an ad hoc
tribunal should be tasked to try Habre¤ on the basis of general principles of law
common to the community of nations. This author argues instead that the relevant
offences were already criminalized, either under national or international law, at
the moment of their alleged commission. Hence, pursuant to Article 15 of the UN
Covenant on Civil and Political Rights, Senegal’s legislative changes, having a mere
jurisdictional function, can be applied retroactively. The Court of Justice was wrong
in holding that there would be a difference between an ad hoc tribunal (which
would be entitled to apply criminal law retroactively) and a Senegalese court
(which would instead not be empowered to do so).

1. Making Hisse'ne Habre¤ Accountable: The Twists and

Turns of National Justice
Justice has already played many of its cards to catch the former Chad dictator
Hisse'ne Habre'. Accused of torture and crimes against humanity for the
bloody campaign against dissident tribes and political opponents in Chad

* PhD Candidate, European University Institute; Member, Editorial Committee of the Journal.
[valentina.spiga@eui.eu].
............................................................................
Journal of International Criminal Justice 9 (2011), 5^23 doi:10.1093/jicj/mqq081
Advance Access publication 23 January 2011
ß Oxford University Press, 2011, All rights reserved. For permissions, please email: journals.permissions@oup.com
6 JICJ 9 (2011), 5^23

carried out by members of the Directorat de Documentation et Securite¤ , Habre¤ is

under nominal arrest in Senegal, where he has spent the last 20 years in exile.
Domestic criminal proceedings accusing him of complicity in torture and
crimes against humanity started in Senegal in early February 2000, but were
eventually dismissed by the Dakar Appeals Court1 ç a decision then con-
firmed by the Senegalese Court of Cassation2 ç on the basis that Senegal
had not adopted the incorporating legislation necessary to implement the rele-
vant international rules criminalizing crimes against humanity, and that the
Code of Criminal Procedure did not include torture among the offences com-
mitted by foreigners outside Senegal over which national courts could assert
jurisdiction.
Universal jurisdiction then took its chances. In the spring of 2002, under
the auspices of the freshly amended legislation on universal jurisdiction,3

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Belgium opened investigations against Habre¤, culminating in the issuance, in
September 2005, of an international arrest warrant for crimes against human-
ity, torture, war crimes and other human rights violations, and of a request
for extradition. Following the Belgian extradition request, Senegal arrested
Habre¤, but an Appeals Chamber overruled the arrest, asserting that the
indictee enjoyed immunity from prosecution as a former Head of State.4
A recommendation by the African Union brought the case back to Dakar
again, asking Senegal to prosecute and ensure that Hisse'ne Habre¤ be tried ‘on
behalf of Africa by a competent Senegalese court with guarantees for fair
trial’.5 Meanwhile, Senegal proceeded to adopt laws incorporating international

1 Chambre d’accusation de la Cour d’appel de Dakar (Criminal Chamber of the Dakar Appeals Court),
Senegal, Ministe' re Public et Franc ois Diouf Contre Hisse' ne Habre¤ (arre“t no 135), 4 July 2000, avail-
able online at http://www.hrw.org/legacy/french/themes/habre-decision.html (last visited 13
December 2010).
2 Cour de Cassation (Court of Cassation), Senegal, Souleymane Guengueng et Autres Contre Hisse' ne
Habre¤ (arre“t no 14), 20 March 2001, available online at http://www.icrc.org/ihl-nat.nsf/
46707c419d6bdfa24125673e00508145/90e26efa1bb31189c1256b21005549b0!OpenDocument
(last visited 13 December 2010).
3 Reference is made here to the Loi du 16 juin 1993 relative a' la re¤ pression des infractions graves aux
Conventions internationales de Gene' ve du 12 aou“t 1949 et aux Protocoles I et II du 8 juin 1977
(Law Relative to the Repression of Serious Violations of the International Conventions of
Geneva of 1949, and of the Protocols I and II of 1977), available online at http://www.ulb.ac
.be/droit/cdi/Site/Legislation_files/Loi%20du%2016%20juin%201993%20texte%20de%20loi.pdf
(last visited 13 December 2010). The Law was later renamed Loi relative a' la re¤ pression des viola-
tions graves de droit international humanitaire, 10 fe¤ vrier 1999 (Law Relative to Serious
Violations of International Humanitarian Law) and amended to include acts of genocide and
crimes against humanity, available online at http://www.ulb.ac.be/droit/cdi/Site/Legislation_
files/Loi%20du%205%20aout%202003%20texte%20de%20loi.pdf (last visited 13 December
2010). The law was repealed in 2003 and substituted by a law on extraterritorial jurisdiction.
4 Chambre d’accusation de la Cour d’appel de Dakar (Criminal Chamber of the Dakar Appeals Court),
Avis du 25 Novembre relatif a' la demande d’extradition de Hisse' ne Habre¤ par la Belgique [unreport-
ed]. Excerpts available at http://www.haguejusticeportal.net/Docs/NLP/Senegal/Habr%E9_
Cour_Appel_Avis_Extradition_25-11-2005%28Extraits%29.pdf (last visited 13 December 2010).
5 Decision on the Hisse' ne Habre¤ Case and the African Union, Assembly/AU/Dec. 03(VI), 2 August
2006, x 5(ii), available online at http://www.hrw.org/en/news/2006/08/02/decision-hiss-ne-
habr-case-and-african-union (last visited 13 December 2010).
 Non-retroactivity of Criminal Law 7

crimes in its Penal Code and providing for universal jurisdiction over such
crimes and the crime of torture.6 The Senegalese Constitution was amended
accordingly, incorporating the principle of nullum crimen sine lege laid down
in Article 15 of the International Covenant on Civil and Political Rights
(ICCPR).7 It must be noted that the main objective of the legislative amendments
adopted by Senegal was to give effect to the complementarity system set forth
in the Statute of the International Criminal Court (ICC).8 It is interesting that
these amendments were not adopted after Senegal ratified the ICC Statute, but
only after it received from the African Union the mandate to prosecute Habre¤.
Allegedly, a lack of resources has delayed commencement of the proceedings
until today. This delay led Belgium to ask the International Court of Justice
(ICJ), without success, to force Senegal either to try or to extradite Habre¤.9
For the sake of completeness, it should also be mentioned that Chad too had

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started criminal proceedings against its former President, although not for
the acts allegedly committed during his dictatorship. On 15 August 2008, a
court in N’djame'na tried Habre¤ in absentia for his alleged support of the rebels
ç opposed to the Chadian President Idriss De¤by ç who had attempted to
seize power in February of that year. The court sentenced him to death for
crimes against the state. It is noteworthy that even assuming that Chad had
tried Habre¤ for crimes committed during the dictatorship, such a trial would
not have been conducted for crimes against humanity or torture, since at that
time Chadian legislation did not prohibit these crimes; hence any trial could
have only been instituted against him for murder or grievous bodily harm.10

6 Loi n. 2007- 02 du 12 fe¤ vrier 2007 modifiant le Code penal (‘Loi 2007- 02’) (Law no. 2007-02 of 12
February 2007 amending the Penal Code), Journal Officiel de la Republique du Se¤ ne¤ gal no. 6332,
10 March 2007, at 2377, available online at http://rds.refer.sn/IMG/pdf/07-02-
12CODEPENALMODIF.pdf (last visited 13 December 2010); Loi n. 2007- 05 du 12 fe¤ vrier 2007
modifiant le Code de la Proce¤ dure pe¤ nale relative a' la mise en oeuvre du Traite¤ de Rome instituant la
Cour pe¤ nale internationale (Law no. 2007-05 of 12 February 2007 relative to the implementation
of the Rome Statute creating the International Criminal Court), ibid., at 2384, available
online at http://www.iccnow.org/documents/Loi_2007_05_du_12_Fev_2007_modifiant_le_Code_de_
Procedure_penale_senegal_fr.pdf (last visited 13 December 2010).
7 Loi constitutionnelle n. 2008-33 du 7 aou“t 2008 modifiant les articles 9 et 25 et comple¤ tant les art-
icles 562 et 92 de la Constitution (Constitutional Law no. 2008-33 of 7 August 2008 amending
Arts 9 and 25 and supplementing Arts 562 and 92 of the Constitution), Journal Officiel de la
Republique du Se¤ ne¤ gal no. 6420, 8 August 2008, available online at http://www.jo.gouv.sn/spip
.php?article7026 (last visited 13 December 2010).
8 The Expose¤ des motifs of the Loi 2007- 02 states at x 5: ‘Par l’adoption des telles re'gles, le Se¤ne¤gal
va se doter de la capacite¤ a' poursuivre les trois crimes internationaux de¤finis, pour le moment,
par le Statut de Rome et s’assurer la primaute¤ juridictionnelle de ses tribunaux sur celle de la
Cour pe¤nale internationale.’
9 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Request for the
Indication of Provisional Measures, Order of 28 May 2009, available online at http://www.icj-
cij.org/docket/files/144/15149.pdf (last visited 13 December 2010).
10 Judgment unreported. For a summary of the judgment, see e.g., the news report by The NewYork
Times, at http://www.nytimes.com/2008/08/15/world/africa/15iht-chad.5.15339685.html (last
visited 8 January 2010). Being based on different facts, the Chadian trial does not constitute
an obstacle to any further prosecution of Habre¤ by Senegal for crimes allegedy committed
during his dictatorship.
8 JICJ 9 (2011), 5^23

2. The Court of Justice of the Economic Community of

West African States Steps In: The Court’s Role
Recently, the Court of Justice of the Economic Community of West African
States (ECOWAS Court) became involved in the Habre¤ case.11 A few words are
necessary to outline the role of the Court, so as to explain how and why a
case concerning Hisse'ne Habre¤ could be brought before it.
The ECOWAS Court, set up in 2001,12 is empowered to settle any dispute be-
tween ECOWAS member states arising out of the application and the interpret-
ation of the Treaty,13 or other agreements that so provide, or to hear cases
brought by citizens of member states14 alleging violations of human rights
committed by any member state.15 The promotion and protection of human
rights has from the very outset stood out as the most far-reaching feature of

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the Court’s mandate. Indeed, on the basis of litigation arising out of violations
of human rights, the Court has been able to provide some jurisdictional protec-
tion of basic human rights (such as the prohibition of slavery and the right to
free and compulsory education).16 In this respect, the Court’s jurisdiction may
be triggered, for example, when (i) a violation of the African Charter on

11 Hissein Habre¤ c. Re¤ publique du Se¤ ne¤ gal (ECW/CCJ/JUD/06/10) (‘ECOWAS Judgment’), Judgment
of 18 November 2010, available online at http://www.hrw.org/fr/news/2010/11/18/arr-t-
cedeaoecowas-ruling-hissein-habr-c-r-publique-du-s-n-gal (last visited 13 December 2010).
12 The Court of Justice of the Economic Community of West African States, although already envi-
saged in 1975 Treaty of ECOWAS (Art. 15), was formally established in 1991 by Protocol A/P.1/
7/91 (‘1991 Protocol’).
13 Reference is made here to the ECOWAS Treaty, adopted in 1975 and revised in 1993.
14 Initially, only member states were allowed to file complaints before the Court, either on their
own behalf or on behalf of their nationals, against another member state or an institution of
the Community. In 2005, ECOWAS Heads of State and Government adopted Supplementary
Protocol A/SP.1/01/05, giving access to the Court to natural and legal persons with respect to
human rights and fundamental freedom (Arts 3 and 4 of the Supplementary Protocol, corres-
ponding to amended Arts 9(4) and 10(c)(d) of the 1991 Protocol). This amendment was most
probably brought about by the impasse in which the Court found itself in the Olajide Afolabi
case (Olajide Afolabi v. Federal Republic of Nigeria (2004/ECW/CCJ/04), Judgment of 27 April
2004). The case was brought by a Nigerian businessman against his own state for a violation
of the Community Law in the closing of the border with Benin. The Court ruled that, pursuant
to the 1991 Protocol, individuals could only file a complaint before it through the state of
which they are citizen. Clearly, the Court found itself in a puzzling standstill which was diffi-
cult to solve without amending its jurisdiction.
15 Supplementary Protocol A/SP.1/01/05 also broadened considerably the jurisdiction of the Court.
Namely, it allowed the Court to evoke its jurisdiction over: review of human rights violations
by member states (Arts 3 and 4 of the Supplementary Protocol, corresponding to amended
Arts 9(4) and 10(c)^(d) of the 1991 Protocol), disputes arising under agreements other than
the treaties (Art. 3 of the Supplementary Protocol, corresponding to amended Art. 10(6) of the
1991 Protocol). The Supplementary Protocol also gave the right to national courts to seize the
Court for matters of interpretation of Community Law (Art. 4 of the Supplementary Protocol,
corresponding to amended Art. 10(f) of the 1991 Protocol).
16 See respectively, Mme Hadijatou Mani Koraou c. La Re¤ public du Niger (ECW/CCJ/JUD/06/08),
27 October 2008; Droits Economiques et Sociaux et Projet Responsabilite¤ (SERAP) c. La
Re¤ publique Fe¤ de¤ rale du Nige¤ ria et la Commission sur l’Education de Base Universelle (ECW/CCJ/
AAP/0808), 27 October 2009.
 Non-retroactivity of Criminal Law 9

Human and People’s Rights has allegedly been committed, or (ii) where there is
a risk of inconsistency between the ECOWAS derived standards, which have
direct legal effects pursuant to Article 9(6) of the Revised Treaty, and the pro-
tection of individual rights as enshrined in the constitution of member states.
Like the European Court of Human Rights (ECtHR), the ECOWAS Court’s
judgments are binding on member states. However, contrary to the ECtHR,
local remedies do not need to be exhausted before cases are brought to the
ECOWAS Court. Therefore, every victim of an alleged human rights violation
can bring a claim to the Court even while the case is subject to national
proceedings.

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3. The ECOWAS Court and the Habre¤ Case
A. Antecedent Events
Hisse'ne Habre¤’s complaint to the ECOWAS Court originated from legislative
changes adopted by Senegal following the African Union’s call to try the
former dictator ‘in the name of Africa’.17 Habre¤’s defence counsel claimed that
Senegal’s decision to amend its laws was clearly intended to target his client;
in addition, by prosecuting the former Chadian dictator for crimes that had
just been added to the jurisdiction of national courts, Senegal would violate
the principle of non-retroactivity of criminal law.18 Senegal’s legislative changes
would be, therefore, in violation of Article 7(2) of the African Charter on
Human and People’s Rights and Article 11(2) of the Universal Declaration of
Human Rights.
For its part, Senegal replied that the legislative changes were undertaken in
order to conform national legislation to the international engagements of the
state. Accordingly, the retroactive jurisdiction of its domestic courts would not
introduce new crimes with retroactive effects, since genocide, crimes against
humanity and war crimes were already criminalized by international law at
the moment when the facts at issue were allegedly committed by Habre¤.
Similarly, extraterritorial jurisdiction over torture ç which, before the legisla-
tive amendments, was not allowed by the Code of Criminal Procedure ç was
already set forth in the 1984 Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (‘Convention Against
Torture’ or ‘Torture Convention’).

17 For an overview and an assessment of the legislative changes adopted by Senegal in this re-
spect, see M. Niang, ‘The Senegalese Legal Framework for the Prosecution of International
Crimes’, 7 Journal of International Criminal Justice (2009) 1047^1062.
18 Habre¤ also claimed that Senegal’s legislative measures were contrary to the principle of equality
before the law, the authority of res judicata and his right to fair trial and effective remedy.
Furthermore, Habre¤ claimed that Senegal violated the ECOWAS Protocol on Democracy and
Good Governance, the independence of the judiciary and the separation of powers. For the pur-
poses of this paper, suffice it to say that the Court rejected such claims.
10 JICJ 9 (2011), 5^23

B. The Court’s Reasoning

From a purely chronological point of view, the answer to Habre¤’s claim could be
straightforward: Senegal’s legal action comes almost 20 years after the com-
mission of the alleged crimes. Prior to the legislative amendments, domestic
courts had ruled that they lacked jurisdiction over the crimes allegedly perpe-
trated by Habre¤. Therefore, if one restricts the analysis to domestic law,
Senegal’s action would be in violation of the principle of non-retroactivity of
criminal law. However, as the Court notes, the principle of nullum crimen sine
lege is not violated when the acts at issue, although not criminalized under do-
mestic law, amount to conduct criminalized by ‘general principles of law recog-
nized by the community of nations’ at the moment of their commission. This
is what Article 15(2) ICCPR explicitly provides. The rationale behind this provi-

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sion is, in the Court’s opinion, to avoid letting those who commit the most hein-
ous atrocities go unpunished when no domestic legal rule prohibited the acts
at the time of their commission.
Having set out this notion, the Court concludes that the mandate as-
signed by the African Union to Senegal should be carried out in accord-
ance with the ‘international custom’ relating to the establishment of ad hoc
jurisdictions. According to the Court, a special tribunal, based on the provi-
sions set out in Article 15(2) ICCPR, is the only option that would permit
Habre¤ to be tried without applying ex post facto laws. Should Senegal try
Habre¤ through its domestic courts, the Court says, it would not only violate
the principle of non-retroactivity of the law, but would also ‘stand in the way
of respect for the principle of impunity [sic] enshrined in international
instruments’.19
Plainly, the bone of contention is the legislative change adopted by Senegal,
which gives the state jurisdiction over acts of genocide, torture, crimes against
humanity and war crimes. As I have pointed out above, this legislative change
is, chronologically speaking, ex post facto, should it be applied in a trial against
the former Chadian President. But does its retroactive application lead to the
punishment of otherwise non-criminalized acts? The question may also be
framed as follows: under what circumstances does the retroactive application
of domestic criminal rules not violate the principle of non-retroactivity of crim-
inal law?
In order to answer these questions, an analysis, however succinct, of the ra-
tionale and scope of the principle of non-retroactivity of criminal law and of
Article 15 ICCPR proves necessary. I will then move on to consider the
ECOWAS Court’s argument relating to the ad hoc tribunal. In particular, I
shall discuss whether such institutional option is required when the domestic

19 ‘[T]oute autre entreprise du Se¤ne¤gal en dehors d’un tel cadre violerait, dune [sic] part, le prin-
cipe de la non re¤troactivite¤ de la loi pe¤nale, consacre¤ par les instruments internationaux relatifs
aux droits de l’homme comme e¤tant un droit intangible et d’autre part, ferait obstruction au re-
spect du principe de l’impunite¤ consacre¤ par les me“mes textes internationaux.’ ECOWAS
Judgment, supra note 11, at x 58.
 Non-retroactivity of Criminal Law 11

legal framework allegedly lacks the instruments to criminalize certain

conduct.

4. The Principle of Non-retroactivity of Criminal Law

A. The Exceptions to the Nullum Crimen Principle Introduced by
International Law
It is common knowledge that the prohibition of the retroactive application of
criminal law is a derivative of the nullum crimen sine lege principle, a general
principle of criminal law which prohibits criminalizing acts committed prior
to the entry into force of a rule banning such conduct as a crime. This prin-

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ciple, which safeguards individuals against arbitrary decisions of the authori-
ties, has known a far-reaching expansion, thanks to the development of
international law.
Domestic law is often not well equipped to deal with crimes such as geno-
cide, crimes against humanity and war crimes. This does not mean that
states do not recognize the reprehensible nature of such crimes. Rather, their
international obligations and practice show that a number of acts, which are
not criminalized by domestic criminal laws, have increasingly been seen as
international crimes. For this reason, the principle of non-retroactivity of crim-
inal law, despite its popularity with those accused of committing the gravest
atrocities of the 20th century, rarely proved successful as a defence. As early
as the Nuremberg trials, judges grounded the criminalization of certain con-
duct, such as aggression, in the existence of an international rule, regardless
of the lack of any corresponding rule in domestic law.20 It has been said that,
in so doing, the Nuremberg International Military Tribunal (IMT) adopted the
doctrine of substantive justice as opposed to that of strict legality: that is,
even in the absence of a clear rule banning conduct as criminal, acts that ser-
iously harm society should not go unpunished.21
Following the Nuremberg experience, two factors deeply influenced the prin-
ciple of nullum crimen sine lege. On the one hand, the doctrine of substantive
justice was replaced by that of strict legality. On the other hand, international
criminal law expanded and became a more precise and certain area of law,
thanks both to the ratification by a growing number of states of international
treaties criminalizing the conduct of individuals22 and to international case
law interpreting specific elements of the crimes or contributing to the gradual

20 Judgment of the International Military Tribunal for the Trial of German Major War Criminals
(‘IMT Judgment’), 30 September and 1 October 1946, reprinted in 41 American Journal of
International Law (1947) 172^333, at 217^220.
21 A. Cassese, International Criminal Law (2nd edn., Oxford: Oxford University Press, 2008), at
38^39.
22 For example, Art. 1 of the Convention on the Prevention and Punishment of Genocide states:
‘The Contracting Parties confirm that genocide, whether committed in time of peace or in
time of war, is a crime under international law which they undertake to prevent and to punish.’
12 JICJ 9 (2011), 5^23

crystallization of crimes under customary international law.23 Under these cir-

cumstances, the principle of non-retroactivity has evolved in such a way as to
admit two major exceptions, reflected in most human rights instruments: the
principle is not violated when an act, even though it was not punishable
under national criminal law at the time when it was performed, was neverthe-
less criminalized either (i) under international law, or (ii) according to the gen-
eral principles of law recognized by the community of the nations.
In this respect, the criminal offences that the drafters of the international
human rights instruments had in mind were most probably those committed
in the context of the then recently concluded World War II; therefore, the occa-
sio legis of these exceptions was most probably the intention to support,
ex post, what had already been asserted in Nuremberg. It remains true that,
due to the vague content of these two exceptions, particular attention should

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be paid to the degree of accessibility and foreseeability24 of the criminal rules
they allow to be applied retrospectively.25 Reference to international law, espe-
cially when international customary rules are at stake, as well as to general
principles of law, may easily become a dangerous Pandora’s box in the hands
of a tyrannical judicial power. However, as I shall argue, under specific circum-
stances a domestic court may resort to these exceptions in order to try a
person without violating the principle of non-retroactivity.

B. The Interplay between the Nullum Crimen Exceptions and Domestic Law
Having briefly recalled the fundamentals of the general principle of
non-retroactivity, I shall now discuss the relationship between this principle
and domestic law. For this purpose, close scrutiny of Article 15 of the ICCPR,
which is relevant to the ECOWAS Court’s ruling, proves necessary.
Article 15(1) of the UN Covenant requires that in order for conduct to be pro-
secuted and punished, it must have been previously criminalized either under

23 For example, Art. 15 ICCPR, Art. 7 European Convention on Human Rights. See also Art. 99(1)
Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention III),
Art. 67 Geneva Convention Relative to the Protection of Civilians in Time of War (Geneva
Convention IV) and Art. 75(4)(c) Additional Protocol I to the Geneva Conventions.
24 In cases dealing with the nullum crimen principle, the European Court has applied the test of
accessibility and foreseeability when determining whether the conduct in question falls
within the scope of a criminal statute. For an elaboration of these principles, see e.g. The
Sunday Times v. United Kingdom, ECtHR (1979) Series A, No. 30, at x 49.
25 See in this respect the analysis carried out by the ECtHR in a number of cases dealing with the
retroactive application of criminal law incorporating certain conduct which was already crim-
inal under international law. For example, in Kolk and Kislyiy v. Estonia (App. No. 23052/04,
24018/04), ECtHR, 17 January 2006, the Court held, at 9: ‘ ::: [E]ven if the acts committed by
the applicants could have been regarded as lawful under the Soviet law at the material time,
they were nevertheless found by the Estonian courts to constitute crimes against humanity
under international law at the time of their commission. ::: The Court thus considers ground-
less the applicants’ allegations that their acts had not constituted crimes against humanity at
the time of their commission and that they could not reasonably have been expected to be
aware of that.’
 Non-retroactivity of Criminal Law 13

national or international law.26 This provision has been interpreted as recog-

nizing the equivalence of the two bodies of law.27 It follows that if an act
lawful under national law is nonetheless criminal under international law,
such act can be prosecuted before a domestic court (provided that it has juris-
diction over international crimes). Article 15(2) legitimizes the prospect of
trying and punishing conduct which is criminal ‘according to the general prin-
ciples of law recognized by the community of nations’. This provision appears
as a sort of fallback option, or a subsidiary means of interpretation, to be
relied upon when neither national law nor treaty or customary international
law rules criminalize certain conduct.28 The provision may also be applied
when the elements of such conduct are left undefined by international
rules.29 Accordingly, as I shall further elaborate, the principle of legality is

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26 The term ‘international law’ should be read as including both treaty law and customary law. In
this sense, it has been observed by an authoritative scholar: ‘A person may be held guilty of an
act or an omission that was not punishable by the applicable national law at the time the of-
fence was committed so long as this was punishable under international treaty law or custom-
ary law at the time the offence was committed.’ M. Nowak, U.N. Covenant on Civil and Political
Rights: CCPR Commentary (2nd rev. edn., Kehl, Strasbourg: N.P. Engel, 2005), at 360.
27 For example, in Baumgarten v. Germany (Communication No. 960/2000, UN Doc. CCPR/C/78/D/
960/2000 (2003), at x 9.3), the Human Rights Committee (‘HRC’), in considering a complaint
of an alleged retrospective application of German law, stated that it would ‘limit itself to the
question of whether the author’s acts, at the material time of commission, constituted suffi-
ciently defined criminal offences under the criminal law of the GDR or under international
law.’ In considering a similar complaint in Nicholas v. Australia (Communication No. 1080/
2002, UN Doc. CCPR/C/80/D/1080/2002 (2004), at x 7.5), the HRC did not depart from this
view: ‘If a necessary element of the offence, as described in national (or international) law,
cannot be proven to have existed, then it follows that a conviction of a person for the act of
omission in question would violate the principle of nullum crimen sine lege.’ The travaux pre¤ para-
toires of the ICCPR support this interpretation. The official annotations of the draft ICCPR
state that ‘[t]he reference in paragraph 1 to international law is intended to ensure that no
one shall escape punishment for a criminal offence under international law by pleading that
his act was legal under his own national law’. Annotations on the Text of the Draft International
Covenants on Human Rights, Chapter VI ç Civil and Political Rights, UN Doc. A/2929, 1 July
1955, x 94.
28 This view is also found in the travaux pre¤paratoires of the ICCPR: ‘[T]he view was heard that the
saving provision set forth in paragraph 2 had no application to past convictions for war
crimes, nor was it fully covered by the term ‘‘international law’’ contained in paragraph 1.’
Ibid., x 96. On this point, see also Cassese, supra note 21, at 22^25. A different view is taken by
Manfred Nowak, according to whom ‘ ::: Article 15(2) of the Covenant contains an exception
to the prohibition of retroactive criminal laws if an act or omission was, at the time when it
was committed, criminal under customary international law’. Accordingly, Nowak seems not
to distinguish between ‘general principles of law recognized by the community of nations’ and
‘customary international law’. Such an approach leads Nowak to conclude that: ‘[T]he legal
significance of Art. 15(2) is rather dubious in light of the reference to international law in
Art. 15(1).’ Nowak, supra note 26, at 367^368.
29 The ICTY Trial Chamber in Furundz› ija held: ‘The Trial Chamber therefore considers that, to
arrive at an accurate definition of rape based on the criminal law principle of specificity
(Bestimmtheitgrundsatz, also referred to by the maxim ‘‘nullum crimen sine lege stricta’’), it is ne-
cessary to look for principles of criminal law common to the major legal systems of the world.
These principles may be derived, with all due caution, from national laws.’ Judgment,
Furundz› ija (IT-95-17/1-T), Trial Chamber, 10 December 1998, at x 177. Similarly, in Kupres› kic¤ ,
14 JICJ 9 (2011), 5^23

hardly reconcilable with the criminalization of certain conduct only on the

basis of general principles of law.
Article 15 requires that the law criminalizes the acts in question at the time
of their commission. No reference is made to the time of the criminal prosecu-
tion. In this respect, two issues remain unclear. First, pursuant to this article,
can a state prosecute an individual for an act which, although criminal ac-
cording to international law or to general principles of law, was not contem-
plated by national legislation?30 And second, can a state prosecute a foreigner
for crimes committed abroad against foreigners, although there is no proced-
ural rule in the national legislation providing for extraterritorial or universal
jurisdiction over such crimes? Common sense and legal practice would suggest
answering these questions in the negative: normally international crimes need
to be reflected in substantive and procedural rules of national law before they

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can be prosecuted or punished at the domestic level. Without such legislation,
the state would face two obstacles: (i) there would be no specification of the ap-
plicable penalty; and (ii) the courts could not assert their extraterritorial juris-
diction over such crimes.
However, when new incorporating legislation is passed concerning conduct
previously criminalized in international law, allowing courts to exercise uni-
versal jurisdiction over such conduct, this legislation does not have the func-
tion of creating new crimes. Rather, it has a jurisdictional function.31 In other
words, the incorporating legislation is only a tool which enables national
courts to apply the relevant rule of international law criminalizing the
conduct.
Since the incorporating law does not create new crimes (but only allows their
prosecution), the date of its adoption is not relevant to the criminalization of

the Trial Chamber held: ‘[I]t is now clear that to fill possible gaps in international customary
and treaty law, international and national criminal courts may draw upon general principles
of criminal law as they derive from the convergence of the principal penal systems of the
world. Where necessary, the TC shall use such principles to fill in any lacunae in the Statute of
the International Tribunal and in customary law.’ Judgment, Kupres› kic¤ et al. (IT-95-16-T), Trial
Chamber, 14 January 2000, at x 677.
30 For example, the Federal Court of Australia held that since customary international law was
not incorporated into Australian law, domestic courts did not have jurisdiction over genocide.
Federal Court of Australia, Nulyarimma v. Thompson [1999] FCA 1192, at xx 32, 57. Justice
Merkel dissented, holding that international customary law was incorporated into Australian
law due to its jus cogens status. Ibid., at x 186.
31 In this sense, see e.g. Re Extradition of Demjanjuk, a case concerning an Israeli extradition request
of an alleged guard at the Treblinka concentration camp during World War II. The appellant
argued that, inter alia, the Israeli criminal statute under which the accused was sought was
retroactive, since Israel did not come into existence until 1948. The Court stated that: ‘The Israeli
statute does not declare unlawful what had been lawful before; rather, it provides a new forum
in which to bring to trial persons for conduct previously recognized as criminal. ::: Respondent
is charged with offenses that were criminal at the time they were carried out. ::: The statute is
not retroactive because it is jurisdictional and does not create a new crime. Thus, Israel has not
violated any prohibition against the ex post facto application of criminal laws which may exist
in international law.’ United States District Court North Dakota ç Ohio, Eastern Division,
Re Extradition of Demjanjuk [1985] 612 F.Supp.544, at 567.
 Non-retroactivity of Criminal Law 15

the conduct itself. In this sense, the incorporating legislation does not raise
issues of foreseeability under human rights law, as the alleged perpetrator
should have been aware of the international prohibition.32 This general
rule holds true, of course, only as long as the definition of the crimes
included in the domestic legislation coincides with that set out in the relevant
international rules. Accordingly, if the crime proscribed by national law is
larger in scope (that is, in its objective and subjective elements) than the cor-
respondent international crime, state courts may refer to the broader, domes-
tically defined elements of the crime only with respect to offences
committed after its adoption. Instead, acts committed before the adoption of
the national law can be prosecuted only by reference to the definition of
crimes as set out, at the time of the alleged commission of the crime, in inter-
national law.33 Consequently, an incorporating law could be applied retrospect-

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ively without violating the principle of non-retroactivity, provided that the
acts at issue were already prohibited by international law, at least in a general
way (i.e. based on the general principles of law), at the time the offence was
committed.
This interpretation would appear to be consistent with the text of Article 15
which, as highlighted above, requires the rule of criminal law (regardless of
its origin) to have been applicable prior to the commission of the act.
It is notable that a similar function to that of an incorporating piece of legis-
lation was performed, for example, by the Statute of the International
Criminal Tribunal for the former Yugoslavia (ICTY), with respect to crimes
committed between 1991 and 1993. As is well known, the ICTY has jurisdiction
over four categories of crimes (grave breaches of the Geneva Conventions, vio-
lations of the laws and customs of war, genocide and crimes against humanity)
committed in the territory of the former Yugoslavia since 1991. However,
Resolution 827 of the Security Council, which authorized the establishment
of the ICTY, was only adopted in 1993. From a chronological perspective, one
might contend that the ICTY Statute was applied retroactively to crimes com-
mitted between 1991 and the date of its adoption. However, the substantive
criminal law was not applied by the Tribunal retroactively, since the ICTY

32 On this point it has been observed that ‘[t]he perpetrator of an international crime need not
know when committing a crime that he is breaching international law for him to be convicted
for a breach of that body of law, but ‘‘the principle of legality requires that the crime charged
be set out in a law that is accessible and that it be foreseeable that the conduct in question
may be criminally sanctioned at the time when the crime was allegedly committed.’’’
G. Mettraux, International Crimes and the ad hoc Tribunals (Oxford: Oxford University Press,
2005), at 17, citing Decision on Interlocutory Appeal Challenging Jurisdiction in Relation
to Command Responsibility, Hadz› ihasanovic¤ (IT-01-47-AR72), Appeals Chamber, 16 July
2003, x 34.
33 For example, the notion of genocide included in the Senegalese Loi 2007- 02 departs from that
set out in Art. 2 Genocide Convention. Besides the four criteria set out by the Genocide
Convention, the Senegalese Law determines that the protected group can also be ‘determined
by any other criteria’ (Art. 431-1). Therefore, for acts committed before the adoption of the law,
only the notion set out by the Genocide Convention should apply.
16 JICJ 9 (2011), 5^23

Statute authorized the Tribunal to apply only customary international

law existing at the time of the alleged commission of crimes in the
former Yugoslavia.34 Thus, the Statute made it possible for the ICTY to
apply international rules criminalizing acts committed in 1991^1993, re-
gardless of whether those acts had also been contemplated as criminal by
the legislation applicable, in that same period, in the various states emerging
from the ashes of the Socialist Federal Republic of Yugoslavia.
Let us sum up the main results of this analysis. It seems warranted to
maintain that three conditions need to be fulfilled in order to comply with
the principle of nullum crimen sine lege when criminal responsibility is
imposed by national courts for an act which is banned by international law or
general principles of law: (i) the state has ratified an international treaty
or convention stipulating criminal liability for breaches of its provisions;

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or there is an international customary rule criminalizing certain conduct,
which is binding on the state or there is a general principle of law recognized
by the community of nations criminalizing the conduct; (ii) all the elements
of the crime were foreseeable and accessible to the person charged with their
commission, at the time the acts were perpetrated; and (iii) the state has
adopted substantive and procedural rules incorporating international crimes
into its legislation; in particular, where the international crime has been perpe-
trated abroad by a non-national against foreigners, it is necessary for the state
to have passed legislation contemplating universal jurisdiction over that cat-
egory of crime.

5. Do Senegal’s Legislative Changes Violate the

Principle of Non-retroactivity of Criminal Law?
Having clarified that an incorporating law does not violate the principle of
non-retroactivity, as long as it criminalizes conduct which was already crim-
inal under a rule of international law or a general principle of law at the
moment of the commission of the relevant facts, the question arises as to
whether the Senegalese legislative changes met this test.
At the outset, it should be noted that, prior to this legislative action,
Senegalese courts could not try Habre¤ for conduct criminal under interna-
tional law. The contrary view was advanced by the Prosecutor in the

34 When establishing the Yugoslav Tribunal, the view expressed by the UN Secretary-General was
that ‘the application of the principle nullem crimen sine lege required that the international tri-
bunal apply rules of international humanitarian law which are beyond any doubt part of cus-
tomary law.’ Report of the Secretary-General pursuant to paragraph 2 of Security Council
Resolution 808 (1993), UN Doc. S/25704, 3 May 1993, x 34. In relation to the criminalization of
certain conduct under customary international law, see e.g., with respect to rape, Furundz› ija,
supra note 29, xx 168^169; with respect to the scope of ‘protected persons’ under the grave
breaches regime of the 1949 Geneva Conventions, see Judgment, Tadic¤ (IT-94-1-A), Appeals
Chamber, 15 July 1999, xx 163^169.
 Non-retroactivity of Criminal Law 17

proceedings before the Court of Cassation.35 However, it was rightly rejected.

While it is true that, according to Article 79 of the Senegalese Constitution,
conventions and international treaties which have been ratified are automatic-
ally incorporated into national law (if they are self-executing), this cannot be
said of conventions which require the state to enact a certain law to give full
effect to its (non self-executing) provisions, such as the Convention Against
Torture. Indeed, Article 4 of the Torture Convention requires states to criminal-
ize acts of torture, complicity and attempt and participation in torture, and to
punish those acts with ‘appropriate penalties which take into account the grav-
ity of the crimes’. Similarly, domestic courts cannot evoke their jurisdiction
over acts which, although criminal under customary international law, are
not incorporated into national rules of criminal law. Hence, Senegal could not
carry out the mandate of the African Union without adopting an incorporating

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law or amending the legislation into force.
The Senegalese legislative reform had a twofold nature. On the one hand, it
substantively modified the applicable criminal law, introducing in the Penal
Code a set of international crimes, namely genocide, crimes against humanity
and war crimes. On the other hand, it introduced a procedural change, broaden-
ing the range of crimes over which Senegal can exercise universal jurisdiction,
by including the abovementioned international crimes and torture.
The articles introduced by the law which amended the Senegalese Penal
Code are said to have literally transposed the provisions of the ICC Statute re-
garding genocide, crimes against humanity and war crimes ‘so as to fully ac-
knowledge the character of jus cogens of the norms thereby introduced’.36 The
question which arises then is: were genocide, crimes against humanity and
war crimes already criminalized under rules of international law at the time
of the alleged facts for which Habre¤ is now being called to account?
With respect to genocide (a crime which does not appear to be relevant to
the Habre¤ case), the answer would be undoubtedly affirmative. Acts of genocide
were banned and made punishable by the 1948 UN Convention on the
Prevention and Punishment of the Crime of Genocide (which Senegal ratified
in 1983) and by corresponding customary international rules which had
evolved right after the adoption of the Convention.37 Similarly, war crimes
were proscribed at the level of treaty law by the four Geneva Conventions of

35 Cour de Cassation (Court of Cassation), Senegal, Souleymane Guengueng et al. v. Hisse' ne Habre¤ ,
Conclusion du Ministe're Public, 3 January 2001, available online at http://www.haguejustice-
portal.net/Docs/NLP/Senegal/Habr%E9_Cassation_CC_Minist%E8re_public_3-1-2001.pdf (last vis-
ited 13 December 2010).
36 Loi 2007^02, Expose¤ des motifs, x 6.
37 It is commonly accepted that, at least since the adoption of the Genocide Convention, a custom-
ary rule prohibiting genocide has emerged. The emergence of such rule is signalled, inter alia,
by the adoption of the Convention by unanimity and its rapid ratification by a large number
of states. This view was already confirmed in 1951 when the ICJ held: ‘[T]he principles underly-
ing the Convention are principles which are recognized by civilized nations as binding on
states, even without any conventional obligation.’ Reservations to the Convention on the
Prevention and Punishment of Genocide, Advisory Opinion, 28 May 1951, ICJ Rep (1951) 15, at 12.
On the emergence of a customary rule prohibiting genocide, see Y. Shany, ‘The Road to the
18 JICJ 9 (2011), 5^23

1949 (to which Senegal acceded on 1963) and the two additional protocols of
1977 (to which Senegal acceded on 1985), as well as by international custom-
ary rules.38 At that time, crimes against humanity were also provided for by
customary rules which had evolved after the IMT trials.39
A separate analysis should be reserved for the crime of torture. Pursuant to
the law amending the Code of Criminal Procedure, torture (as well as the
abovementioned international crimes) has been included in Article 669 of the
Code of Criminal Procedure among the offences over which, even if committed
by foreigners outside Senegal, Senegalese courts may exercise jurisdiction.
While, as has been said above, genocide, crimes against humanity and war
crimes were not criminalized under Senegalese domestic law at the moment
of the alleged commission of the facts by Habre¤, torture and complicity in tor-
ture were criminalized, respectively, under Article 288 and Article 46 of the

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Senegalese Penal Code. Nonetheless, they were not punishable if committed
by foreigners outside Senegal. This was the legal hurdle which led the Court
of Cassation to hold in 2001 that ‘Senegalese courts do not have jurisdiction
over acts of torture committed by a foreigner outside of the Senegalese terri-
tory regardless of the nationality of the victims’.40 True, one could argue that
the prohibition of torture, being grounded in a rule of domestic law, was only
binding over persons subject to Senegalese territorial or national jurisdiction.
It is also true, however, that the prohibition of torture was already recognized
as a matter of customary international rule in 1980, as authoritatively and con-
vincingly stated in Fila¤rtiga.41 Furthermore, in 1986 Senegal ratified the 1984
Convention Against Torture (which entered into force on 26 June 1987, hence

Genocide Convention and Beyond’, in P. Gaeta (ed.), The UN Genocide Convention: A Commentary
(Oxford: Oxford University Press, 2009) 3^26, esp. at 15^16.
38 Most of the substantive provisions of The Hague Conventions of 1899 and 1907 are considered
to embody rules of customary international law. In 1946 the IMT stated, with respect to the
1907 Hague Convention on the Laws and Customs of War on Land: ‘The rules of land warfare
expressed in the Convention undoubtedly represented an advance over existing International
Law at the time of their adoption ::: but by 1939 these rules ::: were recognized by all civilized
nations and were regarded as being declaratory of the laws and customs of war.’ IMT
Judgment, supra note 20, at 248^249.
39 Crimes against humanity were incorporated for the first time in international treaty law in Art.
6 of the IMT Charter. In this respect, the Nuremberg Tribunal observed: ‘The Charter is not
an arbitrary exercise of power on the part of the victorious nations, but in the view of the
Tribunal ::: is the expression of international law existing at the time of its creation; and to
that extent is itself a contribution to international law.’ IMT Judgment, supra note 20, at 216.
40 ‘Les juridictions se¤ne¤galaises sont incompe¤tentes pour conna|“ tre des actes de torture commis
par un e¤tranger en dehors du territoire quelle que soit la nationalite¤ des victimes.’ Souleymane
Guengueng et al. v. Hisse' ne Habre¤, supra note 2, at 5.
41 United States Court of Appeals for the Second Circuit, Fila¤rtiga v. Pen‹ a-Irala (630 F.2d 876 (2d
Cir. 1980)), at 882. Referring to a number of international instruments and national case law,
the Court asserted: ‘For although there is no universal agreement as to the precise extent of
the ‘‘human rights and fundamental freedoms’’guaranteed to all by the Charter, there is at pre-
sent no dissent from the view that the guaranties include, at a bare minimum, the right to be
free from torture. This prohibition has become part of customary international law.’
 Non-retroactivity of Criminal Law 19

before at least a part of the conduct allegedly attributable to Habre¤).42 This

Convention sets out an extremely detailed definition of the elements character-
izing the criminalized conduct (at Article 1) and obliges states to establish
their jurisdiction over alleged offenders or to extradite them (at Article 5).
Hence, it is undisputed that, at the time of the alleged commission of the rele-
vant facts, torture was criminalized in Senegal pursuant to a rule of interna-
tional law, clearly applicable both to nationals and foreigners. Arguably, this
should have been taken into account by Senegalese courts when they pro-
nounced on the charges of torture made against Habre¤ in the early 2000s.
Nevertheless, since this is now a moot point, what counts is consideration of
the current situation. This can be summed up as follows: all the crimes covered
by the Senegalese legislative amendments were already criminalized years, if
not decades, before the alleged commission of the facts by Habre¤, under rules

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of international law (of conventional and/or customary nature). In addition,
other elements support the legality of the Senegalese legislative changes:
(i) the relevant rules of international law criminalizing torture, genocide and
war crimes explicitly require states to adopt the necessary legislation to give
effect to them; (ii) at least with respect to torture and genocide, it can be con-
tended that their prohibition also amounted to a general principle of law
common to all nations of the world, as many states have adopted national legis-
lation criminalizing such conduct; and (iii) in Senegal the relevant rules of
international law have a constitutionally established primacy over ordinary
law.43 Therefore, despite what the holding of the Court in the Habre¤ case sug-
gests, the Senegalese legislative action was not in violation of the principle of
non-retroactivity of criminal law.
The contention could be made that trying Habre¤ under Senegalese legisla-
tion would nonetheless be in violation of the nullum crimen sine lege principle,
since Chadian legislation did not criminalize ç at the time of the alleged com-
mission ç crimes against humanity and torture. In other words, Habre¤ could
have not been aware of the prohibition of those crimes, since in his country at
the time these were not considered criminal offences. This argument, however,
is not watertight. As pointed out above, in 1982^90 the acts allegedly com-
mitted by the former dictator were nonetheless criminalized under Chadian
legislation as ordinary offences (murder, grievous bodily harm, etc.). Therefore,

42 For a thorough overview over the crimes allegedly committed by Habre¤, see the report prepared
by the Chadian government commission of inquiry set up after the deposition of Habre¤’s
regime, Chad: Report of the Commission of Inquiry into the Crimes and Misappropriations
Committed by Ex President Habre¤ , His Accomplices and Accessories: Investigations of Crimes
Against the Physical and Mental Integrity of Persons and their Possessions, 7 May 1992, available
online at http://www.usip.org/files/file/resources/collections/commissions/Chad-Report.pdf
(last visited 13 December 2010). See also R. Silva, J. Klingner and S. Weikart, State Coordinated
Violence in Chad under Hisse' ne Habre¤ : A Statistical Analysis of Reported Prison Mortality in
Chad’s DDS Prisons and Command Responsibility of Hisse' ne Habre¤ , 1982^1990 (Report by
Benetech’s Human Rights Data Analysis Group to Human Rights Watch and the Chadian
Association of Victims of Political Repression and Crimes), 3 February 2010, available online at
http://www.hrdag.org/about/chad.shtml (last visited 13 December 2010).
43 Art. 79 Constitution of the Republic of Senegal.
20 JICJ 9 (2011), 5^23

Habre¤ should have been aware of the prohibition of that conduct, regardless of
its legal characterization at the time in Chadian law.

6. The ad hoc Tribunal Solution Suggested by the

ECOWAS Court
In the Court’s view, there is only one way in which Senegal can carry out the
mandate assigned to it by the African Union: by setting up an ad hoc Tribunal
‘in accordance with the international custom which has emerged in similar
situations’. The legal basis of this ad hoc tribunal would reside in Article 15(2)
of the ICCPR; however, it would be left to Senegal to decide on its structure.44

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In a somewhat inconsistent manner, the Court concludes that any other
option, including ç one can reasonably assume ç a domestic trial, would be
in violation of the principle of non-retroactivity.
The Court’s legal reasoning is tainted with many flaws concerning: (i) the ex-
istence of an ‘international custom’ to set an ad hoc tribunal; (ii) the undefined
nature of such ad hoc tribunal; (iii) the application of Article 15(2) of the
ICCPR; and (iv) the different nullum crimen sine lege standard suggested with re-
spect to ad hoc tribunals.
The Court’s initial consideration is, at a first glance, politically compelling: it
is indeed true that most of the cases involving former Heads of State or inter-
national crimes were heard before special or ad hoc tribunals (e.g. Hermann
Go«ring, Slobodan Milos› evic¤, Saddam Hussein or Charles Taylor). Nonetheless,
it is noteworthy that, for example, where trials have been conducted through
these types of tribunals, such a decision was motivated by the consideration
that domestic tribunals were either unwilling or unable to act.45 In the case
of Hisse'ne Habre¤, it would seem that Senegalese courts are now willing and
able to prosecute and try the former Chadian dictator.
Furthermore, it remains unclear what the Court means by referring to
‘ad hoc or special tribunal’. Does it refer to an international ad hoc tribunal
like the ICTY or the ICTR, or to a hybrid tribunal, like the Extraordinary
Chambers in the Courts of Cambodia or the Special Tribunal for Lebanon, or
instead to a domestic tribunal with a special jurisdiction, like the Supreme
Iraqi Criminal Tribunal? Arguably, the latter option should be discarded if, ac-
cording to the Court, Senegal could not try Habre¤ before its domestic courts

44 ‘Toutefois, la Cour rele've que la mise en oeuvre du mandat de l’Union Africaine doit se faire
selon la coutume internationale qui a pris l’habitude dans de telles situations de cre¤er de juri-
dictions ad hoc [sic] ou spe¤ciales. L’expression «.. juridiction compe¤ tente ..» contenue dans ce
mandat ne signifie rien d’autre que la mise en place d’un cadre judiciaire ad hoc [sic] dont la
cre¤ation et les attributions trouveraient leur bas relief dans les dispositions de L’article 15.2 du
Pacte International sur les Droits Civils et Politiques et que le Se¤ne¤gal est charge¤ de proposer
au mandant les formes et modalite¤ s de mise en place d’une telle structure.’ ECOWAS
Judgment, x 58 (emphasis in the original).
45 This tendency is also reflected in the complementarity system on which the ICC is based. See
Arts 1, 15, 17^19 ICCSt.
 Non-retroactivity of Criminal Law 21

without violating the principle of non-retroactivity, only an international or a

hybrid solution would be consistent with this finding. What is even more strik-
ing is that the Court does not point to the legal foundation and the scope of
the international custom to set up an ad hoc tribunal it propounds, which re-
mains obscure. Although the establishment of ad hoc tribunals may constitute
a broad and consistent practice concerning complex trials of high-level cul-
prits, more support would be required to reach the conclusion that such prac-
tice has turned into a customary rule. Besides, what would be the content of
this rule? The fact that a number of trials of Heads of State or involving inter-
national crimes have taken place before ordinary national courts shows that
the use of ad hoc international tribunals is simply a practice that states decide
to opt for whenever the national judicial solution is unworkable.46 Moreover,
the proposed solution begs a question: could Senegal simply establish an ad

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hoc tribunal on its own, or should it enlist other states in this quest? If the
latter solution is preferred, would one other state suffice, or does the ECOWAS
Court rather require a pan-ECOWAS criminal judicial institution?
The Court’s reasoning is also problematic in that it grounds the ad hoc tribu-
nal’s jurisdiction in Article 15(2) of the ICCPR, which refers to ‘general prin-
ciples of law recognized by the community of nations’ as the source for
criminalizing certain conduct. A preliminary observation is called for: crimina-
lizing conduct on the sole basis of a general principle of law could turn out to
be an uphill battle and, to the best of my knowledge, has no precedent in do-
mestic and international proceedings. Furthermore, should these general prin-
ciples be relied upon as the only source of criminalization of conduct, it is
submitted that the principle of legality would seriously be at risk. First, the re-
quirements for the existence of a general principle of law are less stringent
than those relating to customary international rules47; therefore its level of ac-
cessibility and foreseeability would be very dubious. Second, general principles
of law have mainly been relied upon to fill gaps in treaty or customary-based
crimes. And finally, as already said, the purpose of the reference to general
principles of law in Article 15(2) is to offer the judiciary a subsidiary source
when primary sources of international law are insufficient.
Respectfully, the Court’s finding would not only prove unprecedented and
potentially unfair, but also erroneous. As a matter of fact, in the period when
the facts allegedly committed by Habre¤ took place, the criminalization of geno-
cide, crimes against humanity, war crimes and torture was set out at the level

46 For example, ICTY was established by the UN Security Council, acting under Chapter VII of the
UN Charter, on the consideration that ‘in the particular circumstances of the former
Yugoslavia the establishment as an ad hoc measure by the Council of an international tribunal
and the prosecution of persons responsible for serious violations of international humanitarian
law would enable this aim to be achieved and would contribute to the restoration and mainten-
ance of peace’. SC Res. 827, 25 May 1993, x 6.
47 As authoritatively held by the ICJ, the existence of a customary norm is established ‘by induc-
tion based on the analysis of a sufficiently extensive and convincing state practice, and not by
deduction from preconceived ideas’. Delimitation of the Maritime Boundary in the Gulf of Maine
Area (Canada v. United States of America), ICJ Rep (1984) 246, x 111.
22 JICJ 9 (2011), 5^23

of international treaty and customary law. Hence, the Court has wrongly
applied Article 15(2). It should have referred to Article 15(1) for two main rea-
sons: (i) the relevant offences were criminalized under international rules at
the moment of their alleged commission, and (ii) there was no general prin-
ciple of law common to all nations prohibiting crimes against humanity and
war crimes at the moment of the facts allegedly committed by Habre¤.
Another flaw in the Court’s reasoning is closely linked to the issue I have just
discussed. By referring to Article 15(2) as the legal basis for the jurisdiction of
the ad hoc tribunal, the Court seems to suggest that the tribunal would not
be bound by the same notion of nullum crimen sine lege applicable to domestic
courts. Indeed, while Senegal could not try Habre¤ on the basis of an incorpor-
ating law (because the conduct criminalized therein was not criminal at the
moment of its alleged commission), it would be legitimate for an ad hoc tribu-

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nal to try Habre¤ on the basis of general principles of law recognized by all
nations of the world. Such reasoning appears contradictory: since a rule of
international law criminalizing the relevant conduct existed prior to its com-
mission, any ad hoc tribunal should try Habre¤ on the basis of Article 15(1),
and not on the basis of the less stringent Article 15(2). Furthermore, even if
such a rule did not exist, domestic courts, just as any ad hoc tribunal, could
resort to general principles of law. In other words, there is no legal basis ac-
cording to which Article 15(2) could only be applied by ad hoc tribunals. It is
also interesting to note that, should an ad hoc international tribunal be set up
to try Habre¤, such tribunal would certainly need to adopt a Statute referring
to the relevant rules proscribing the crimes at issue. This Statute, just as the
national incorporating law, would obviously apply retroactively. Hence, if one
had to agree with the Court’s reasoning that the incorporating legislation vio-
lates the principle of non-retroactivity of criminal law (even when, as in the
case at issue, the conduct in question was already criminalized under interna-
tional law), one would fall into a glaring contradiction: while the national
incorporating law would not apply retroactively, the statute of an ad hoc tribu-
nal ç which has the same function as the incorporating law, namely that of
determining the jurisdiction of the judicial organ ç could do so.

7. Concluding Remarks
The ECOWAS Court’s ruling in the Habre¤ case embraces surprisingly contrast-
ing elements. On the one side, it correctly interprets Article 15(1) of the UN
Covenant on nullum crimen sine lege. If an act is lawful under national law, but
nonetheless criminal under international law, it can be prosecuted by an inter-
national or a national court, provided that they have jurisdiction over the rele-
vant crimes at the moment of prosecution.
On the other side, the Court hides behind the unclear institutional solution
of the ad hoc tribunal. The Court does not rely on Article 15(1), which, in my
opinion, would have undoubtedly allowed Senegal to try Habre¤ under
 Non-retroactivity of Criminal Law 23

international law. Rather, it wrongly refers to ‘general principles of law’ on

which an ad hoc tribunal should predicate its establishment and mandate.
It is regrettable that the Court was not consistent in its findings. Its reason-
ing was probably guided by political considerations, such as the will of the
African Union not to put the burden of the trial of a former African leader on
another African country, or the wish to deliver a collective message against im-
punity in the continent. However, the Court’s inconsistency backfires on the
political solution itself. In holding that a Senegalese incorporating law would
violate the principle of non-retroactivity, the Court fails to notice that any
ad hoc tribunal statute would fail for the same reasons. Rather than looking
at the time of the adoption of the law, the Court should have looked to the ex-
istence of a rule of international law applicable at the moment of the commis-
sion of the facts.

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In sum, this ruling is a fairly positive development in the Hisse'ne Habre¤
saga. The Court took a step forward (in that it correctly interpreted Article
15(1) of the ICCPR), but then stumbled in an effort to prevent Senegalese
courts from adjudicating the alleged crimes of Habre¤. Admittedly, international
justice cannot proceed by leaps and bounds, particularly where the crimes at
stake are attributed to leaders or former leaders. There comes a point where
the principle of accountability should prevail and the dragging out of proceed-
ings must come to an end. The traditional obstacles put in place by state sover-
eignty must be set aside and justice allowed to run its course, both to heed
the demands of the victims and to reaffirm universal values.