Non-retroactivity of criminal law : a new chapter in the Hissène Habré saga

Published: 22 January 2011In 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 Hissène Habré for allegedly committing, from 1982 to 1990, torture and crimes against humanity 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 Habré almost 20 years before. Therefore, an ad hoc tribunal should be tasked to try Habré 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)